Bentley v R; Davies v R; Thomas v R; Tilley v R

[2021] NSWCCA 18

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Bentley v R; Davies v R; Thomas v R; Tilley v R [2021] NSWCCA 18

Hearing dates:

31 July 2020

Decision date:

26 February 2021

Before:

Bathurst CJ at [1];
N Adams J at [224];
Ierace J at [235]

Decision:

(1)   Grant the applicants leave to appeal.

(2)   Allow the appeal.

(3)   Quash the sentences imposed on each applicant and in lieu thereof impose the following sentences:

(a) For the offence of supply commercial quantity of methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) taking into account in the cases of the appellants Bentley, Thomas and Tilley the offences on the Form 1 impose a sentence of a non-parole period of imprisonment of two years commencing on 3 September 2015 and expiring on 2 September 2017 with a balance of term of one year expiring on 2 September 2018.

(b)   For the offence of concealing a corpse impose a sentence of a fixed term of imprisonment of three years commencing on 3 September 2016 and expiring on 2 September 2019.

(c)   For the manslaughter of Brendan Vollmost on 31 March 2015 impose a sentence consisting of a non-parole period of imprisonment of seven years commencing on 3 September 2018 and expiring on 2 September 2025 with a balance of term of five years expiring on 2 September 2030.

Catchwords:

CRIME – appeals – appeal against sentence – re-sentence – accumulation of sentence – special circumstances – whether sentencing judge erred in variation of statutory ratio

CRIME – appeals – appeal against sentence – conceal corpse – objective seriousness – whether sentencing judge erred in his determination that the applicants knew of the location of the deceased’s body but failed to disclose it – remorse – whether sentencing judge erred in his rejection of remorse

CRIME – appeals – appeal against sentence – manifest excess – manslaughter – conceal corpse – objective seriousness of offences

Legislation Cited:

Coroners Act 2009 (NSW)

Crimes Act 1900 (NSW)

Crimes (Administration of Sentences) Regulation 2014 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

AB v R [2014] NSWCCA 339

Azzopardi v R [2019] NSWCCA 306

Bugmy v R (2013) 249 CLR 571; [2013] HCA 37

Calhoun (a pseudonym) v R [2018] NSWCCA 150

Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim 150

Dawson v R [2013] NSWCCA 61

Deakin v The Queen (1984) 58 ALJR 367; [1984] HCA 31

Elwood v R [2019] NSWCCA 315

GP v R [2017] NSWCCA 200

Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49

Hili v R (2010) 242 CLR 520; [2010] HCA 45

Hordern v R [2019] NSWCCA 138; (2019) 278 A Crim R 353)

Johnson v R [2010] NSWCCA 124

Kliendienst v R [2020] NSWCCA 98

Lloyd v R [2017] NSWCCA 303

Lowe v R (1984) 154 CLR 606; [1984] HCA 46

Mulato v R [2006] NSWCCA 282

Pham v R [2010] NSWCCA 208

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

Power v The Queen (1974) 131 CLR 623; [1974] HCA 26

R v Aljubouri [2019] NSWSC 180

R v Bryant [1999] NSWCCA 181

R v Davis (1942) 42 SR (NSW)

R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1

R v Heffernan (1951) 69 WN (NSW) 125

R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49

R v Lavender (2005) 222 CLR 67; [2005] HCA 37

R v Merrick (No 5) [2016] NSWSC 661

R v Olbrich (1999) 199 CLR 270; [1999] HCA 54

R v Simpson (1992) 61 A Crim R 58

Ramos v R [2015] NSWCCA 313

Sabongi v R [2015] NSWCCA 25; (2015) 249 A Crim R 167

Spark v R [2012] NSWCCA 140

Wong v R (2001) 207 CLR 584; [2001] HCA 64

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Proceedings 2015/00258433
Mitchell Bentley (Applicant)
The Crown (Respondent)

Proceedings 2015/00258493
Jack Davies (Applicant)
The Crown (Respondent)

