Supreme Court New South Wales Medium Neutral Citation: R v Evans (No 3) [2017] NSWSC 1523 Hearing dates: 30 June & 12 October 2017 Decision date: 10 November 2017 Jurisdiction: Common Law Before: R A Hulme J Decision: Imprisonment for 48 years with a non-parole period of 36 years. Catchwords: CRIME – sentence – murder – victim attacked whilst bound and defenceless – weapon used to inflict severe blunt head injury – intended to kill – not within extreme category requiring life sentence, but very close CRIME – sentence – other offences – rural homes targeted at night when occupants most vulnerable – offender armed with weapon – one break enter and steal in circumstances of special aggravation close to the top of the range of objective seriousness and one well above the mid-range – former causing a fractured skull and bruising to the brain – three detain without consent to obtain advantage whilst in company (one also occasioning actual bodily harm) well above the mid-range CRIME – sentence – offender's personal circumstances – link between Attention Deficit Hyperactivity Disorder and subsequent drug addiction – moral culpability reduced for breaking and entering to steal, but not for violence – no remorse – no mitigating factors in s 21A(3) Crimes (Sentencing Procedure) Act 1999 present – no special circumstances – aggregate sentence imposed Legislation Cited: Crimes Act 1900 (NSW) ss 18, 19A, 86, 112 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 61 Cases Cited: R v Sinclair [2017] NSWSC 686 Category: Sentence Parties: Regina Ryan David Evans Representation: Counsel: Mr C Maxwell QC (Crown) Mr R Webb (Offender) Solicitors: Solicitor for Public Prosecutions Criminal Defence Group File Number(s): 2014/309094 Judgment 1. HIS HONOUR: Ryan David Evans ("the offender") appears today for sentence in respect of a number of extremely serious offences after he was found guilty by a jury on 30 May 2017. 2. Each offence is contrary to provisions of the Crimes Act 1900 (NSW). The details are as follows: Count Offence Provision At Badgerys Creek on 30 May 2014 s 18(1)(a); s 19A 1 Murder of Keith Cini Maximum: Life SNPP 20 years s 112(3) 3 Break, enter and steal in circumstances of special aggravation, namely being in company and intentionally wounding Luciana Boldi Maximum: 25 years SNPP 7 years At Medway on 28 April 2014 s 112(3) 4 Break, enter and steal in circumstances of special aggravation, namely being in company and intentionally inflicting grievous bodily harm on Brett Delamont Maximum: 25 years SNPP 7 years 5 Detain Alana Bush without her consent with intent to obtain an advantage, namely a financial advantage, while in company s 86(2)(a) Maximum: 20 years 6 Detain Kirby Delamont without her consent with intent to obtain an advantage, namely a financial advantage, while in company s 86(2)(a) Maximum: 20 years 7 Detain Jack Lisle without his consent with intent to obtain an advantage, namely a financial advantage, while in company and occasioning actual bodily harm s 86(3) Maximum: 25 years 1. Count 2 of the indictment alleged an offence of wounding Ms Luciana Boldi with intent to murder her but the jury returned a verdict of not guilty. It may be inferred that there was a reasonable doubt about whether the Crown had proved an intention to kill. The verdicts of guilty in respect of all of the other counts in the indictment were unsurprising as the prosecution case was a very strong one. 2. There was a sentence hearing on 30 June 2017 but it was adjourned to enable the offender's lawyers to gather more evidence. Regrettably, that process was protracted. A psychological report was obtained but there arose a question about whether certain matters could be verified. Ultimately, a report by a psychiatrist was obtained and there was a further hearing on 12 October 2017. Facts 1. It is necessary that I set out the factual basis for the offences in a manner that is consistent with the jury's verdicts. It is trite but nonetheless necessary to say that where disputed matters are adverse to the offender it is necessary that I be satisfied on the criminal standard of proof, whereas matters favourable to the offender need only be established on the balance of probabilities. 2. The offences arose from two home invasions committed by the offender, the first at the home of Ms Alana Bush and Mr Brett Delamont at Medway in the early hours of 28 April 2014 and the second at the home of Mr Keith Cini and Ms Luciana Boldi at Badgerys Creek in the early morning of 30 May 2014. The Medway home invasion was committed in the company of two men who pleaded guilty and gave evidence against the offender. I will refer to them by the pseudonyms "Kurt Sinclair" and "Sam Franklin". The Badgerys Creek home invasion was committed in the company of just Mr Sinclair. Home invasion at Medway on 28 April 2014 The plan is made 1. Mr Brett Delamont (aged 50), Ms Alana Bush (aged 49) and their daughter Kirby Delamont (aged 20) lived in a large house on a 30 acre rural property surrounded by similar acreage homesteads at Medway. Kirby Delamont's boyfriend, Jack Lisle (aged 20), would frequently stay overnight. 2. Kurt Sinclair, Sam Franklin and the offender were all ice addicts. The offender and Sinclair lived in the Macarthur region, south-west of the Sydney metropolitan area. Franklin was a long-distance truck driver who lived with his wife and children in Taree. 3. Sinclair knew the Medway property and the Delamont/Bush family quite well as he had been in a relationship with Kirby Delamont when he was aged 18. 4. The offender was with Sinclair and Franklin in Taree over the weekend of 26-27 April 2014. They were each desperately short of money and Sinclair told the others that there was a good chance of there being a substantial amount of money that could be stolen at the Delamont home at Medway. They formulated a plan to carry out a home invasion. Sinclair drew a "rough diagram" of what he knew of the house and he told the others who would be there and what he thought they should do. He told the offender that there would be at least one gun in the house. 5. On the Sunday evening the three travelled from Taree to the offender's home at Elderslie (near Camden). They gathered various items including rope, duct tape, face coverings, gloves and torches. It was the offender's idea to use rope to tie up the occupants but Sinclair suggested that using duct tape would be better. The offender also took a pick handle. Sinclair told him that it would not be necessary (he gave evidence of saying that Mr Delamont "was not a terribly confrontational man and that excessive use of violence probably would not be required"), but the offender replied, "Just in case". 6. After gathering these various items and smoking some ice the three men embarked upon the 80km journey to Medway. They travelled on rural roads so as to avoid the main Sydney - Melbourne highway. 7. Meanwhile, the two couples at Medway had retired at a modest hour to their respective bedrooms at opposite ends of the house. The house lights were off and external doors were closed, but many were unlocked. 