R v Evans; Evans; XE (No 2)

1. [1]

   HIS HONOUR: On 13 November 2020, John Evans, his son Keith Evans and his daughter XE were each indicted before a jury panel on a charge that on 3 July 2017 at Wyong, they murdered Jesse Thompson (“the deceased”), contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). Each accused entered a plea of not guilty. Keith Evans was charged with a further count on the same indictment that on 2 July 2017, at Wyee, he wounded Jayke Rodgers with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act, (“Wound with Intent”) to which he also pleaded not guilty. An expanded jury of fourteen was empanelled and the trial commenced.

2. [2]

   On Thursday 14 January 2021, the jury retired to consider its verdict. Three members of the jury had been discharged during the trial and consequently there was no need for the jury numbers to be reduced pursuant to s 55G of the Jury Act 1977 (NSW). On Tuesday 19 January 2021, the jury returned with verdicts of guilty against each accused for all counts on the indictment.

3. [3]

   The maximum penalty for the offence of murder is life imprisonment: s 19A of the Crimes Act. There is a standard non-parole period of 20 years, pursuant to Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSP Act”). The maximum penalty for the offence of Wound with Intent is imprisonment for a period of 25 years: s 33(1) of the Crimes Act. There is a standard non-parole period of 7 years.

4. [4]

   A sentence hearing was held on 25 March 2021 and additionally, in relation to only XE, on 24 June 2021. I now deliver sentence on the three offenders.

Background to the offences generally

1. [5]

   At the time of the offences, John Evans was aged 49 and Keith Evans was aged 24. XE was 17 years old. I have considered s 15C(2) of the Children (Criminal Proceedings) Act 1987 (NSW) and the matters identified at s 15C(3) that are to be taken into account. I have determined not to make an order authorising the publication or broadcasting of XE’s name. Consequently, it remains the case that it would be an offence for any person to publish or broadcast material that connects the name of the offender XE with these criminal proceedings.

2. [6]

   The offenders resided together in a house owned by John Evans in Jilliby Street, Wyee (“the Evans’ house”). Wyee is approximately 20km North of Wyong, on the Central Coast. John Evans was self-employed as a tree lopper. He had a tip-up truck and a wood-chipper he could attach to the truck’s towbar. The truck and wood-chipper were often parked on the nature strip at the front of his property. He also had an SUV, being a white Mitsubishi Triton (“the Triton”).

3. [7]

   Keith Evans lived in a granny flat in the back yard of the property, with his girlfriend of approximately seven years, who I shall refer to as Christine. John Evans and XE were the only two residents of the house. At the time of the offences, Keith Evans was working with his father as a tree-lopper and Christine worked in a pharmacy at Tuggerah. XE occasionally assisted her father as well. She also had casual employment in a supermarket.

4. [8]

   Keith Evans and John Evans gave evidence in the trial. XE did not give evidence. None of the offenders gave evidence at the sentence hearing.

Background to the Wound with Intent offence

1. [9]

   The prosecution case was that Keith Evans enticed Mr Rodgers to the Evans’ house and impaired his escape, so that he could seriously assault him, as an act of revenge for Mr Rodgers having a covert sexual relationship with Christine. The plan succeeded. Mr Rodgers’ injuries included four lacerations to his head, most likely caused by a blunt object. The prosecution case was that the nature and circumstances of those four injuries bespoke an intent to cause really serious bodily harm. Although the prosecution case was that Keith Evans enlisted at least one other man to assist him in trapping Mr Rodgers, it was also that only Keith Evans delivered the blows to Mr Rodgers’ head that caused the lacerations, and therefore there was no need for the prosecution case to engage a form of joint criminal liability.

2. [10]

   Witnesses who gave evidence relevant to this charge in the trial included Christine, Mr Rodgers and Keith Evans. Christine gave evidence that in February 2017, Keith Evans looked through old messaging on her social media account (Facebook messenger) and discovered that some time before, while she and Keith Evans were in a relationship, she was also having sexual encounters with Jayke Rodgers. Keith Evans became angry and threatened to “get him”. In evidence, Mr Rodgers affirmed the liaisons. He said that he knew Keith Evans and XE through mutual friends.

3. [11]

   Keith Evans staged a photograph of Christine with him off-camera applying a bolt-cutter to one of her fingers and sent the photograph to Mr Rodgers via social media to entice him to come to her rescue. Mr Rodgers gave evidence that he received the photograph, deduced it was sent by Keith Evans and replied to the effect that if he persisted in sending him messages, he would embarrass him on social media.

4. [12]

   On the afternoon of Friday 30 June 2017, Mr Rodgers sent Christine a text on Facebook Messenger: “Whatcha doing”, and then the following afternoon: “Hey”. That night, he received a reply: “I’ll message you tonight and we will sort something out”. Christine said that in fact the reply had been sent by Keith Evans using her account. Messaging between Keith Evans, pretending to be Christine, and Mr Rodgers, continued over the next day. At one point, Mr Rodgers became suspicious that it may not be Christine texting him and asked her to send him a “selfie”. Keith Evans told Christine to put on her work shirt, took a photograph of her, and sent it to Mr Rodgers.

5. [13]

   In the guise of Christine, Keith Evans texted Mr Rodgers that he and John Evans would both be away for the weekend and that Mr Rodgers should visit her at the Evans’ house, which was something he had not previously done. He agreed.

6. [14]

   Christine said that on the evening of Saturday 1 July 2017, Keith Evans had a visitor, a male friend she did not know. In the early hours of Sunday morning, Keith Evans told her, words to the effect: “He’s finally coming over, I told him you’ll meet him at the side gate”. He told her when to go outside.

7. [15]

   Shortly after 2am, Mr Rodgers was dropped off at the address provided by Keith Evans by a friend, who then waited at the bottom of the street. He texted his friend: “Could be set up ha out front still”. Mr Rodgers saw Christine come into view from the back of the house along the side behind a closed side gate. He jumped over the gate, they briefly embraced, and then Keith Evans appeared from around the back of the house. Keith Evans told Christine to go back inside.

8. [16]

   Mr Rodgers said that almost immediately after he saw Keith Evans, he experienced “flashes of white, being hit by something, an object”. He thought that it was a blunt object and that he was hit with the object multiple times to his head. He climbed back over the gate, but there were other persons waiting on the other side, with whom he then traded punches. He fell to the ground and curled up in a ball. He determined to get away, and as he tried, one of his assailants grabbed his jumper. He managed to wriggle out of his jumper and run down the driveway, and then he passed out.

9. [17]

   When he regained consciousness, Keith Evans had him in a “head lock”. XE was standing nearby, “screaming for it to stop”. A third person who he did not know was swinging something in a pillowcase or bag against his knees. He passed out again.

10. [18]

    When Mr Rodgers again regained consciousness, he was by himself. He was unable to walk, so he crawled along the road and knocked on a window of a house further along the street. The resident of that house gave him assistance and called Triple Zero for an ambulance. That message was received at 2:41am and the ambulance arrived at 3:01am. While waiting for the ambulance, XE walked into the house, the resident letting her in because she assumed XE was associated with the expected ambulance. XE said to Mr Rodgers: “Stop thinking with your dick”, handed him his mobile phone and left. Mr Rodgers was also missing his wallet and jumper. Police attempted to interview Mr Rodgers in the ambulance en route to Wyong Hospital (“the hospital”). He declined to tell them the truth as to how he came to be assaulted, claiming instead that he had been assaulted and robbed by three unknown persons while he was waiting to meet a girl.

11. [19]

    The injuries observed at the hospital and some details of his admissions and discharges were summarised and tendered in documentary form at the trial pursuant to s 191 of the Evidence Act 1995 (NSW). The most serious injuries were four lacerations to Mr Rodgers’ scalp. These were the only injuries relied upon by the prosecution as the basis of the element of wounding, in the count of Wound with Intent. Two were described as “4-5 cm full thickness through to bone”, one being on the “right parietal (side and roof of skull)” and the other on the “left parietal (side and roof of skull)”. There was a “scalp laceration on [the] crown of head 1cm full thickness of skin and fatty tissue” and a “laceration behind left ear full thickness of skin and fatty tissue”. All four lacerations required sutures. Mr Rodgers was discharged at 7:57am but readmitted at 6:08pm the same day, being Sunday 2 July 2017, for “vomiting/haematomas (vomiting of blood) secondary to head injury”. In evidence, Mr Rodgers pointed out scarring on his scalp, two and a half years later, from the injuries.