Proceedings 2015/00258448
William Patrick Thomas (Applicant)
The Crown (Respondent)

Proceedings 2015/00258462
Jamie Tilley (Applicant)
The Crown (Respondent)

Representation:

Counsel:
Proceedings 2015/00258433
M Curry (Applicant)
B Hatfield (Respondent)

Proceedings 2015/00258493
S Kluss (Applicant)
B Hatfield (Respondent)

Proceedings 2015/00258448
I McLachlan (Applicant)
B Hatfield (Respondent)

Proceedings 2015/00258462
SJ Odgers SC (Applicant)
B Hatfield (Respondent)

Solicitors:
Proceedings 2015/00258433
O’Brien Hudson Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

Proceedings 2015/00258493
Ross Hill & Associate Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

Proceedings 2015/00258448
Matouk Joyner Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

Proceedings 2015/00258462
Ross Hill & Associate Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2015/258433; 2015/258493; 2015/258448; 2015/258462

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2019] NSWSC 1649

Date of Decision:

29 November 2019

Before:

Harrison J

File Number(s):

2015/258433; 2015/258493; 2015/258448; 2015/258462

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicants, Mr Mitchell Bentley (Bentley), Mr Jack Davies (Davies), Mr William Thomas (Thomas) and Mr Jamie Tilley (Tilley), were each sentenced to 15 years’ imprisonment with a non-parole period of 11 years and a balance of term of four years after pleading guilty to the offences of manslaughter by unlawful and dangerous act and concealing a corpse. Additionally, each applicant pleaded guilty to separate but interrelated drug offences, including the offence of supply a commercial quantity of methylamphetamine. The applicants sought leave to appeal against their respective sentences.

At the relevant time, the applicants and the deceased, Mr Vollmost, were drug dealers. The applicants had previously had a falling out with the deceased. On the evening of 31 March 2015, the applicants acted in a joint criminal enterprise with the intention of assaulting the deceased at his premises.

The deceased was a passenger in a Holden Commodore station wagon (the Commodore) driven by Mr Byrnes, with Mr Knight in the rear passenger seat. The applicants pursued the deceased in a Hyundai station wagon (the Hyundai) before chasing the deceased up his driveway. Davies and Bentley were behind the deceased and Mr Byrnes as they ran through the gates of the premises and into a shed. Mr Knight attempted to get out of the Commodore, but was prevented from doing so by Tilley, who stood guard. After parking the Hyundai, Thomas ran towards the shed to assist Davies and Bentley.

Once inside the shed, Bentley and Davies together inflicted at least three violent blows to the deceased, at least two of which were delivered while the deceased was already wounded. The deceased suffered substantial blood loss and died directly as a result of the injuries he sustained during the assault. During this time, Thomas and Tilley took turns guarding Mr Knight while the other entered the shed.

Following the death of the deceased, the applicants formed a joint criminal enterprise to take the deceased’s body away from the deceased’s premises so that it could be later disposed of by one or more of them. Bentley and Tilley placed the body of the deceased into the Hyundai. With Thomas as the driver, the applicants drove away.

One or more of the applicants later cut the Hyundai into parts and disposed of the pieces, which have never been found. The deceased’s body was later disposed of and his remains have never been found.

The applicants sought leave to appeal against their sentences on a number of grounds. The grounds of appeal dealt with several issues, including whether the sentencing judge erred in sentencing the applicants on the basis that they knew where the body of the deceased was located and chose not to disclose that location; whether there was a failure to consider cumulation of sentence as a special circumstance (the accumulation ground); and whether the sentence for the manslaughter and conceal corpse offences was manifestly excessive.

The Court granted the applicants leave to appeal and allowed the appeal on the accumulation ground. The Court resentenced the applicants to 15 years’ imprisonment with a non-parole period of 10 years and a balance of term of five years.

Did the sentencing judge err in his determination that the applicants knew of the location of the deceased’s body but failed to disclose it and in his rejection of remorse?