8. When the three men arrived at Medway the car was parked outside the property (after the men had earlier removed the number plates to avoid identification by neighbours). At Sinclair's direction they approached the house along a secondary driveway. Sinclair led the others around to the back of the house where they entered by an unlocked laundry door. 9. The plan was for the offender and Franklin to go to the master bedroom while Sinclair looked around to see if there was anyone else in the house. Events in the master bedroom 1. Sinclair directed the offender and Franklin towards the master bedroom where Alana Bush and Brett Delamont were asleep. Upon entering the bedroom the offender immediately proceeded to strike Mr Delamont with the pick handle. Franklin's evidence was that the offender "whacked him over the head with the pick handle … it was all pretty full-on". Mr Delamont was asleep at the time. Franklin thought that the first blow was to the head and there was another to the body. When he was asked what sort of force the offender used he replied, "Just hard enough to cave his head in". On any view, they must have been extremely forceful blows because Mr Delamont was rendered unconscious. 2. Ms Bush awoke and immediately became aware of the presence of the two men in the room. She began to scream as loud as she could, hoping to wake the others at the far end of the house in order to alert them to the danger. 3. Ms Bush saw the offender standing on Mr Delamont's side of the bed holding the weapon while the other male, Franklin, was standing on her side of the bed. She screamed and the offender angrily told her, "Shut up, shut up or I'll hit him again". When she continued to scream he lunged across the bed and hit it where Mr Delamont was lying. Mr Delamont was not responding; he was convulsing and his head was bleeding. 4. I pause here to say that Ms Bush did not identify any of the men. They wore items to conceal their appearance as well as gloves. In this narrative I am attributing names based upon the evidence of Sinclair and Franklin. There was some dispute as to whether it was the offender who struck Mr Delamont but I am satisfied on the evidence of Sinclair and Franklin that it was. 5. The lights were off but as Franklin had a torch Ms Bush was able to see the men and their movements. She could see that Mr Delamont was not moving and that there was a large amount of blood around his head and on the bedding. 6. The offender bound Mr Delamont's hands in front of him with one roll of duct tape, while Franklin used a second roll of tape to bind Ms Bush's hands. 7. It appeared to Ms Bush from the outset that the offender was the dominant "aggressive" male. He was screaming at her and constantly moving. She described Franklin as the "passive male". 8. The offender demanded, "Where's the cash?" Ms Bush told him that she did not know. He said, "Where's the cash or I'll hit him again". She pointed to a chest of drawers. The offender went to them and took a bundle of cash, $4000. 9. The offender demanded more money: "There has to be more". Ms Bush tried to stall him, telling him that she had to think and not to hurt her husband because he did not know where the money was. There were more threatening words. Eventually she directed the offender to another chest of drawers on her side of the bedroom. The offender came around the bed and searched the drawers and took more cash, about another $4000. 10. No doubt using the information previously provided by Sinclair, the offender demanded, "Where is your gun?" Ms Bush was shocked that he knew they had a firearm. She directed him to a walk-in wardrobe. The offender and Franklin entered the walk-in wardrobe and located Mr Delamont's .22 magnum rifle in a case behind the door. They returned to the room and the offender asked for ammunition. Ms Bush was terrified what the males would do with a loaded gun and despite knowing where the ammunition was she screamed, "I don't know where they are" and "we don't have any". 11. At some point during these events, the offender demanded to know where there was more money. Ms Bush told him there was a small amount of money in a tin in the office. He demanded, "Where are the phones?" She told him they just had mobile phones. The men took hers and Mr Delamont's phone, as well as her iPad. 12. The offender and Franklin stood at the bottom of the bed and the offender demanded, "Tell me who else is in the house". She took a long time to answer because she did not want to reveal the presence of her daughter. Eventually, but reluctantly, she told the intruders that her daughter and Mr Lisle were at the other end of the house. The offender leaves the master bedroom 1. The offender left the master bedroom and turned on a hall light which allowed for further light in the bedroom. 2. Franklin stayed in the bedroom with Ms Bush. She pleaded with him about the offender. She asked him to "stop the crazy guy going to my daughter's bedroom". When he replied, "Nobody is going to get hurt" she said (referring to her husband), "Look at the hole in his head". He threw her a t-shirt to hold against his head to stem the bleeding. She said, "We need help. He is bleeding. He is shaking. I think he is going to die". He said that he would ring someone when they left. He then asked her to put her feet out of the bed and he taped her ankles together with duct tape. Events in Ms Delamont's bedroom 1. There were three accounts of what occurred in Kirby Delamont's bedroom: hers, Mr Lisle's and Sinclair's. The accounts of Ms Delamont and Mr Lisle are similar but (understandably in the circumstances) not identical, whilst Sinclair's is considerably different. In sentencing Sinclair I rejected his version. 2. I am satisfied that what occurred is that Mr Lisle awoke to Ms Bush screaming from the other end of the house and he woke Ms Delamont. Mr Lisle went to use his phone but before he could do so a man with "a pole" or "a bar" came into the bedroom followed by another man. I am satisfied that the first man was the offender with the pick handle and that Sinclair was the other man. Ms Delamont also said that she saw two men enter. 3. Mr Lisle pulled the blanket over himself and lay on top of Ms Delamont to protect her. The offender struck at the bed with the pick handle a number of times, hitting Mr Lisle on the stomach. Demands were made: "Face down, Face down" and "Give us your fucking phones and wallets". Ms Delamont and Mr Lisle were terrified and stayed still under the covers. They could hear movement throughout the bedroom. At some stage their phones were taken. 4. After a few minutes they heard a male voice direct them to sit up in the bed with their eyes closed. They sat up with their eyes mostly closed. A man was standing next to Mr Lisle, shining a torch in his eyes. The two men then bound Ms Delamont's and Mr Lisle's hands and feet with duct tape and put pillowcases over their heads. Mr Lisle and Ms Delamont both feared that she was going to be raped. Back in the master bedroom 1. Sinclair entered the master bedroom as Franklin was taping Ms Bush's ankles together. He pulled Mr Delamont's feet out from under the covers and taped his ankles with duct tape. He used a piece of rope to tie up Mr Delamont's hands over the top of the duct tape which was already there. Mr Delamont was shaking and convulsing at this point. Despite her hands being bound, Ms Bush continued trying to hold the shirt to his head to stem the bleeding. 