12. [20]

    Keith Evans was arrested in relation to both charges on the indictment shortly after 1pm on Tuesday 4 July 2017. He exercised his right to silence, declining to be interviewed by police. A search warrant was executed at the Evans’ house and granny flat later that afternoon. Mr Rodgers’ wallet was located in XE’s bedroom and the jumper that Mr Rodgers had wriggled out of during the assault was found in the granny flat.

13. [21]

    Keith Evans’ version of events in his evidence at the trial was that he did not know and had never heard of Mr Rodgers. He arrived home in the early hours of 2 July 2017 to find a male stranger down the side of the house, on the inside of the side gate. He asked who he was. The male stranger took off his jumper and said to him: “Do you want to go?”, Keith Evans said “yeah”, and the two men fought. Keith Evans said the two of them were the only assailants and thus he alone was responsible for all the injuries suffered by Mr Rodgers, which were caused only by his fists. As to the nature of the injuries, he said that he agreed with his counsel that he took it “too far”. He could not recall if he sustained any injuries in the fight. Christine said that Keith Evans came into the granny flat about 20 minutes after her. She did not notice any injuries on him, either then or afterwards.

14. [22]

    Keith Evans said that the first he became aware of Christine’s sexual liaison with another male was in the course of a conversation with her immediately after his fight with Mr Rodgers. He denied that he had been texting Mr Rodgers while pretending to be Christine and that he had invited him to come to the Evans’ house. He was asked if the discovery that his girlfriend had been unfaithful made him angry: “More sad, but a little bit angry, yes, but more sad”.

15. [23]

    Further along Jilliby Street from the Evans’ house was a bakery with a security camera on an outside wall that captured images of the street, including the Evans’ house in the distance (“the bakery camera”). Tendered in the trial were images and video captured by it at various times over 2 and 3 July 2017. The camera was said to be accurate to within 3 minutes. Images captured at 2:04am on 2 July 2017 showed a vehicle travelling to the Evans’ house and parking in the driveway. The vehicle of Mr Rodgers’ friend who had dropped him off there paused at 2:14am, his friend driving away a minute later. The vehicle that had been parked in the driveway was captured leaving from the direction it had come at 2:31am. It was the prosecution case that this vehicle was associated with the person or persons who assisted Keith Evans to assault Mr Rodgers.

16. [24]

    Conformably with the jury’s verdict, I find that Keith Evans inflicted the four head wounds on Mr Rodgers. I accept the evidence of Christine and Mr Rodgers and entirely reject the evidence of Keith Evans as to the circumstances of the assault. In particular, I find beyond reasonable doubt that Keith Evans engaged others to assist him in detaining Mr Rodgers and that he used a weapon, being a blunt object, to inflict the head injuries.

Background to the murder

1. [25]

   Mr Rodgers was asked in evidence why it was that, when police questioned him in the ambulance, he did not tell them who was responsible for the assault. He explained it was because: “I half deserved it and half get my own revenge”. He texted his girlfriend, telling her the same false story he had told police. From about 7:40am on the morning of the assault, 2 July 2017, Mr Rodgers texted and spoke to friends, informing them that Keith Evans had assaulted him with a brick in a pillowcase, causing head wounds that required 20 stitches. Two of his male friends, Shane Weir and Levi Dean, were outraged. Mr Weir was known as “Dickie” or “big fella”.

2. [26]

   Mr Weir texted Mr Rodgers on the Sunday afternoon expressing an intention to join him in retaliation: “We sort that shit son they dog cunts”. Mr Rodgers sent Keith Evans threatening texts on the Sunday night at 9:35pm (“Dead man walking” and “Be prepared for revenge bra”). Keith Evans texted his father to keep the back door locked, because someone had sent him a message “saying they coming for revenge”. John Evans responded: “See what I told u /nHalf done job”. John Evans then advised Keith Evans to respond in terms that he did not know what the threat was about, because “could b cops with his computer”. He added: “o all turn bad u left a big trail”. Keith Evans replied that there was not a trail because “all erased on both phones”. John Evans replied: “Not messenger”.

3. [27]

   Keith Evans took his father’s advice and at 9:48pm, sent a text to Mr Rodgers: “Whos this don’t know wat ur on about”. Mr Rodgers immediately responded: “Can’t hide now big boy. Wait till I come outnumbered your dead bra move now”.

4. [28]

   On Monday 3 July at 8:51am, Mr Dean also texted Mr Rodgers his support for revenge: “Wel get the cunts bro”. At 10:52am, Mr Rodgers texted Mr Dean asking for a lift home from the hospital. Mr Dean agreed. Mr Weir had rented a Toyota Kluger SUV (“the Kluger”) which Mr Dean had borrowed. Mr Dean collected Mr Weir from his home at Dora Creek, which is North of Wyee, and they then drove South towards the hospital.

5. [29]

   Mr Dean gave evidence that, on the way, they decided to stop in at the Evans’ house and confront Keith Evans. The bakery camera captured the Kluger pulling up outside the Evans’ house at 11:34am. Messrs Weir and Dean got out of the car and saw Keith Evans at the side of the house. One of them called out to him something like: “What happened to Rodgers was a shit go. Why didn’t you just fight him one‑on‑one?” Keith Evans withdrew into the house. They went to the front door, which was a locked sliding glass door, and knocked. XE, who knew Mr Weir, came to the door. A brief exchange occurred between her and Mr Weir through the closed door. Mr Dean’s evidence was that he turned to leave. Mr Weir followed him and as he crossed the front yard, Mr Weir picked up a spirit level from the ground and threw it towards where XE was, shattering the glass door and causing cuts to XE’s legs. The bakery camera captured the Kluger leaving the Evans’ house at 11:38am.

6. [30]

   XE phoned John Evans, who was elsewhere in his tip-up truck. He gave evidence about the phone call, saying that: “She was hysterical. She was frantic. Like she was yelling. She was screaming”. He said she told him that “Dickie and the boys” were there and that she thought she was going to die. He said that when he arrived home and saw her: “I noticed there was blood all over her. I saw little dots on her clothes, over her. She was crying. She was shaking”. John Evans’ truck was captured by the bakery camera arriving home at 11:42am and at 11:44am, the Triton driving away.

7. [31]

   Keith Evans gave evidence that at the time he did not know Mr Weir or Mr Dean. He said that as they arrived, he was at the side gate. They said, “You jumped Rodgers, that’s a shit go”. He replied, “No, it was one on one, fuck him, it was in my yard”. They said, “If you think you’re a big man, come out the front”. He then walked inside and saw XE at the front door. She said: “Oh fuck Dickie’s here”. Shortly after, one of them threw something at the door, the glass shattered, and XE was bleeding.

8. [32]

   XE did not give evidence in the trial. Recordings of two phone calls between her and her boyfriend at the time, at 12:51pm and 1:50pm that afternoon, were tendered. In the calls, she related some of the events of the day. In the 12:51pm call, she told her boyfriend that “Dick” came to the house that morning and “threw a … beam” at her, and “Glass everywhere. I’m bleeding, all foot open”. She said he was accompanied by “Like Levi, everyone … Rodgers ...”. She referred to two others as well, there being five in total. I find that Mr Weir and Mr Dean were the two men involved in that incident, and no one else.

9. [33]

   I note that there was no evidence of XE suffering serious physical injury in the Jilliby Street incident. It appears that she received superficial cuts to her legs from pieces of shattered glass, and that the cuts bled profusely. It would seem from the evidence that she was very distressed by the incident, which no doubt caused her a degree of shock, which alarmed and angered John Evans and Keith Evans.

10. [34]

    The prosecution case was that the offenders were intent on finding Mr Weir and Mr Rodgers, who they mistakenly believed had been with Mr Weir at the Evans’ house. The Triton was driven at speed to an address in Woodward Avenue Wyong, where to XE’s knowledge a close friend of Mr Rodgers resided, being Billy Thompson.

11. [35]

    At some point over the previous 24 hours, Mr Rodgers had told Billy Thompson during a phone call that he had been assaulted by Keith Evans and others. That morning, Billy Thompson was home with his partner and one of his children, aged six. They received a visit from his brother Jesse Thompson and Luke and Daniel Hill, who are brothers and cousins to Billy and Jesse Thompson. They arrived in one vehicle and after 10 minutes, they left. Billy Thompson stayed in the house as they walked outside to their vehicle.