1. The sentencing judge treated the fact that the location of the body was unknown, as distinct from the failure by the applicants to disclose its whereabouts, as the matter which increased the objective seriousness of the conceal corpse offence. This approach was consistent with authority: [119]-[120] (Bathurst CJ); [224] (N Adams J); [235] (Ierace J).

R v Davis (1942) 42 SR (NSW) 263; R v Heffernan (1951) 69 WN (NSW) 125, referred to.

1. Although it is correct that it was up to the applicants to demonstrate remorse, the finding of a particular factual matter which would tend to demonstrate a lack of such remorse is a finding adverse to the applicants and is therefore required to be established beyond reasonable doubt: [123]-[124] (Bathurst CJ); [224] (N Adams J); [235] (Ierace J).

R v Olbrich (1999) 199 CLR 270; [1999] HCA 54, referred to.

1. It was open to the sentencing judge to be satisfied that it was unbelievable that Davies had not told the other applicants of where or how he had disposed of the body and therefore, to be satisfied beyond reasonable doubt that the applicants knew of the location of the deceased’s body: [130] (Bathurst CJ); [224], [226] (N Adams J); [235] (Ierace J).

AB v R [2014] NSWCCA 339; Azzopardi v R [2019] NSWCCA 306, referred to.

1. The sentencing judge was correct in concluding that the applicants were not entitled to the full benefit of their expressions of remorse for failing to disclose the location of the deceased’s body in circumstances where they knew of its location: [131] (Bathurst CJ); [224] (N Adams J); [235] (Ierace J).

Did the sentencing judge err in failing to take into account cumulation of sentence as a special circumstance?

1. The effect of cumulation of sentences can constitute special circumstances to warrant a variation to the statutory ratio provided by s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW): [145] (Bathurst CJ); [224] (N Adams J); [235] (Ierace J).

Calhoun (a pseudonym) v R [2018] NSWCCA 150; R v Simpson (1992) 61 A Crim R 58, referred to.

1. However, a finding of special circumstances is a discretionary one and it is necessary to establish error: [145]-[147] (Bathurst CJ); [224] (N Adams J); [235] (Ierace J).

Spark v R [2012] NSWCCA 140; Sabongi v R [2015] NSWCCA 25; (2015) 249 A Crim R 167; Dawson v R [2013] NSWCCA 61; Elwood v R [2019] NSWCCA 315, referred to.

1. The sentencing judge made an express finding of special circumstances and varied the statutory ratio to a “moderate” extent. However, no reference was made to the fact that the effect of the accumulation resulted in a ratio between the non-parole period and the actual sentence of 73.3 per cent, a reduction of 1.7 per cent from the statutory ratio: [148]-[149] (Bathurst CJ); [224] (N Adams J); [235] (Ierace J).

2. A variation of 1.7 per cent for three months on the otherwise minimum term cannot be said to be a moderate variation of the statutory ratio or bear any resemblance to the ratio in respect of the individual sentences. Accordingly, this matter was overlooked: [150] (Bathurst CJ); [224], [234] (N Adams J); [235] (Ierace J).

Did the sentencing judge impose manifestly excessive sentences for the manslaughter and conceal corpse offences?

1. The manslaughter offence is a most serious offence. The appropriate sentence after a discount of 10 per cent for a plea of guilty was that imposed by the sentencing judge, namely 12 years’ imprisonment: [217] (Bathurst CJ); [224] (N Adams J); [235] (Ierace J).

2. The conceal corpse offence was a serious offence having the capacity to obstruct the administration of justice and prevent the deceased’s family from laying the deceased to rest. The appropriate sentence was that imposed by the sentencing judge, namely a fixed term of three years’ imprisonment: [218] (Bathurst CJ); [224] (N Adams J); [235] (Ierace J).

Judgment

1. BATHURST CJ: The applicants, Mitchell Bentley (Bentley), Jack Davies (Davies), William Thomas (Thomas) and Jamie Tilley (Tilley) (collectively called the applicants) pleaded guilty to the offences of manslaughter and concealing a corpse. In addition, they each pleaded guilty to separate but what might be described as interrelated drug offences.