2. Franklin and Sinclair obtained pillowcases and placed them over Ms Bush's and Mr Delamont's heads. This prompted Ms Bush to believe that they were now going to be killed. She pleaded, "Please don't kill us". Franklin responded, "Nobody is going to get hurt". The men left the room soon after. 3. I am satisfied that while these events were occurring in the master bedroom the offender was elsewhere in the house looking for cash or property to steal. The three men left the house shortly after. The aftermath 1. Ms Bush managed to free her hands and feet from the tape. She crept down the hallway to the office where there was a landline phone. She rang 000 while hiding behind a desk, unsure whether the men were still in the house. Her call was logged at 1.29am. Police and ambulance officers were dispatched immediately. 2. Ms Bush then went to Ms Delamont's bedroom and cut the bindings from the hands and feet of Ms Delamont and Mr Lisle. She told them to help Mr Delamont. They went to the master bedroom where they found Mr Delamont in the foetal position, bound by duct tape, violently shaking with his face covered in blood. 3. Police arrived at the scene at 1.41am. 4. It is estimated the intruders were inside the home for 15-20 minutes. They went through various rooms including the study, kitchen and living area. They left with over $8000 in cash; the firearm and its case; a number of handbags; a watch; Mr Delamont's wallet; four mobile phones; two iPads; and a shopping bag. 5. The men returned to Elderslie. They then went out to buy drugs, spending $3200 on ice which they shared. $200 was given to the offender's father for board and they shared the balance of the proceeds. Injuries 1. When paramedics arrived at the Medway home they stabilised Mr Delamont before taking him to Liverpool Hospital. Upon examination he was found to have suffered: a. a wound to the right side back of his head 3cm wide and 1 cm deep requiring suturing. b. bruising to the left temporal area; and c. a fractured skull and bruising to the brain. 1. Head injury experts believe Mr Delamont was struck around the head a number of times. He remained in hospital for two weeks under the care of a neurosurgical team. For the first five days he was suffering Post Traumatic Amnesia. After release from hospital he was placed under a treatment plan with the Liverpool Brain Injury Rehabilitation unit. He continued under a treatment plan and the care of Dr Ahamed Veerabangsa. 2. At first, Mr Delamont needed to redevelop everyday skills such as walking, eating, dressing and showering. He suffered language impairment. He required ongoing speech therapy, occupational therapy and physiotherapy. He needed to learn to drive again. His wife and daughter became his care providers. 3. In June 2014 he was examined by Dr Veerabangsa. It was noted that his speech was functional but he continued to suffer reduced attention, impairment of short term memory, reduced problem solving skills, reduced hearing in his left ear, vertigo and impaired balance. He continued with various therapies. 4. Dr Veerabangsa carried out an assessment on 25 November 2015, some 19 months post injury. Mr Delamont still showed difficulties and limitations, including reduced attention regulation and information processing, which impacted upon his ability to retain information and to learn and remember new information. Dr Veerabangsa reported that Mr Delamont sustained: "a moderate to severe traumatic brain injury as a result of the alleged assault on 28/04/2014. He received separate injury to the right side and the left side of the head as a result of impact from a blunt object. He has psychological and cognitive/memory difficulties as a result of the injuries sustained. At one year and nine months prognosis is good but long term if not permanent impairment is likely." 1. Mr Delamont does not recall the incident at all. He said that he is unstable on his feet and at times has fallen. He has suffered episodes of vertigo; for a number of weeks he suffered more extreme vertigo and at those times he has been unable to function at his pre-injury level, suffering nausea and being unable to get out of bed. He underwent further specialised treatment in relation to this. 2. Mr Delamont also suffers ongoing fatigue; he is unable to multi task; and sometimes has difficulty holding conversations. His sense of smell is no longer consistent and at times it is non-existent. His intellectual and business skills have been greatly reduced. He is no longer able to carry out his managerial role as the owner and director of his drilling company which employed approximately 12 staff members. He is unable to focus for more than short periods of time. 3. Mr Lisle suffered a red welt mark on his torso as a result of being hit when under the covers by the male with the weapon. Home invasion at Badgerys Creek on 30 May 2014 1. Mr Keith Cini was 69 years of age. He lived at Badgerys Creek with his partner, Ms Luciana Boldi, who was aged 67 years. They lived in a three bedroom home on a small farm on Elizabeth Drive. They occupied separate but adjacent bedrooms. 2. Mr Cini owned and operated Keith Cini Pty Ltd, a business which sold pigs to restaurants in the Sydney metropolitan area. He operated the business from his residential address. 3. Mr Cini employed a number of people in the day-to-day running of the business. The normal routine included delivering pigs to various locations every Wednesday and Thursday. Payments were generally received in cash which he would secure in a pin-coded safe located in a locked room (the study) in his home on Thursday night for deposit at the bank every Friday. The amount in the safe on any given Thursday night and Friday morning varied between $5,000 and $60,000. 4. The offender had previously worked for Mr Cini as a casual delivery driver and was thereby aware of how the business operated. The plan is formulated 1. In the weeks leading up to 29 May 2014, the offender and Sinclair planned to carry out a second home invasion as a result of again being in financial difficulties due to their heavy usage of ice. They agreed to target Mr Cini. Sinclair said that the idea came from Patrick and Sean Kenney, former employees of Mr Cini, who told them about the cash that could be expected at the premises on a Thursday night. (The Kenney brothers' evidence in the trial did not support this, but nothing presently turns on that.) The offender and Sinclair discussed it further between themselves. Sinclair asked Sam Franklin if he wanted to participate in another "job" but Franklin declined. 2. In the early hours of 29 May 2014, Sinclair and the offender exchanged a series of text messages in which they discussed carrying out the home invasion that night. They met that afternoon at the offender's home at Elderslie. At about 10.15pm they caught a taxi to the home of a friend of Sinclair's at Rossmore, which is about 14km from Badgerys Creek. Sinclair was carrying a bag with gloves and a balaclava. 