12. [36]

    Luke Hill gave evidence that he and XE had been friends for about 12 months, seeing each other most days. Through her he had met her brother Keith and her father. He said that when they got to the street, a white four-wheel drive, driven by John Evans, pulled up beside their car. Keith Evans was in the front passenger seat and XE was in the back seat. XE asked; “Where’s big fella and Rodgers?” He replied, “I don’t know, why don’t you ring him?” XE said: “Don’t lie I know he just come here because he just left my house”. Luke Hill repeated: “I don’t know, why don’t you ring him”. John Evans then pointed a single barrel shotgun at him and said: “Listen here cunt I’m not fucking around, where is he?” Luke Hill replied: “This has got nothing to fucking do with me”. The four-wheel drive then “screeched off”. As it did, XE leaned out the window and said: “I’ll kill your fucking missus, Hilly cunt”. Luke Hill’s evidence was corroborated by his brother Daniel Hill, although Daniel Hill did not know any of the three offenders and thus did not identify the three occupants of the four-wheel drive.

13. [37]

    Jesse Thompson, Luke Hill and Daniel Hill quickly went back inside Billy Thompson’s residence. He described them as “pretty panicky”. They told Billy Thompson what had just happened on the street.

14. [38]

    Keith Evans and John Evans denied that they went to Woodward Avenue at all; their evidence was that the incident at Woodward Avenue did not happen and when they left Jilliby Street, they were headed to a building supplier in Wyong to get materials to secure the smashed front door to their house.

15. [39]

    In the 1:50pm phone call, XE told her boyfriend that after the Jilliby Street incident, her father went to “Billy’s”. She said that “Hilly” was at “Bill’s” and:

16. [40]

    I accept the evidence of Luke Hill and Daniel Hill as to what occurred at Woodward Avenue and I accept the evidence of Luke Hill that the three persons involved were the three offenders.

17. [41]

    CCTV at the hospital captured images of Messrs Dean and Weir in the Kluger collecting Mr Rodgers at 12:02pm. Billy Thompson rang Mr Dean at 12:04pm and told him what had just occurred at Woodward Avenue. The Kluger drove directly to Woodward Avenue. The occupants got out and went inside. There was a brief discussion following which some, being Messrs Rodgers, Weir, Dean, Luke Hill, Billy Thompson and Jesse Thompson, decided to confront the offenders. Mr Weir told them to “Grab some weapons” and they left. Billy Thompson took two vegetable knifes and a cut-throat razor and recalled someone possibly having a baseball bat. Mr Rodgers thought someone had half of a garden shear and someone else took a steel pole from a trampoline. Mr Dean said he had a “pole”. Mr Rodgers denied that he took a weapon, but one of the others recalled seeing him take a “giant shifter looking thing”.

18. [42]

    Mr Rodgers said that as he got into the Kluger, he rang XE to arrange a meeting place. Phone records indicate a call at 12:06pm from him to XE. Mr Rodgers asked: “Where do you want to meet up?” XE replied; “Baker Park” and he agreed. There was a call from XE to Mr Rodgers at 12:09pm, in which she gave further directions on where to meet up.

19. [43]

    Mr Rodgers said in evidence that he was proposing to fight Keith Evans, to extract revenge for the attack on him two days earlier. He said to the others: “I’ll fight him first and if he gets it over me we’ll just jump him”, meaning that: “All of us would hit him”. Mr Rodgers said his intention was to “Bash him the same way he did me, use weapons on him”.

20. [44]

    All five surviving witnesses of the Kluger gave evidence in the trial, although Mr Weir claimed a complete failure of his memory in relation to the relevant events, due to the ingestion of prohibited drugs. Thus, there were, effectively, four occupants who gave evidence (“the Kluger witnesses”). They all denied there was a firearm in their vehicle.

21. [45]

    Keith Evans and John Evans denied there was a firearm in their vehicle. John Evans said his intention in meeting up was to tell them to “just leave us alone” and that he said as much on the phone calls between the two vehicles. He said he told Mr Weir to “come alone then”, thinking they could “talk something through”. He said that Baker Park was suggested as a venue by those in the Kluger.

22. [46]

    The vehicles came to a stop on the grassy un-guttered side of Rose Street, which lay East-West, near its eastern end, at which on a right-angled corner it continued South as Ithome Street. The location of the vehicles was on the opposite side of the street to Baker Park and, across an open grassy ditch, adjacent to an asphalt car park, which had access points onto both Rose and Ithome Streets. There were conflicting versions from the Kluger witnesses as to whether the vehicles came to a halt facing each other or facing in the same direction, with the Kluger behind the Triton. Keith and John Evans said in evidence that the Kluger pulled up behind the Triton.

23. [47]

    Mr Rodgers said that he jumped out and approached the Triton. He saw Keith Evans “hanging out the window” of the front passenger side holding a firearm, which “looked like a single barrel shotgun”, pointed either to him or Mr Dean, who was standing in front of him. He heard a sound “very similar” to a shotgun being fired. He got back into the Kluger, in the front passenger seat.

24. [48]

    Mr Dean said that he and Mr Weir got out and ran towards the Triton. He could see that Mr Weir’s hands were not holding anything. The Triton started reversing towards them. They both ran back to the Kluger. He saw the person in the front passenger seat of the Triton lean out, holding a full-length shotgun, and then firing a shot in their direction. Mr Dean said that Mr Weir got back in the driver’s seat of the car. Mr Dean ran off across the carpark, followed by the Triton. He heard a further shot, or two shots.

25. [49]

    Billy Thompson said he got out of the Kluger and moved towards the Triton. He saw the front passenger point a single-barrel shotgun at them. He turned, headed back towards the Kluger and heard a gunshot. He took cover behind a telegraph pole. The Triton reversed away, as did the Kluger. He ran towards the Kluger, diagonally across the car park. Levi Dean was behind him as he did so. They exited the car park on the Ithome Street side, where Mr Weir stopped the Kluger to pick them up.

26. [50]

    Luke Hill said that he got out of the Kluger, heard a gunshot and got back in. He did not see who had the firearm.

27. [51]

    Keith Evans said that the Kluger came up behind their car, stopped, and the occupants started to get out, holding things. His father yelled out: “Leave my family alone, leave my kids alone … Youse smashed the door”. He said that his father initially crept the Triton forward, and then reversed at the others. He saw one of them drop something. His father reversed alongside it, opened the door, picked it up and put it “in the middle of the console”. They then drove across the carpark and into Ithome Street, heading South, away from the intersection with Rose Street.

28. [52]

    John Evans said that when the Kluger came up behind him, he edged the Triton forward and the Kluger did likewise. Through his rear vision mirror, he saw the driver get out, holding a firearm. The other occupants also got out. The one who had been in the front passenger seat was holding “a little bar”. He reversed the Triton, intending to hit them, and they scattered. The Kluger drove off. He noticed the firearm was on the ground. He stopped the Triton alongside it, leaned out, picked it up and “chucked it on the console”. He did not know what sort of firearm it was. He did a U-turn and proceeded to the eastern end of Rose Street and then around the corner South into Ithome Street.

29. [53]

    Keith and John Evans denied that there was a firearm in their vehicle when they left the Evans’ home and when they arrived at Baker Park and denied that anyone in the Triton had fired a firearm at or near Baker Park.

30. [54]

    I am satisfied on the balance of probabilities that the occupants of the Kluger who alighted at Rose Street intended to assault Keith Evans. I find beyond reasonable doubt that Keith Evans used a single barrel shotgun to discharge at least one cartridge while holding the firearm outside the cabin of the Triton, in the direction of one or more of the occupants of the Kluger shortly after they alighted from that vehicle.

31. [55]

    As the Kluger proceeded down Ithome Street, Mr Rodgers was in the front passenger seat. Luke Hill was seated immediately behind him, that is, immediately along the nearside window. To Luke Hill’s right was Jesse Thompson, then Billy Thompson and then Mr Dean, who was behind Mr Weir and immediately alongside the offside window.