2. The applicants were charged on two indictments, the first relating to the offence of manslaughter and unlawful disposal of a corpse and the second relating to the supply of a prohibited drug.

3. The indictment relating to the manslaughter and concealing a corpse offences, so far as is relevant, was in the following terms:

“On or about 31 March 2015, at South Windsor in the State of New South Wales, did unlawfully kill Brendan VOLLMOST.

S 18(1)(b) Crimes Act 1900 Law part code 3

…

on or about 31 March 2015, at South Windsor and elsewhere in the State of New South Wales, did knowingly conceal a corpse, knowing the death to have been caused by abnormal circumstances, and in a manner likely to prejudice an enquiry by the proper authorities.

Common Law (New South Wales) Law Part Code 17091”

4. The terms of the indictment for the supply of a prohibited drug were as follows:

“         MITCHELL BENTLEY

1   between 31 March 2015 and 31 August 2015, at South Windsor in the State of New South Wales, did supply a prohibited drug, namely methylamphetamine, in an amount more than the commercial quantity for that drug, namely 950 grams.

S 25(2) Drug Misuse and Trafficking Act 1985 Law part code 3183

…

JACK DAVIES

2   between 31 March 2015 and 31 August 2015, at South Windsor in the State of New South Wales, did supply a prohibited drug, namely methylamphetamine, in an amount more than the commercial quantity for that drug, namely 505 grams.

S 25(2) Drug Misuse and Trafficking Act 1985 Law part code 3183

…

WILLIAM THOMAS

3   between 31 March 2015 and 31 August 2015, at South Windsor in the State of New South Wales, did supply a prohibited drug, namely methylamphetamine, in an amount more than the commercial quantity for that drug, namely 567 grams.

S 25(2) Drug Misuse and Trafficking Act 1985 Law part code 3183

…

JAMIE MICHAEL TILLEY

4   between 31 March 2015 and 31 August 2015, at South Windsor in the State of New South Wales, did supply a prohibited drug, namely methylamphetamine, in an amount more than the commercial quantity for that drug, namely 950 grams.

S 25(2) Drug Misuse and Trafficking Act 1985 Law part code 3183”

5. The manslaughter offence carries a maximum penalty of 25 years. There is no standard non-parole period.

6. The offence of concealing a corpse is a common law offence in respect of which there is no maximum penalty prescribed.

7. The maximum penalty for the offences contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) is 20 years’ imprisonment with a standard non-parole period of 10 years.

8. In relation to the drug offence to which Bentley pleaded guilty, he asked there to be taken into account on a Form 1 the offence of supplying an indictable quantity of a prohibited drug, namely 20 grams of cocaine, and receipt of stolen property, namely a watch valued at $300. Davies asked there to be taken into account in respect of his drug offence an offence of conspiracy to break, enter and steal in company, whilst Tilley asked there to be taken into account offences of conspiracy to break, enter and steal in company and supply a commercial quantity of a prohibited drug, namely 20 grams of cocaine.

9. The applicants each received the following sentence:

“(1) For the offence of supply a commercial quantity of methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985, taking into account the offences on the Form 1, sentenced to a non-parole period of imprisonment of 2 years commencing on 3 September 2015 and expiring on 2 September 2017 with a balance of term of 1 year expiring on 2 September 2018.

(2)    For the offence of concealing a corpse, sentenced to a fixed term of imprisonment of 3 years commencing on 3 September 2016 and expiring on 2 September 2019.

(3)    For the manslaughter of Brendan Vollmost on 31 March 2015, sentenced to a non-parole period of imprisonment of 8 years commencing on 3 September 2018 and expiring on 2 September 2026 with a balance of term of 4 years expiring on 2 September 2030.”

The total sentence imposed on each applicant was a sentence for a term of 15 years comprising a non-parole period of 11 years and a balance of term of 4 years.