3. Aside from a period when the offender went out, apparently to sell drugs, the offender and Sinclair sat around at the Rossmore home, smoking ice and talking until it was time to go to Badgerys Creek. When they arrived at the address they sat in the car for 10 or 15 minutes observing the premises and smoking more ice. The home invaded 1. When Mr Cini and Ms Boldi had retired to their respective bedrooms that evening the external doors were securely locked. Sometime after 3.00 am the offender and Sinclair got out of the car and pulled their balaclavas down. They had with them a pick handle, duct tape and gloves. They entered the property by smashing a front window. Sinclair cut his finger causing it to bleed. 2. Once inside the property the intruders came into contact with Mr Cini. It would seem that Mr Cini was first attacked in his bedroom on the basis of his blood being found there. His blood was found in various other parts of the house as well, indicating that the intruders caused him to move around the house in order to facilitate them getting access to the safes. 3. At some point both intruders had Mr Cini outside Ms Boldi's bedroom door. Ms Boldi was woken by Mr Cini calling "Luce". She got out of bed, turned on the light and opened her bedroom door. She saw Mr Cini in the hallway near one or two figures dressed in dark clothing. (For present purposes it does not matter whether it was one or two; I am satisfied that the offender was with Mr Cini at this point.) The offender approached Ms Boldi. She tried to close her door and stood with her back to it but the offender forced his way into her room. 4. The offender struck Ms Boldi to the head with the pick handle. He kept hitting her and she put her arms up to protect her face. She fell to the floor behind the door after two or three blows. She was lying on her side with her hands over her face. She was hit further on the arms and the hands. She asked the offender to stop but he did not, so she stopped moving. She said that he stopped when he thought she was dead. At that point she heard the other intruder say, "That's enough Brian". I am satisfied that this was Sinclair saying, "That's enough Ryan". 5. Photographs later taken by a crime scene examiner showed a large amount of blood on the back of Ms Boldi's bedroom door and the wall beside it on the inside of the bedroom. 6. At some stage the offender violently assaulted Mr Cini in the hallway, including by hitting him in the head with the pick handle. It was Mr Sinclair's evidence that Mr Cini was on the floor and bleeding from the head when the offender directed him to tape him up while the offender went to look for money. Sinclair applied duct tape to Mr Cini's feet but was then called away to assist the offender. When they returned, Mr Cini was sitting up attempting to remove the tape. The offender then struck him five or six times to the head with "extreme force". According to Ms Jacinta Delander, the offender said some time later that "it was like [I] couldn't control myself … [I] just kept going until he [Mr Cini] didn't look like a person anymore and he was covered in blood". 7. Ms Boldi remained lying on her bedroom floor. During this time the offender and Sinclair were moving from room to room, ransacking the house and trying to gain entry to the locked study where Mr Cini's money was secured in a safe. One of the intruders re-entered Ms Boldi's bedroom, kicked her leg and then ransacked the room. She remained still, pretending to be dead. 8. Mr Sinclair said there was a conversation in the car as he and the offender left the scene. The offender spoke of being "pretty sure he's fucking dead" and Sinclair told him that he could not be sure of that. The offender is said to have replied, "Pretty sure I do. Pretty sure he died when I caved his fucking skull in". The aftermath 1. When it became quiet and apparent that the intruders had left, Ms Boldi got up and found Mr Cini lying on the floor in the hallway. She made a call to the emergency number. The call was logged at 4.04am. 2. The first police arrived about 10 minutes later. Officers found Ms Boldi crying and saw that she had blood all over her face. They asked what happened and she replied, "He is around there and isn't moving." 3. The officers found Mr Cini lying on his side in the hallway. His ankles were taped together with duct tape and there was duct tape on his wrists. The plasterboard wall near his head had a hole in it and had been sprayed with blood. The paramedics who arrived soon after noted that Mr Cini had sustained significant head injuries. He was pronounced deceased. 4. Ms Boldi was treated for multiple head and arm injuries and was taken to hospital. 5. A crime scene examination was carried out. The door to Ms Boldi's bedroom had been forced off its hinges and was lying inside the room. The intruders had ransacked the study but had been unable to access the safes, which were bolted together and fastened to the floor. A number of sets of keys were found nearby, indicative of the intruders having tried them in their attempts to open the safes. One of the safes was later found to contain $18,248 in cash and $3,242 in cheques. Post mortem findings 1. Mr Cini was found to have died as a result of "blunt head injury". There were numerous injuries involving the head, torso and extremities. It is unnecessary to spell them all out. In short, he sustained a very severe beating, principally to the head where there were various abrasions, contusions and wounds; skull and jaw fractures; and catastrophic brain injury. Injuries to Ms Boldi 1. Ms Boldi was taken to Liverpool Hospital. Her injuries were recorded as being: "multiple scalp lacerations, multiple head and finger lacerations and fractures, swollen and bruised right cheek, multiple bruises to bilateral shoulders and forearms, right shin bruising and multiple abrasions, right distal ulnar shaft fracture." 2. The scalp lacerations were washed out, repaired with stitches and dressed under local anaesthetic. Her injuries were said to be consistent with "Multiple episodes of blunt trauma to face/head, neck, shoulders, trunk, upper and lower limbs." She suffered a fracture of her right wrist, which was managed by an orthopaedics team. The treating doctor stated, "Her multiple lacerations to scalp, forehead and finger would leave permanent scaring that may be disfiguring." 3. Ms Boldi was referred to the care of Dr Ian Yuen, consultant hand surgeon, for treatment of the hand injuries. She was transferred to Fairfield hospital on 1 June 2014 and underwent surgery on her hand on 2 June 2014. Dr Yuen provided an expert statement dated 12 December 2014 in which the injuries were recorded as: "alleged assault resulting in right distal ulnar fracture, left middle finger extensor laceration, left ring finger flexor laceration and proximal … fracture left.. nail bed injury and .. Fracture." He found her injuries to be consistent with "being struck by a blunt object, and being cut by a sharp object a number of times." 4. Dr Yuen's opinion was: "she will have permanent loss of function, strength and range of motion in her left hand due to the injury (despite her excellent compliance post operatively with hand therapy)." Arrests 1. Sam Franklin was arrested on 20 October 2014. He was interviewed and told police about his and the others' involvement in the Medway home invasion. 