32. [56]

    The Kluger witnesses said that they proceeded at speed, closely pursued by the Triton (“the chase”). At the end of Ithome Street was a T-intersection with Warner Avenue. The Kluger turned right and, passing Leppington and Byron Streets to their left, turned South at the end of Warner Avenue into Howarth Street, which runs alongside the railway line. At the end of Howarth Street, they turned left (East) into Panonia Road, which runs alongside the Wyong River. They turned left into Leppington Street and proceeded North back up to Warner Avenue where they turned left and left again (South) into Byron Street. With the exception of Ithome Street, the route was through residential streets.

33. [57]

    The Kluger witnesses said that Mr Weir drove extremely fast throughout this period, but was unable to outpace the Triton, which remained close behind.

34. [58]

    Keith Evans said that when the Triton crossed the car park and turned onto Ithome street, it proceeded South towards Warner Avenue. About halfway along, he noticed that the Kluger was following them. It came alongside and passed them. As it did, “they were yelling and … a couple of objects” were thrown from the Kluger at the Triton. The Kluger drove in front, and the Triton followed.

35. [59]

    John Evans said that he turned across the grassy ditch and onto Ithome Street. He saw the Kluger parked on Ithome Street, facing South, with its doors open and the occupants on the road. He drove around the inside (to the East) of it. He said that as he did so, “they were throwing stuff. They were yelling out, ‘We’re going to kill you. You’re dead.’ I said, ‘Leave us alone’”. As he continued South, the occupants of the Kluger got back into the car and gave chase and overtook him, yelling out as they did so.

36. [60]

    John Evans said that as they drove down Warner Avenue, the Kluger driver:

37. [61]

    There was independent evidence of the chase, in the form of evidence from a witness who was at a first aid post on Warner Avenue; CCTV of the vehicles turning South from Warner Avenue into Howarth Street; a driver of a car who was waiting at that intersection in Howarth Street facing North; a resident on the corner of Panonia Road and Byron Street; a resident at the corner of Leppington Street who watched the vehicles turn from Panonia Road North into Leppington Street; and images captured from a security camera further along Leppington Street. All of the evidence was to the effect that both vehicles were travelling extremely fast, with the Kluger in front and the Triton hard behind.

38. [62]

    The witness at the first aid post described the driver of the Kluger as follows: “He appeared to be in a panicking looking way … as if he wasn't comfortable with what he was doing”.

39. [63]

    The driver at the intersection of Howarth Street and Warner Avenue said:

40. [64]

    She described a person in the back seat of the second car:

41. [65]

    She was described on the transcript as demonstrating a rocking motion with her elbows beside her body and her hands in front of her chest.

42. [66]

    The witness on the corner of Byron Street and Panonia Road saw the vehicles coming from Howarth Street travelling East on Panonia Road. Both were travelling fast and on the wrong side of the road and turned left (North) into Leppington Street. The Triton had to brake hard, leaving skid marks, to avoid a head-on collision with a vehicle coming towards it.

43. [67]

    The witness near the corner of Leppington Street and Panonia Road said the driver of the first car “looked very frightened”.

44. [68]

    I reject the evidence of Keith Evans and John Evans that the Kluger was behind them at some point when they drove along Ithome Street. I find that once Mr Weir, driving the Kluger, picked up Billy Thompson and Levi Dean in Ithome Street, he drove at speed in an attempt to escape the occupants of the Triton who throughout the chase remained close behind him, for fear that one or more of the Kluger occupants would be shot by Keith Evans.

45. [69]

    Having turned into Byron Street, the Kluger proceeded at speed to its end in a T-intersection with Panonia Road (“the Byron Street intersection”). Mr Rodgers said:

46. [70]

    Mr Rodgers said there was no more than a metre between the two vehicles and the front of the Triton was no more than 30cm in front of the Kluger. He continued:

47. [71]

    Mr Rogers turned around and saw that Jesse Thompson had been shot in the neck. The Triton then turned right (West) into Panonia Road and drove off.

48. [72]

    Mr Dean said:

49. [73]

    Mr Dean said that Keith Evans “was smiling as he pulled the trigger and a sort of scrunched up face”. He said he ducked. After the shot he turned and saw that Billy Thompson was okay, but that Jesse Thompson had been shot. It was an agreed fact that two shotgun pellets were removed from Mr Dean’s right and left upper arms.

50. [74]

    Billy Thompson said that he saw the gun, which had a single barrel, being pointed at the driver for “a brief second” and then at Mr Dean, being “one motion all within less than two seconds … I just ducked so fast”. He then saw that his brother had been shot and was immediately preoccupied with attempting to assist him.

51. [75]

    The witness on the Byron Street intersection said:

52. [76]

    The witness said he thought the bang sounded like a gunshot. Later that afternoon, he noticed a piece of pipe in the vicinity of the intersection, that he moved off the road. Police later retrieved it. Billy Thompson recognised it as the pole that he saw thrown by Mr Dean at the Triton. He described it as being 6-12 inches long.

53. [77]

    Keith Evans said in evidence that while turning the corner from Warner Avenue into Byron Street:

54. [78]

    Keith Evans indicated how he held the gun by holding both of his hands just above waist level. He continued:

55. [79]

    Keith Evans said they drove home, made some repairs to the front door and that night on the news he learned for the first time that someone had been shot.

56. [80]

    John Evans said that, as they drove down Byron Street:

57. [81]

    John Evans said that after the gun went off, as he was continuing to brake, the person who was in the front passenger seat of the Kluger sat on the window sill, looked over the Kluger roof straight at him, “yelling abuse at me and threw a pole” which struck the front of his car. He continued to turn right into Panonia Road and drove home. He said he “destroyed” the gun that night by “smashing” the butt and then he “chucked it over the fence in a metal recycling place”. He did not realise that someone had been shot until the next morning.

58. [82]

    Following the arrest of John Evans the following day, the Triton was forensically examined. It was observed that there was damage to the interior front nearside mirror assembly and adjacent area of the dashboard. Approximately 10 impact damaged fired shotgun pellets and metal fragments were recovered from the area of damage.

59. [83]

    Evidence was given by Matthew Bolton, a forensic ballistics expert attached to the Forensic Evidence and Technical Services Command of the New South Wales Police Force. He examined photographs taken of the damage to the Triton and pellets and pellet fragments that were recovered from it that were likely associated with the observed damage to the dashboard. He concluded that they were within the same size range as those retrieved from the deceased’s body. He carried out test discharges of a shotgun in a similar (but not identical) vehicle to test the trajectory of the shot and the likely muzzle range. He concluded that the damage was consistent with it being caused by a shotgun blast at close range and the trajectory being upwards.

60. [84]

    When asked in evidence about this damage, John Evans said he had never noticed it. Senior Counsel for John Evans submitted that the damage must have resulted from what in their case was the accidental single discharge of the shotgun at the Byron Street intersection which, John Evans accepted, caused the death of Jesse Thompson. A forensic firearms expert, Francis Lawton, was called by John Evans’ defence in support of this theory. His evidence was confined to the issue of whether the fatal shot could have also caused the shotgun damage to the Triton. Mr Lawton’s opinion was based on documentary material and a less than comprehensive account of the evidence as to what occurred at the Byron Street intersection. He stated in evidence that:

61. [85]

    Mr Rodgers said that, as the Triton drove away from the Byron Street Intersection after the shooting, he saw XE “out the back doing the finger, cheering”. He demonstrated with his left arm held up at 90 degrees and the middle finger upwards, moving his arm backwards and forwards. He clarified that there was no sound; he meant a cheering-type gesture. On 8 August 2017, Mr Rodgers cooperated with police in the filming of a video of him and police at the Byron Street intersection. He was videoed demonstrating the gesture he saw XE make out of the back seat of the Triton as it drove away. That gesture was essentially the same as he demonstrated in his evidence, except that instead of a raised middle finger he had a clenched fist.

62. [86]

    Mr Dean said that at that time: “I noticed XE in the back seat, she had her arm out the window as they drove off”.

63. [87]

    The shooting occurred at approximately 12:30pm on 3 July 2017. In the 12:51pm phone call, having explained to her boyfriend what had occurred at the Evans’ house that morning, XE said:

64. [88]

    Mr Weir drove the Kluger to the first aid post on Warner Avenue where Jesse Thompson received first aid. The ambulance service and police were contacted. Jesse Thompson was pronounced dead at 12:53pm. He was aged 19.