2. The offender and Sinclair were arrested (separately) on 21 October 2014. They both exercised their right to silence and declined to be interviewed. The offender's background and personal circumstances 1. Evidence concerning the offender's background and personal circumstances included testimonials by Mr E L Blakeney, Ms Moira Evans (the offender's sister), Ms Nadine Hansen, Mr Shane Evans (the offender's father), and Mr Ross Evans (the offender's uncle). Oral evidence was given by Ms Moira Evans and Mr Shane Evans. The offender did not give evidence (and did not in the trial). The evidence was supplemented by the reports of Dr Richard Furst, forensic psychiatrist, dated 7 October 2017, and Ms Ann-Marie De Santa Brigida, psychologist, dated 28 July 2017. Both Dr Furst and Ms De Santa Brigida gave evidence on 12 October 2017. General background 1. The offender was born in 1988 and is of Aboriginal heritage. He was aged 25 at the time of the offences and is now 29. 2. The offender told Dr Furst that he was close to his parents but described his mother as having treated him unfairly and cruelly at times when he was growing up. 3. The offender said that he was diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") at about the age of 9. He was prescribed Ritalin for about 4 years but resisted taking it. He said he experienced difficulties at school and did not like attending. He described having short attention, difficulties in reading and writing and found it hard to spell, apparently suffering from dyslexia. He was suspended from school on about 10 occasions for being disruptive in class and truanting. He was expelled in year 10. 4. The offender has held a number of jobs, including as an apprentice mechanic and furniture removalist. In the year before his arrest for the present matter he was working for a company that built trampoline arenas and he was travelling around Australia in charge of a crew of seven men. Dr Furst said that this indicated that the offender had some capacity for organisation and responsibility. 5. The offender was in a relationship with a woman when he was aged 18 to 20 and they had a daughter in 2007. He was living with his daughter, as well as his father and grandmother, at the time of his arrest. 6. The offender has been praised for his voluntary work with indigenous community projects. He has been described generally as a person who is family oriented, as well as a person who is willing to lend a hand to people in need. His younger sister described him as a role model to her. It is a positive feature that the offender has strong family support. 7. The offender's mother is seriously ill. His sister described this as being "one of the biggest impacts" upon him while being held in custody. Drug use 1. According to the history given to Dr Furst, the offender commenced using cannabis from the age of 11 or 12. He used amphetamine and MDMA (ecstasy) from the age of 13-14 and methylamphetamine (ice) from the age of 18-19. He ceased using all drugs at around the time of his daughter's birth in 2007 but relapsed a few years later. He told Dr Furst that he wanted to "party", using drugs and enjoying the lifestyle and the women that came with it. His use of ice increased to the point where he was using up to $1000 worth (3g) per day and required the drug to get going in the morning. Nevertheless, he was able to manage a modest amount of sleep per night, maintained a reasonable appetite and was able to work. He also sold drugs to help support his habit. 2. Ms Moira Evans, the offender's sister, said that he became involved with using ice when he was about 17 or 18. He then abstained for a period but she became aware in 2014 that he was using drugs again. He told her that he was "just out having a little bit of fun". She recalled that he lost weight and was overly energetic. 3. Ms Hansen described the offender as loud, energetic, ignorant and rude when he was on drugs but she had never seen signs of violent behaviour. The offender's father and sister also said that they had never seen him acting violently. 4. Mr Shane Evans, the offender's father, said that his son was on drugs in the period 2007-2009 and then there was a period of abstention. He said that at some stage the offender undertook a course concerned with alcohol, drugs and violence with the Aboriginal Medical Service. However, according to the history the offender gave to Dr Furst, he has never taken part in structured drug and alcohol counselling or rehabilitation. 5. Mr Evans said that his son was experiencing a lot of frustration and tiredness because of his work in the period leading up to the offences for which he has been found guilty. 6. The offender's sister described him as being open about his drug problem and shortly before his arrest for the current matter he was speaking of making positive changes for himself, his daughter and his family. His daughter is aged nine and she, and other family members, visit him in custody. Comments have been made about his improved appearance and attitude in gaol. Criminal history 1. The offender has a criminal history that comprises some offences of violence and sundry others. All matters have been dealt with by magistrates and the outcomes have comprised fines and bonds. The offender was dealt with for offences of assault occasioning actual bodily harm (bond) and assault (caution) in the Children's Court in 2006; three offences of assault and an offence of contravening an apprehended domestic violence order (bond and three suspended sentences of imprisonment) in 2008; an offence of damaging property (bond) in 2009; another offence of damaging property (bond) in 2014; offences of having custody of a knife in public and possessing a prohibited drug (fines) in 2014; and offences of possessing ammunition without a permit etc and possessing a prohibited drug (fines) in 2014. Ms De Santa Brigida's report 1. Ms De Santa Brigida is of the opinion that the offender met the criteria for diagnoses of Substance Use Disorder, severe, in a controlled environment; Conduct Disorder – adolescent onset sub-type; and Intermittent Explosive Disorder. The history provided by the offender included that he had been diagnosed with ADHD when at school. 2. Ms De Santa Brigida agreed when giving evidence that the Intermittent Explosive Disorder did not explain the offender taking a pick handle to both the Medway and Badgerys Creek homes and using it to attack occupants. (T40) 3. Ms De Santa Brigida assessed the offender's risk of recidivism using a self-assessment questionnaire that evaluated both static and dynamic factors. The results showed significant scores on the scales for anti-social personality problems, conduct problems, criminal history, alcohol/drug abuse and anger. The overall result was that the offender fell within "the high-moderate range for recidivism". 4. Ms De Santa Brigida concluded her report with this (somewhat ambiguous) assessment: "It is the assertion of this author that on assessment Mr Evans' involvement in the current offences is not better explained by Psychosis, Bipolar Disorder or Personality Disorder." 1. In her oral evidence, Ms De Santa Brigida said that she had not diagnosed Bipolar Disorder and was "absolutely certain" the offender did not have it. She also appears to have been of the view that Psychosis was not an explanation either. 2. She also referred in her oral evidence to the offender having learning difficulties, dyslexia, anger management problems and conduct problems when he was younger. Dr Furst's report 1. The offender told Dr Furst of having problems with anger which he said was triggered by frustration. He described "going off" very quickly, whether or not he was using drugs. He would get angry on an almost daily basis. He also told Dr Furst that he is "very impulsive". 2. Dr Furst considered that the offender's intelligence was in the average range. He found no indication of any major mental illness, intellectual disability or other developmental disorder. He also found no basis for a diagnosis of Bipolar Disorder. 3. Dr Furst was of the opinion that the offender meets the criteria for the mental disorders of ADHD and Substance Use Disorder (methylamphetamine dependence). 4. Dr Furst agreed with Ms De Santa Brigida that the presence of ADHD in childhood predisposes and/or is linked with the later expression of a number of adult mental health problems, including substance abuse and a greater susceptibility to the effect of illicit substances. Their explanation was that there is a neurobiological foundation to this. Drugs such as speed and ice have a similar effect on the brain to drugs such as Ritalin which were prescribed to treat ADHD; users of such illicit drugs who had ADHD reported feeling calmer and more inhibited or able to control their behaviour. The offender described to Dr Furst being calm and more focused when using ice at a lower dosage but said he would be "a mess" if he used too much of it. 5. In his oral evidence, Dr Furst was taken to the offender's early onset of illicit drug use and he said that "those who use drugs earlier would tend to have a more persistent adult patterned drug use, more indicative of addictive tendencies of vulnerability, perhaps". 6. Dr Furst deferred making a diagnosis of the offender's personality. It was complicated by the presence of a number of features, particularly drug use. He said the offender's "personality and attitudes when drug-free are best assessed over the passage of time with sustained abstinence". 7. Given the offender's denial of the offences, Dr Furst found it difficult to provide a categorical opinion as to the offender's mood and thoughts at the time. A review of the Crown Case Statement and the history provided to himself and Ms Santa De Brigida by the offender suggested that the main motivation for his participation in the offences was his addiction to ice, which is often associated with aggression and violent offending. Dr Furst said that there were no indications that the offender was unaware of his actions or their wrongfulness. He considered that his underlying ADHD and his addiction to ice probably mitigated "to some degree against the seriousness of his actions, especially as addiction is being increasingly recognised as a neurobiological disorder, rather than just a personal moral choice". 8. Dr Furst's recommendations for future treatment were for a further trial of a stimulant medication such as Ritalin or Dexamphetamine; structured psychological programs to address addiction issues; and a program to address anger management and offence-related issues and to improve the offender's level of insight and apparent negative attitudes. He considered that work and/or education would also be of assistance. 9. Dr Furst said that the offender's risk of future offending was difficult to estimate given the lengthy period of time he was likely to spend in custody, uncertainty about his future attitudes, engagement in therapy programs and medication, and potential for amelioration of negative personality trait characteristics over the passage of future decades. He noted that the offender was close to his family, and had worked and studied reasonably successfully in the past. Having regard to these factors and acknowledging the inherent uncertainties involved in prediction of future human behaviour and risk, Dr Furst was of the opinion that the risk of violent re-offending is in the moderate to high range. He explained in his oral evidence, however, that this was not a sound assessment and suggested that it would not be fair to rely upon it. Objective seriousness of the offences at Medway 1. The Medway offences are of considerable objective seriousness. They arose from the planned targeting of a home in a rural location, some distance from neighbours, where the occupants were not only entitled to safety and security, but at a time when they were at their most vulnerable, in bed asleep. The three offenders equipped themselves with means of restraining the occupants and the offender armed himself with a weapon capable of inflicting severe blunt force trauma. 2. The Crown submitted that it should also be found that "well prior to entering Medway [the offender] had determined that he would take the pick handle with the intention of using it with extreme violence on an occupant or occupants of the home". This was said to follow from the manner in which Mr Delamont was attacked. 3. The manner in which Mr Delamont was attacked clearly showed that the offender intended to inflict really serious bodily harm. The attack was so brutal and forceful that the harm sustained by Mr Delamont exceeded that which was necessary to make out the element of grievous bodily harm. However, I can only be satisfied beyond reasonable doubt that the offender went to the premises with the pick handle for offensive purposes in mind; he may have intended extreme violence before arriving at the home but I cannot be certain of this. 4. Mr Sinclair was sentenced in respect of the offence concerning Mr Delamont on the basis that he foresaw that the infliction of such harm was something that could well occur. The present offender must be sentenced on the basis that he actually intended and caused this harm. What makes it even worse is the fact that Mr Delamont was not offering any resistance, or even protest, but was extremely vulnerable, lying in bed asleep. 5. Given all of the circumstances in which it occurred and the severity of his injuries, the objective seriousness of the offence concerning Mr Delamont is of a very high order, close to the top of the range. The offences concerning Ms Bush, Ms Delamont and Mr Lisle are all well above the mid-range. They were each detained by being bound hand and foot by duct tape, after being woken in their beds by multiple offenders (one of them wielding a pick handle). The ordeal must have been utterly terrifying and the ongoing psychological trauma significant. Counsel for the offender was correct to describe what occurred at Medway as "a violent brutal home invasion". Objective seriousness of the offences at Badgerys Creek 1. The Badgerys Creek offences were also the product of a planned targeting of a home at a time when the occupants would be at their most vulnerable. The home was in a semi-rural area with few neighbours in close proximity. Again, the offender and Sinclair equipped themselves with means of restraining their victims and the offender brought along a weapon capable of inflicting severe blunt force trauma. The infliction of physical harm in the case of both victims was callous and gratuitous. 