65. [89]

    Police commenced interviews of the surviving Kluger occupants and statements were taken to the effect that Jesse Thompson was shot by some men they did not know who had engaged them in a road rage incident. When they were informed that Jesse Thompson had died, and his mother encouraged them to tell police the truth, the Kluger witnesses complied.

66. [90]

    The three offenders were arrested on 4 July 2017. As noted, Keith Evans declined to be interviewed on his arrest, as did XE. John Evans agreed to be interviewed, and made no admissions. He declined to say whether he was driving his Triton at the time of the killing. He was asked if he was aware of “the incident with Mr Thompson yesterday” and replied that he was not. He was shown images of Howarth Street captured by CCTV in which the Triton could be seen, at a time when it would have been travelling to Baker Park, but denied he could recognise it as his vehicle.

67. [91]

    An autopsy was conducted on 5 July 2017 by forensic pathologist Dr Allan Cala. The observed injuries as follows:

68. [92]

    Mr Bolton attended the autopsy. He examined the CT scans and deduced that there were about 110 shotgun pellets in the deceased’s body. He concluded that the wounds were caused by a 12-gauge shotgun cartridge.

The sequence of events

1. [93]

   The tragic death of Jesse Thompson was the culmination of the spiralling out of control of events that began with a conflict between two individuals and as it drew in others, developed into animosity between two groups of people aged in their late teens and early twenties, with the exceptions of Shane Weir, who was aged about 30 and John Evans, who was 49 years old. One of those groups, the Evans, was familial and the other was social and familial in nature. There were a series of escalations, most notably by the offenders in the Woodward Avenue incident. The conflict was tribal in its character with both sides shunning involvement of the authorities. All of those involved in the events of 2 and 3 July 2017 acted with immaturity and breathtaking stupidity.

The bases of criminal responsibility

1. [94]

   In relation to the murder count, the prosecution case was that Keith Evans was a direct perpetrator of the deliberate act which he performed with the intention of causing grievous bodily harm or death. Consistently with the jury’s verdict, I find beyond reasonable doubt that at the Byron Street intersection, Keith Evans deliberately discharged the shotgun at the occupants of the back seat of the Kluger. As to which of the alternative intents he had at that time, I take into account his discharging of the shotgun towards the Kluger occupants at Baker Park and, at the Byron Street intersection, his aiming of the shotgun, which was loaded with a 12-gauge cartridge, at virtually point blank range, firstly at Mr Weir and then to the four occupants of the back seat at head and chest level, with the inevitable consequence that one or more of them would be likely to be killed. I conclude that the only reasonable inference as to his intention at the time he discharged the shotgun at the Byron Street intersection was to kill one or more of the four occupants of the back seat of the Kluger.

2. [95]

   The prosecution alleged alternative bases of criminal liability in the individual cases against John Evans and XE. The first was joint criminal enterprise, namely, that each was a party to a joint criminal enterprise with Keith Evans, the agreement being that Keith Evans would deliberately do the act that caused death with the intent of causing grievous bodily harm or death.

3. [96]

   The alternative basis of their criminal liability was extended joint criminal enterprise. Guilt would be established by the jury being satisfied beyond reasonable doubt of two elements being firstly, that the agreement with Keith Evans was that he would intimidate the Kluger occupants with the loaded firearm, meaning that by pointing the shotgun at them they would reasonably apprehend injury, violence or damage to their person or property. The second element was that, before the shot was fired, the relevant offender contemplated the possibility that Keith Evans would discharge the firearm during the intimidation with an intent to cause, at the very least, grievous bodily harm to a person or persons. In spite of that possibility, the offender chose to go ahead with the agreement to intimidate.

4. [97]

   Accordingly, it is necessary to determine the basis of criminal responsibility of John Evans and XE, consistently with the jury’s verdicts.

5. [98]

   I am satisfied beyond reasonable doubt that John Evans deliberately pulled the Triton up immediately alongside the Kluger at the Byron Street intersection. I reject the account of Keith and John Evans that they stopped because their intended route to the right along Panonia Road was impeded by the presence of a red car that had stopped in the intersection. As to John Evans’ intention in stopping, I take into account the evidence of Luke Hill and Daniel Hill as to what John Evans did and said at Woodward Avenue, his awareness of Keith Evans having discharged the shotgun at Baker Park towards the occupants of the Kluger, the nature of his driving from there to the Byron Street intersection, his immediate departure after the shot was fired and particularly his failure to say or do anything by way of intervention as Keith Evans aimed the shotgun at virtually point blank range, at head and chest level, first at Mr Weir and then to the packed occupants of the back seat. I conclude that the only reasonable inference as to his expectation and intention was that Keith Evans would again discharge the shotgun, this time with the inevitable consequence that one or more of the occupants would be killed.

6. [99]

   Accordingly, I am satisfied beyond reasonable doubt that the basis of John Evans’ criminal liability for the offence of murder is that he was a party to a joint criminal enterprise to kill one or more of the occupants of the Kluger.

7. [100]

   In relation to XE, I am satisfied that she drew on her knowledge of Mr Weir, Mr Rodgers and Luke Hill to advise and assist her father and brother to locate Mr Weir and Mr Rodgers, by identifying Billy Thompson’s residence at Woodward Avenue as a likely place that they would have gone to, after leaving the Evans’ house.

8. [101]

   XE was in the back seat of the Triton as her father pointed the shotgun at Luke and Daniel Hill and Jesse Thompson and implicitly threatened them. It is apparent from her 1:50pm phone call with her boyfriend that she approved of their reaction of shock and fear. The words that XE yelled as the Triton screeched away were indicative of a desire to cause physical harm to persons associated with Mr Rodgers and those who, the offenders believed, had visited the Evans’ house 20 minutes earlier.

9. [102]

   Mr Rodgers’ decision to contact XE to arrange their rendezvous with the offenders to fight was one of convenience. They were two individuals in their respective vehicles who had the capacity to make contact. Similarly, the significance of her phoning back Mr Rodgers to clarify the location should not be over-stated. Equally though, there is no suggestion in the evidence that XE was uncomfortable with being the communication point between the occupants of the two vehicles.

10. [103]

    At Baker Park, XE was in the back seat of the Triton and thus would have been aware of Keith Evans discharging the shotgun out of the front passenger window towards the occupants of the Kluger. The discharge of the shotgun at some point that morning inside the Triton, causing the damage to the dashboard, is also something that she would have heard, if not seen. Accordingly, she was aware while the Triton was at Baker Park that the shotgun had been loaded and was discharged towards the occupants of the Kluger.

11. [104]

    There is no evidence that, at the Byron Street intersection, XE did or said anything to discourage Keith Evans from discharging the shotgun into the Kluger.

12. [105]

    I am satisfied to the requisite standard that as the Triton departed the Byron Street intersection, XE made the gesture that Mr Rodgers demonstrated on video on 8 August 2017, that is, that she held her arm out of the rear passenger window in an upwards direction and shook her fist. I infer that, in an immediate sense, it was a gesture of defiance or victory that she intended the occupants of the Kluger to see. In addition, I am satisfied beyond reasonable doubt that the gesture implicitly conveyed her approval of the discharge of the firearm into the Kluger a matter of a few seconds before; so close in time that it is to be understood not only as an endorsement of what had just occurred but also as an affirmation of it as what she had hoped would occur.

13. [106]

    The 12:51pm phone conversation between XE and her boyfriend was approximately 20 minutes after the shooting and coincided with the time that Jesse Thompson was declared deceased. I infer from the excerpts of that conversation extracted above at [87], that she assumed that one or more of the occupants of the Kluger had been killed and again, that she approved of that outcome.

14. [107]

    Having regard to the evidence of those events, I am satisfied beyond reasonable doubt that XE was a participant in the alleged joint criminal enterprise and that, at least by the time of the shooting at the Byron Street intersection, the objective had become for Keith Evans to kill one or more of the occupants of the Kluger and she remained a participant on that basis.

Victim Impact Statements

1. [108]

   Victim impact statements were tendered on behalf of Jesse Thompson’s mother, his partner and his partner’s parents. Jesse Thompson was in a loving relationship with his partner, who was aged 20 at the time of his death. Jesse and his partner, although aged 19 and 20, already were a family that had produced two children, then aged 3 and 1. They have provided drawings and messages of how much they miss their father. The sense of loss and suffering that Jesse’s family have endured and will forever endure, is devastating beyond words. I offer my and the Court’s sincere condolences.

2. [109]

   The prosecution made an application pursuant to s 28(4) of the CSP Act that the statements be considered and taken into account by the court in connection with the determination of the punishment for the offence on the basis that the harmful impact of the primary victim’s death on the members of the primary victim’s immediate family is an aspect of harm done to the community. Pursuant to the terms of s 28(4), I consider it is appropriate to do so in respect of each of the offenders in relation to their sentences for the count of murder.

Keith Evans: The objective seriousness of the offences

1. [110]

   The factors to be taken into account include the following matters of aggravation that are identified in s 21A(2) of the CSP Act. I take into account that the offence was committed with a weapon (s 21A(2)(c)), it was committed in company (s 21A(2)(e)) and it was planned at least 12 hours before it was committed, when Keith Evans texted Mr Rodgers the afternoon before that “I’ll message you tonight and we will sort something out” (s 21A(2)(n)). The injuries were inflicted on a vulnerable part of the body.

2. [111]

   I find that there was no element of provocation. Keith Evans had been aware of his girlfriend’s past infidelity for four months. In any event, infidelity and Mr Rodgers’ renewed interest in the form of his texts intended for Christine that he sent on 30 June and 1 July were not, in my view, provocation that in any sense mitigates the objective seriousness of the offence.

3. [112]

   Counsel for the offender submitted that the objective seriousness is mid-range.

4. [113]

   I note that the offence of Wound with Intent covers a wide spectrum of seriousness in terms of the type and consequences of injury, to a point of serious permanent incapacitating injury. In that context, I conclude that the objective seriousness of this offence was slightly above mid-range.

5. [114]

   I note that there are aspects of the evidence that are relevant to all three offenders in determining the objective seriousness of the offence. I take into account, pursuant to s 21A(2) of the CSP Act, the use of a weapon (s 21A(2)(c)) and that the offence was committed in company (s 21A(2)(e)).

6. [115]

   The offence involved a grave risk of death or serious injury to other persons, particularly the others in the back seat of the Kluger at the time the shotgun was discharged, as well as others in nearby houses and on the footpaths, given the time and location, being about 12:30pm on a weekday in the residential area of a large town (s 21A(2)(ib)).

7. [116]

   The degree of planning involved in the offence was minimal. When the offenders left Jilliby Street in the Triton about 45 minutes before the shooting, they had their weapon with them but did not know where the intended targets were: s 21A(3)(b)).

8. [117]

   Motive is a relevant consideration in fixing the objective seriousness of an offence: R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [86]. I find that the primary motive for the offence of murder was a combination of outrage that some of Mr Rodgers’ group had come onto the property of the Evans’ house and smashed the front door, and in so doing had injured and caused distress to XE. In that context, the offence was intended as a crude form of retribution and deterrence of any further acts of violence against members of the Evans family or damage of their property. I note that this factor has both aggravating and mitigatory aspects to it, although on balance it is overwhelmingly aggravating.

9. [118]

   At the time that the victim and his cousins were threatened at Woodward Avenue by John Evans pointing the shotgun at them, they had done nothing to offend any of the three offenders.

10. [119]

    At the time that Keith Evans discharged the fatal shot, the occupants of the Kluger were vulnerable. Mr Dean had thrown a pipe at the Triton, but there was no further threat. Keith Evans was able to aim and discharge the shotgun with impunity.

11. [120]

    Keith Evans’ intention to kill at the time he discharged the shotgun is a significant consideration: Apps v R [2006] NSWCCA 290 at [49]. Counsel for Keith Evans submitted that the objective seriousness was “below mid-range” by virtue of the following factors.

12. [121]

    Firstly, there was provocation in the form of “an attack on Mr Evans’ home”. In my view, the smashing of the front door of the Evans’ house was so disproportionate to the shooting as to pale into insignificance.

13. [122]

    Secondly, there was provocation by way of the Baker Park incident. I accept that at the point that the Kluger occupants left the vehicle at Baker Park, most if not all of them being armed with some form of implement, they posed a threat of physical violence to Keith Evans in particular. However, that danger had passed. The Kluger had been driven at dangerous speeds by Mr Weir in a desperate effort to escape from the offenders, in particular from Keith Evans, who had the shotgun.

14. [123]

    Thirdly, the failure of both drivers to break off the chase by driving to the Wyong Police Station. I note that is indeed regrettable, but I do not understand how that is relevant to the objective seriousness of the offence in relation to Keith Evans. In his evidence, Keith Evans did not suggest that he wanted to stop the chase or that he advised his father to drive the Triton to the police station.

15. [124]

    Fourthly, the deceased was not involved in the smashing of the front door and was not known to Keith Evans. In my view, as I have noted, this was an exacerbatory feature of the offence.

16. [125]

    Fifthly, that Keith Evans accepted in his evidence that the gun discharged while he was holding it. I do not accept that the claim that the gun discharged accidentally mitigates the objective seriousness that flows from a verdict that entails a finding that it was deliberately discharged.

17. [126]

    Sixthly, that the objective seriousness was reduced by Keith Evans not also being the driver of the Triton. I do not understand that submission.

18. [127]

    In my view, the objective seriousness is at a mid-point between mid-range and the maximum level of objective seriousness.

Keith Evans: Subjective considerations

1. [128]

   A report by a psychiatrist, Dr Christopher Bench, dated 22 March 2021, was tendered on behalf of Keith Evans. Dr Bench noted that Keith Evans had no mental health issues prior to the index offences. Four character references were tendered; two by cousins, one by an uncle and one by an aunt. Each expressed shock at the convictions. One of the references, by his aunt, gave some detail of his relationship with his mother and stepmother.

2. [129]

   Counsel for Keith Evans submitted that a pre-trial offer by his client to plead guilty to a statutory alternative of the Wound with Intent count should be taken into account in mitigation of his sentence for that offence. The offer was to plead guilty to the offence of Recklessly Inflict Grievous Bodily Harm, contrary to s 35(2) of the Crimes Act, on the basis of excessive self-defence. The prosecution opposed the submission, because that was not the offence that he was convicted of, although she conceded that an allowance may be made for his willingness to facilitate the administration of justice by agreeing to facts relating to the element of wounding.

3. [130]

   I am of the opinion that the utilitarian benefit of the offer was minimal. The concession by Keith Evans that he had wounded Mr Rodgers did not result in any significant saving of court time. Nevertheless, I will take the minimal benefit into account.

4. [131]

   Dr Bench noted that Keith Evans identifies as being an Indigenous man through his mother being from the Wiradjuri mob, although he has had minimal acculturation to his aboriginality.

5. [132]

   Dr Bench took a brief history from Keith Evans to the following effect. He has three half siblings, one of whom is XE. He was born on the central coast and grew up in Wyee and Wyong. His parents separated when he was a baby and he has had no contact with his mother since he was a young child. As a teenager, he enjoyed racing dirt bikes and anything to do with cars. He denied any history of physical, sexual or emotional abuse as a child or adolescent.

6. [133]

   He reported having been expelled from school in year nine: “I was just always mucking up”. He did not attain his school certificate, noting: “I never did well at school … I was just hanging out with the wrong crowd”. Following school, he worked in a smash repair shop and as a mechanic’s assistant. Dr Bench stated: “He noted having lost jobs due to drug use and failure to attend work”. At the time of his arrest, he was working with his father in his tree-lopping business. He regards himself as close to his father.

7. [134]

   Keith Evans was in a relationship with Christine from age 16 until the time of his arrest. He has no children.

8. [135]

   In relation to his use of drugs and alcohol, Keith Evans reported drinking alcohol on a daily basis from age 13 until the time of the offences, by then consuming approximately a six pack of beer a day. He commenced using cannabis at age 12 and smoked about a quarter of an ounce daily from age 13 until a year before his arrest, when he ceased. He commenced using amphetamines at age 16 and in the 12 months up to his arrest he was using “a couple of points a few times per week”. He has used heroin “on a couple of occasions”. He denied using amphetamines on either of the days of the offences.

9. [136]

   Dr Bench diagnosed Keith Evans as meeting the diagnostic criteria for Cannabis Use Disorder, Alcohol Use Disorder and Stimulant Use Disorder.