2. There was no dispute for the purposes of sentencing that it was the offender who killed Mr Cini. In any event, I am satisfied of this beyond reasonable doubt based upon the evidence of Mr Sinclair and the combined effect of admissions made by the offender to Mr Shaun Kenney, Mr Franklin and Ms Jacinta Delander. 3. A submission was made by counsel for the offender that I should find that it was a reasonable possibility Sinclair carried out the attack upon Ms Boldi. For example, it was said that "it is possible if not probable that each of the offenders singled out and set upon a single victim in and about the same time". There are a number of problems with this submission. Some of the points raised were not supported by evidence but were purely speculative, for example, that there was a possibility that more than one weapon was brought to the scene. I am satisfied beyond any doubt that there was only the one weapon, as Mr Sinclair said in his evidence. The suggestion that the offender brought it to the scene (which is not disputed) but that Sinclair acquired and used it to attack Ms Boldi before returning it to the offender who used it to kill Mr Cini is fanciful. 4. One of the matters relied upon by counsel for the offender to support the notion that it was Sinclair who attacked Ms Boldi was an opinion she had expressed about the height of her attacker. I would place no reliance upon her opinion in relation to this because of the terrifying circumstances in which she made her observations of that man, and having regard to the fact that, while she was upright for a very brief period at the commencement of the attack, she was then cowering on the floor covering her head and pretending to be dead. The undisputed fact that while Ms Boldi was being attacked she heard the other intruder call out, "That's enough Brian" (which I am satisfied was a mishearing of "Ryan") further puts paid to the submission. I am satisfied beyond reasonable doubt that it was the offender who attacked Ms Boldi. 5. The repeated beating of Ms Boldi with a weapon in her own bedroom, wounding her and causing other quite significant physical injuries after the offenders had violently broken into the home in the middle of the night, is an offence of considerable seriousness; well above the mid-range. 6. I am satisfied beyond reasonable doubt that by going armed to Badgerys Creek the offender contemplated the use of the pick handle to cause serious harm to one or more occupants. I am also satisfied that while Mr Cini was lying in the hallway, injured and bound, completely defenceless and vulnerable, the offender formed an intention to kill him. The offender's counsel described it as "a cowardly, violent and shameful attack". I agree. 7. I accept that it may be possible that there was some physical interaction between Mr Cini and Sinclair while the offender was battering Ms Boldi. However, a contention that the offender attacked Mr Cini in order to rescue Sinclair is one I cannot accept. Sinclair's evidence, which I accept on this aspect, was that Mr Cini was sitting up and trying to remove the duct tape from around his feet when the offender proceeded to strike him five or six times to the head with the pick handle with extreme force. Duct tape was later found on Mr Cini's wrists and ankles. But even if the offender attacked Mr Cini for the reason suggested, I fail to see how it would make any difference to the offender's culpability given that the ferocity of the attack went way beyond what might have been necessary to "rescue" Mr Sinclair. 8. The offender's culpability for the murder is greater than that of Sinclair, who was sentenced on the basis that he knew the present offender was armed and that grievous bodily harm could well be inflicted (but was not aware of the possibility of death). While the offender initially contemplated that he would cause grievous bodily harm, he proceeded callously and unnecessarily, but intentionally, to kill Mr Cini. 9. Counsel for the offender conceded that "this [is] a very serious, or grave, example of this crime" but submitted that it was not within the worst case category. The Crown, on the other hand, submitted that the offender's culpability was so extreme as to warrant the imposition of a sentence of imprisonment for life. 10. The written submissions for the Crown provided a useful summary of the legislation concerning mandatory life sentences for certain offences (s 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) and cases dealing with this issue. It was submitted that "[t]his is a murder committed in company upon an elderly man in the early hours of the morning in his home" and that "the objective circumstances reach the level addressed by the legislation and that this offender's level of criminality has that level of extreme wickedness referred to in the common law cases". 11. I have given earnest consideration to the Crown's submission but, as bad as it is, I am not satisfied to the required standard that the murder of Mr Cini falls within that extreme category (although I am satisfied that it is very close to it). I am satisfied that the need for punishment, retribution, deterrence and community protection can be sufficiently served by the imposition of a long determinant sentence. Victim impact statements 1. Victim impact statements were made by Ms Alana Bush and Mr Brett Delamont. The sheer terror that they experienced in their home on 28 April 2014 has had an enduring psychological impact, particularly because of the debilitating brain injury suffered by Mr Delamont that has affected their lives in many ways. Hopefully this will abate with time but it is difficult to imagine them ever being able to put such an experience completely behind them. They have my sincere sympathy. 2. Victim impact statements were made by Ms Boldi and Ms Leanne Adam (daughter of Mr Cini). The events of the morning of 30 May 2014 and following have obviously been horrific for them. Their suffering and loss is impossible to quantify or for someone else to fully appreciate. I have said before and reiterate that they have my sincerest sympathy. Sentencing of co-offenders 1. In relation to the sentences imposed upon co-offenders, it is only necessary to refer to the sentencing of Kurt Sinclair. It was not contended by counsel for the offender that I should also have regard to the sentencing of Sam Franklin for his involvement in the Medway offences or of Ms Brittany Bradshaw for her offences in the aftermath of the Badgerys Creek offences (receiving stolen property and concealing a serious offence). 