10. [137]

    At the time of the offences, Keith Evans was subject to four separate bonds that were imposed pursuant to s 9 of the CSP Act, two of which were for matters of violence. The first in time was for contravening an apprehended violence order. The third and fourth were each for a period of two years. They were imposed at Grafton Local Court on 19 April 2017, for common assault and destroying or damaging property. He was also fined for an offence of driving behind another vehicle too closely to stop safely. Those arose from an incident on 8 May 2016.

11. [138]

    Although the charges and penalties imposed suggest that the incident was not serious, in retrospect it was disturbingly similar to the evidence of the chase. The police facts were to the effect that at about 1:05pm, the victim was driving his car along the Pacific Highway, North of Maclean. He passed the Evans’ Triton which was joining the highway from a side road. Keith Evans was driving and John Evans was in the front passenger seat. The victim was travelling at approximately 100km/h. The Triton followed the victim so closely that he could not see the Triton’s headlights. He tapped his brakes, hoping that his brake lights would encourage the driver to stop tailgating him. Keith Evans continued to tailgate him, eventually colliding with the rear of the victim’s vehicle. The victim pulled over, as did Keith Evans, who abused the victim and then punched his windscreen repeatedly until it cracked. John Evans then exited the Triton. Keith Evans leaned into the passenger window of the victim’s car and picked up a spring that had been on the seat and swung it at the victim. The victim drove off quickly, pursued by the Triton. He drove to Grafton Police Station and reported the incident.

12. [139]

    As evidence of remorse, the offender relied upon a passage from Dr Bench’s report, the relevant parts of which were that, in relation to the Wound with Intent: “I shouldn’t have taken it so far ... I do feel guilty, he got some bad injuries in that fight. I took it too far.” In relation to the murder, he said:

13. [140]

    I find that there is no evidence of remorse by Keith Evans.

14. [141]

    This is Keith Evans’ first time in prison. I note that he has incurred ten disciplinary matters, including three for possessing an offensive weapon or instrument and four for drug-related offences.

15. [142]

    The history taken by Dr Bench was to the effect that he has used buprenorphine in prison, although at the time of the report he had not used it for 12 months, having been treated with Buvidal, and he was participating in a substance abuse program.

16. [143]

    Dr Bench noted that Keith Evans claimed that he has received threats of attack. He experiences depression and significant anxiety, because he misses his father and XE, and because of fear of being attacked. Dr Bench said:

17. [144]

    Counsel for Keith Evans submitted that the anxiety that he is experiencing in prison constitutes a mental condition to be taken into account in the manner indicated in Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]-[178].

18. [145]

    I accept that there is a real danger of Keith Evans being attacked whilst in prison, as a result of the offences for which he has been convicted, and therefore it is unsurprising that he is feeling anxiety as a consequence. I note that in De La Rosa at [177], McClellan CJ at CL observed that “the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process” and that such a condition will be relevant if “a custodial sentence may weigh more heavily on the person”. I find that is made out.

19. [146]

    I propose to take into account the likely harsher conditions of imprisonment, which may include periods on protection, by varying the ratio of the non-parole period to the total sentence.

20. [147]

    Dr Bench expressed a view that Mr Evans’ prospects for rehabilitation depend upon his willingness and capacity to refrain from substances of abuse and engage in appropriate therapy in custody. Dr Bench said, “if he continues to refrain from substances of abuse, his prospects for rehabilitation would be improved”.

21. [148]

    In relation to both offences, counsel for Keith Evans submitted that he was unlikely to reoffend because of the unusual features of this case.

22. [149]

    I find that Keith Evans’ prospects of rehabilitation are guarded.

23. [150]

    Counsel submitted that an adjustment of the ratio of the non-parole period to the total sentence was appropriate in view of the evidence as to Keith Evans’ prospects of rehabilitation. I accept that submission, reflecting as well the issue of hardship in prison.

John Evans: The objective seriousness of the offence

1. [151]

   I note the factors concerning objective seriousness common to all three offenders and the finding that John Evans intended that one or more of the persons in the Kluger would be killed.

2. [152]

   As to considerations that are relevant only to John Evans, I take into account the following. I conclude that there was a hierarchical structure in the joint criminal enterprise and that John Evans was its leader. I come to that conclusion having regard to the following evidence. John Evans’ text to Keith Evans the night before of a “job half done” was critical of Keith Evans for how he had handled the fallout from the assault. There was a two minute turnaround that morning when John Evans arrived back at Jilliby Street and left in the Triton with his children, suggesting a strong desire by John Evans to quickly catch up with the perpetrators of the Jilliby Street incident. I infer he was motivated by his daughter’s distress, seeing her injuries, the damage to his house and frustration as to how the violence had spread. I accept the evidence of Keith Evans that John Evans told him to accompany him in the Triton. John Evans drove the Triton, he produced the shotgun in the Woodward Avenue incident and told those present “I’m not fucking around”, which suggests he believed himself to be the primary decision maker. He was the perpetrator of the chase and, after the killing was done, according to John Evans, it was he who got rid of the shotgun.

3. [153]

   Secondly, John Evans involved his own children as co-offenders in the murder, one of whom he had particular responsibility for, being a 17 year old. It was an appalling failure by him as a parent that in my view contributes to the objective seriousness of the offence.

4. [154]

   Factors that are relevant in mitigation of objective seriousness are that he was not the direct perpetrator, and my finding that he was motivated by his daughter being injured and his house damaged, by persons who he and his daughter had not harmed.

5. [155]

   Senior counsel for John Evans submitted that the objective seriousness was below mid-range, whereas the prosecution submitted that it was almost as great as that of Keith Evans. By reason of the factors I have identified, I regard the objective seriousness of the offence committed by John Evans as slightly greater than that of Keith Evans.

6. [156]

   In my view, the objective seriousness of the offence in relation to John Evans is slightly above that for the offence of murder committed by Keith Evans.

John Evans: Subjective considerations

1. [157]

   A recent forensic psychiatric report, prepared by Dr Sam Calvin, was tendered. Dr Calvin reported that there were no cognitive deficits and no evidence of “any delusions, hallucinations or any features of psychosis … He does not meet the criteria for a psychiatric diagnosis”.

2. [158]

   Dr Calvin’s report relates a brief history by the offender as to his background, which is to the following effect. He was one of five children and grew up in a supportive family. Dr Calvin thought he described some symptoms of hyperactivity and possibly an undiagnosed Attention Deficit Hyperactivity Disorder (ADHD) in his childhood years. He was not gifted academically, struggling in some subjects including English, but he excelled in sports. After leaving school, he founded three businesses, in tree lopping, house demolition and a mobile kebab shop. He regarded himself as highly successful in work, saying that he was a hard worker.

3. [159]

   He gave a history of four relationships in the past, which he described as “stable”. He was in a stable relationship at the time of his arrest. He regards himself as very family-focused.

4. [160]

   He indicated through his counsel that he has some “[I]ndigenous background” but does not regard himself as being Indigenous.

5. [161]

   The history taken by Dr Calvin as to John Evans’ drug and alcohol use was that, as a young man growing up in Sydney’s Northern Beaches, he used cannabis and would occasionally experiment with other drugs such as MDMA, but denied any regular drug use. His alcohol use was limited to weekends and social occasions.

6. [162]

   John Evans has a criminal record of offending since he was aged 18, although with a significant break between 1992 and 2007. There are repeated breaches of domestic violence orders, stalking and resist police. The facts of some of the offences suggest explosive behaviour, culminating in threats of violence or actual violence.

7. [163]

   John Evans has maintained his innocence of the charge, and therefore has expressed no remorse for having killed the deceased. In evidence during the trial, he said that the following morning he learned that a boy had been killed. He was asked:

8. [164]

   Senior Counsel for the offender suggested that John Evans “expressed his empathy” to Dr Calvin and to referees. Dr Calvin noted that:

9. [165]

   I do not regard this passage from Dr Calvin’s report as being indicative of remorse for the killing of Jesse Thompson, but rather, regret for the consequences of the offence for his children.

10. [166]

    Seven written references were tendered, from his current partner, an ex-wife, one of his sisters, a brother in law, two nephews and a friend. The only expression of remorse is in the letter from his current partner, who stated: “John has expressed his sadness that a life was lost due to a situation getting out of control and the impact it has had on many people”.