2. Kurt Sinclair pleaded guilty to offences at Medway and Badgerys Creek and was sentenced by me on 15 May 2017: R v Sinclair [2017] NSWSC 686. The sentences for the offences at Medway and Badgerys Creek were reduced by 35% and 15% respectively for his pleas of guilty and his undertaking to give evidence in the present offender's trial. I imposed an aggregate sentence of 38 years with a non-parole period of 28 years and 6 months. Details of his offences and the individual sentences (which after discounting were rounded) are set out in the following table. Offence Starting point Indicative Sentence 1 Murder of Keith Cini 35 years 30 years NPP 22 years 6 months 2 Break, enter and steal in circumstances of special aggravation, namely being in company and intentionally inflicting grievous bodily harm upon Luciana Boldi 16 years 13 years 6 months NPP 10 years 3 Break, enter and steal in circumstances of special aggravation, namely being in company and intentionally inflicting grievous bodily harm upon Brett Delamont 18 years 6 months 12 years NPP 9 years 4 Detain Alan Bush without consent in company with intent to obtain a financial advantage 13 years 8 years 6 months 5 Detain Kirby Delamont without consent in company with intent to obtain a financial advantage 13 years 8 years 6 months 6 Detail Jack Lisle without consent in company causing him actual bodily harm with intent to obtain a financial advantage 14 years 9 years 1. In relation to the murder of Mr Cini I was satisfied that Mr Sinclair's offence was well above the middle of the range of objective seriousness. I was not satisfied that he was aware of the possibility of death occurring but was satisfied that he was well aware that the present offender was armed, that the premises were occupied and that grievous bodily harm could well be inflicted upon one or more occupants. I found that he had a high level of culpability but it was less than that of the present offender. (R v Sinclair at [127]-[129]) 2. The other offences were all also found to be well above the mid-range, although I regarded the offence concerning Mr Delamont as the worst of them because of the level of harm caused. I was not satisfied that he intended that grievous bodily harm be inflicted upon Mr Delamont or Ms Boldi but I regarded him as having foreseen the possibility of this occurring. (R v Sinclair at [130]-[132]) 3. Mr Sinclair was just under the age of 23 at the time of these offences. He came from a good family. He became addicted to methamphetamine at the age of 20 and it was his need for money to fund this addiction that was his motivation for this offending. There was no suggestion that he was predisposed to involvement in violent conduct when not abusing drugs. 4. Mr Sinclair did not have any significant record of prior convictions. I found that he was genuinely remorseful. I accepted his claim that he had abstained from drug use in gaol and I found that he had good prospects of rehabilitation and not re-offending. 5. In the course of submissions, counsel for the offender described the sentence imposed upon Mr Sinclair as "a heavy and appropriate sentence". He submitted, in effect, that I should impose a sentence that is along the lines of that assessed in respect of Mr Sinclair but absent the mitigating and discounting factors. However, I have concluded that such a sentence would fail to reflect the greater objective seriousness of the offences. Other matters bearing upon the assessment of sentence 1. In assessing the appropriate sentence for each offence I am obliged to have regard to the statutory guideposts of the prescribed maximum penalties and standard non-parole periods (where applicable) to which I have earlier referred (in the table at [2]). 2. Of the aggravating factors listed in s 21A(2) of the Crimes (Sentencing Procedure) Act, there are no further matters that I have not already taken into account in my assessment of the objective seriousness of the offences (see above at [107]-[122]). 3. There is no suggestion that the offender is remorseful. Indeed, no submission was made that any of the mitigating factors listed in s 21A(3) are present. I cannot discern any. 4. The purposes of sentencing listed in s 3A need to be borne in mind. Principal among these are deterrence, denunciation, making the offender accountable for his actions and recognising the harm caused. Relevant to the weight to be afforded to these matters is my acceptance that the offender's moral culpability for breaking into homes in order to steal property is reduced to a modest extent because of the indirect link between the childhood-onset ADHD condition and the subsequent drug addiction that it rendered him more susceptible to. I do not find, however, that his moral culpability for the acts of violence is reduced on this account at all. 5. Protection of the community is presently a concern given the nature and seriousness of the offences. However, having regard to the likely age of the offender when he may be considered for release, it is a factor of less significance. 6. An aggregate sentence is to be imposed and shortly I will indicate the sentences that would otherwise have been imposed for the individual offences. There is additional criminality in each of the offences and so it is necessary for there to be some notional partial accumulation in the application of the principle of totality. It will be relatively modest, however, because of the length of the sentence I would impose for the murder alone. 7. It was not submitted that there are special circumstances that would justify the non-parole component of the sentence being less than three quarters of the overall term. The usual statutory proportions will allow for a more than adequate period of potential parole supervision, assuming parole be granted. 8. I am obliged to warn the offender that he may be the subject of proceedings brought against him under the Crimes (High Risk Offenders) Act 2006 (NSW) for his continued detention or supervision at the end of his sentence. I ask his solicitor to explain the ramifications of this to him, including the steps he can take towards rehabilitation which might minimise the prospect of such proceedings. 9. The offender has been in continuous custody since his arrest and so his sentence must be backdated to 21 October 2014. Indicative sentences 1. The sentences I would otherwise have imposed for each offence are as follows: Count 1 (Murder of Mr Keith Cini): Imprisonment for 42 years with a non-parole period of 31 years 6 months. Count 3 (Break, enter and steal in circumstances of special aggravation (being in company and intentionally wounding Ms Luciana Boldi)): Imprisonment for 18 years with a non-parole period of 13 years 6 months. Count 4 (Break, enter and steal in circumstances of special aggravation (being in company and intentionally inflicting grievous bodily harm upon Mr Brett Delamont)): Imprisonment for 20 years with a non-parole period of 15 years. Count 5 (Detain Ms Alana Bush with intent to obtain a financial advantage while in company): Imprisonment for 13 years. Count 6 (Detain Ms Kirby Delamont with intent to obtain a financial advantage while in company): Imprisonment for 13 years. Count 7 (Detain Mr Jack Lisle with intent to obtain a financial advantage while in company and causing actual bodily harm): Imprisonment for 14 years. Sentence 1. For each offence the offender is convicted. I impose an aggregate sentence of imprisonment for 48 years with a non-parole period of 36 years. The sentence will date from 21 October 2014. The non-parole period will expire on 20 October 2050 when the offender will become eligible for release on parole. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 November 2017