11. [167]

    I make an allowance for John Evans being a person who is naturally reserved and, in my view, somewhat blunt in affect. However, his evidence as to the impact of the deceased’s death on him and his demeanour as he gave it, even in his claimed context of the death being an unintended accident, struck me as being devoid of any significant concern as to what had befallen the deceased. I find that the offender has not expressed any remorse for the offence.

12. [168]

    No material has been tendered as to how John Evans has fared in prison since his arrest, other than a submission that he has had no disciplinary matters, which I accept. I note that it is his first prison sentence.

13. [169]

    The references tendered on behalf of John Evans from people who have known him well over many years, present a positive picture of him.

14. [170]

    Dr Calvin stated:

15. [171]

    I accept Dr Calvin’s opinion that the offender has favourable prospects of rehabilitation. I will adjust the ratio of the non-parole period to the total sentence to reflect an extended need for continuing supervision of him in the community.

XE: The objective seriousness of the offence

1. [172]

   The same group of factors that apply to Keith Evans in the determination of objective seriousness apply to XE as well. I take into account the finding that she intended, as part of the joint criminal enterprise, that one or more of the occupants of the Kluger would be killed.

2. [173]

   The objective seriousness of the offence committed by XE is significantly mitigated by two factors, being XE’s youth and consequent immaturity, and the fact that she was, in my view, encouraged to join the criminal enterprise by her father who was one of her co-offenders and who, above others, should have prevented her from joining it.

3. [174]

   The objective seriousness of the offence committed by XE is below mid-level.

XE: Subjective considerations

1. [175]

   XE identifies as being a young Indigenous woman, from the Worimi Bidjigal mobs. She and Keith Evans have different mothers.

2. [176]

   A background report prepared by Juvenile Justice (“the Background Report”) notes her background as follows. She is the only child of her parents. She was primarily raised by her father, who was not supportive of her having contact with her mother, due to her mother’s substance abuse issues. Her mother was interviewed for the preparation of the report and acknowledged that she was largely absent from XE’s life, “advising that she frequently fled the family home due to domestic violence”. Her mother expressed a desire to rebuild her relationship with her daughter.

3. [177]

   XE expressed admiration and gratitude for the support that her father had provided during her formative years. She stated that she never wanted for anything, although her father was not emotionally expressive. She described him as being a very strict parent who would at times use physical punishment, but as she became older, the punishment was usually having privileges removed. The report continued:

4. [178]

   When she was approximately 15 years old, her father sent her to reside with a paternal aunt in Maitland and then a paternal aunt and uncle in Queensland. She stated that her father made this arrangement in response to her risk-taking behaviours and disengagement at school, hoping that the influence of a female role model would be beneficial. The report continued: “She expressed appreciation that her family extended their support, however informed that at the time she was not in the mindset for positive change”.

5. [179]

   The report noted:

6. [180]

   She attended three different high schools within the Central Coast and Maitland areas. Due to significant behavioural problems, including fighting and possession of drugs on school property, she was expelled in 2016. In Queensland, she completed her year 10 certificate but did not recommence her studies on returning to New South Wales. She gained casual employment with a supermarket.

7. [181]

   A report was sought by Juvenile Justice from Adrian Gillespie, psychologist, which is dated 11 March 2021. He administered a clinical tool for the assessment of violence risk in adults, known as the Historical Clinical and Risk Management tool (HCR-20). He concluded:

8. [182]

   Mr Gillespie diagnosed her as having bipolar disorder and post-traumatic stress disorder. However, in a report dated 27 April 2021, psychiatrist Dr John Kasinathan rejects that diagnosis, which I accept.

9. [183]

   In relation to her substance abuse history, the report noted that she periodically used cannabis and Ecstasy and smoked tobacco daily. Following a sporting injury in 2016, her use of drugs escalated, which she attributed to being isolated from her support network and experiencing difficulties coping with the stressors in her life. She began to use methamphetamine, which increased to daily use in December 2016. She acknowledged daily poly drug use at the time of the offence.

10. [184]

    On 13 February 2017, XE was arrested and charged with reckless wounding, contrary to s 35(4) of the Crimes Act, and also with detaining a person for advantage. It was alleged that on 6 February 2017, she and the victim, a 27 year old male, were at a property where a number of people lived. At about 4:30am, while the victim had his back to her, she stabbed him in the back with a knife, causing a wound to his right posterior flank. She left the knife in his back and ran off. He suffered traumatic renal injury, requiring hospitalisation.

11. [185]

    On fleeing the house after stabbing the victim, she approached a 19 year old woman, at about 5am, who was on her way to work. XE held a baseball bat at her hip as she also held the woman by her arm and demanded a lift in the woman’s car. The woman obliged.

12. [186]

    XE pleaded guilty to both charges, and on 4 June 2019, she was sentenced for the charge of reckless wounding and on the following day for the charge of detaining a person for advantage. For both matters she received control orders.

13. [187]

    On 2 June 2017, she was arrested and charged with assault occasioning actual bodily harm and larceny, arising from an incident on 8 April 2017. It was alleged that she repeatedly punched the victim to the face and demanded from her strips of buprenorphine, which she received. On 11 April 2018, she pleaded guilty, receiving a 12 months bond. She was on bail in relation to both matters at the time of the offence.

14. [188]

    There is evidence of remorse by XE in the form of letters that she has penned to the Court and in reports concerning her. While I accept that she genuinely regrets her actions and the death of Jesse Thompson, that degree of remorse is tempered by her continuing position of refusing to admit guilt for the offence. In particular, having regard to the terms of s 21A(3)(i) of the CSP Act, she has not provided evidence that she has accepted responsibility for his or her actions or acknowledged that Jesse Thompson’s death was caused by her actions, as well as the actions of others.

15. [189]

    The Background Report noted that since her admission to Reiby Youth Justice Centre, she had completed year 11 and three year 12 ATAR subjects. It noted:

16. [190]

    The Background Report noted that since being in custody, she has only maintained community contact with pro-social peers. Staff noted that she had distanced herself from anti-social, pro-criminal associates and has become a role model to younger detainees within the centre.

17. [191]

    The authors of the Background Report also noted that she has a strong connection to her culture which she has embraced while in custody, taking a lead role in cultural programs and significant cultural events whilst engaging with Indigenous mentors and Elders. At the time of the report, she was actively engaged in the development of an Indigenous program that focuses on addressing violence and offences related to violence in young Indigenous girls and women who have come into contact with the justice system. She was also engaged with another mentoring program for young people involved in the criminal justice system and has actively participated in other programs of a similar nature.

18. [192]

    The Background Report concluded:

19. [193]

    The authors noted that she will require continual intensive support, particularly focused on her reintegration into the community.

20. [194]

    Dr Gillespie concluded, in relation to her prospects for rehabilitation:

21. [195]

    The positive assessments in the Background Report and Mr Gillespie’s report were reflected in personal letters by staff of Juvenile Justice, attesting to XE’s progress and reform from her earlier criminal behaviour.

22. [196]

    I conclude that XE’s prospects of rehabilitation are very good, although a need remains for extended supervision in the community, warranting a finding of special circumstances.

Formulation of the sentences

1. [197]

   As already noted, the maximum penalty for the offence of murder is life imprisonment. There is a standard non-parole period of 20 years. The maximum penalty for the offence of Wound with Intent is imprisonment for a period of 25 years, and it has a standard non-parole period of 7 years.

2. [198]

   For both offences, I impose an aggregate sentence of imprisonment for a period of 32 years backdated to commence on the date of his arrest on 4 July 2017 and expire on 3 July 2049. I impose a non-parole period of 22 years and 4 months, which will expire on 3 November 2039.

3. [199]

   The indicative sentence for the offence of murder is imprisonment for a period of 30 years with a non-parole period of 21 years. The indicative sentence for the offence of wound with intent to cause grievous bodily harm is 6 years with a non-parole period of 4 years and 6 months.

4. [200]

   For the offence of murder, I impose a sentence of imprisonment of 31 years, backdated to commence on the date of his arrest on 4 July 2017 and to expire on 3 July 2048. I impose a non-parole period of 22 years and 6 months, to expire on 3 January 2040.

5. [201]

   For the offence of murder, I impose a sentence of imprisonment of 17 years, backdated to commence on the date of her arrest on 4 July 2017 and to expire on 3 July 2034. I impose a non-parole period of 10 years and 6 months, which will expire on 3 January 2028.