10. It should be noted that the applicants pleaded guilty to the offences of manslaughter by unlawful and dangerous act and unlawful disposal of a corpse following two trials in which they were charged with the murder of the deceased and in respect of which the jury was unable to reach a verdict. In that context the sentencing judge allowed each of the applicants a discount of 10 per cent for the plea of guilty to the offence of manslaughter, 20 per cent in respect to the offence of supply a commercial quantity of methylamphetamine and 25 per cent in respect to the offence of concealing a corpse.

11. The applicants have sought leave to appeal against the sentences imposed on them on the following grounds:

a   Bentley and Tilley

1.   The sentencing judge erred in sentencing the applicant on the basis that he knew where the body of the deceased was located and chose to not disclose that location.

2.   The overall sentence imposed for the manslaughter offence and conceal corpse offence was, in all the circumstances, manifestly excessive.

3.   The sentencing judge erred in failing to take into account cumulation of sentence as a “special circumstance”.

b   Davies

“1.   His Honour erred in relation to his rejection of the remorse of the applicant with respect to the manslaughter offence.

2.   The sentencing judge erred in failing to take into account cumulation of sentence as a ‘special circumstance’.

3.   His Honour imposed an overall sentence in relation to the manslaughter and the conceal body offence that was in all the circumstances manifestly excessive.”

c   Thomas

“1.   In assessing the relevant objective considerations on sentence, his Honour:

(a)   erred with respect to the manslaughter count, in failing to distinguish between the conduct of the applicant as opposed to that of the other offenders and thereby failed to identify the applicant’s lower level of culpability on this count;

(b)   erred with respect to the conceal corpse count,

i   in declining to find that the applicant did not know where the deceased’s body was disposed of; and/or

ii   in failing to distinguish between the conduct of the applicant as opposed to that of the other offenders and thereby failed to identify the applicant’s lower level of culpability on this count;

(c)   erred with respect to the commercial drug supply count, in failing to distinguish between the conduct of the applicant as opposed to that of the other offenders and thereby failed to identify the applicant’s lower level of culpability, in relative terms, on this count.

2.   In assessing the relevant subjective considerations on sentence, his Honour erred:

(a)   as regards the issue of remorse:

i   in finding that the applicant’s failure to reveal the whereabouts of the deceased’s body disentitled him to the full benefit of otherwise apparent expressions of remorse; and

ii   in otherwise failing to separately consider remorse for the commercial drug supply count.

(b)   in failing to give any or proper weight to the principle enunciated in Bugmy.

3.   The applicant otherwise has a justifiable sense of grievance by reason of receiving exactly the same sentences as those imposed on the co-offenders.”

12. At the hearing Thomas was granted leave to rely on the following additional grounds of appeal:

“4.   His Honour erred in failing to take into account cumulation of sentence as a ‘special circumstance’.

5.   His Honour imposed sentences for the manslaughter count and conceal corpse count which are manifestly excessive.”

The statements of agreed facts

13. There was a statement of agreed facts both in relation to the manslaughter and unlawful disposal of a corpse offences and in relation to the drug offences. The statement of agreed facts in relation to the former two offences was in the following terms:

“Background

1.   The offenders in this matter are Mitchell Bentley, Jack Davies, William Thomas and Jamie Tilley.

2.   At the relevant time, Brendan Vollmost (‘the deceased’) lived with his partner and children at …Cox Street, South Windsor.

3.   The offenders were drug dealers in the Hawkesbury area at the relevant time, as was the deceased.

4.   Prior to 31 March 2015, the offenders had a falling out with the deceased.

Events on 31 March 2015

5.   On the evening of 31 March 2015, the offenders acted in a joint criminal enterprise with the intention of assaulting the deceased at his premises at …Cox St in South Windsor.

6.   It is not alleged that any of the accused intended to cause grievous bodily harm to Mr Vollmost, nor that any of the accused foresaw the possibility that another accused would intentionally inflict grievous bodily harm upon the deceased. The offenders are to be sentenced for the offence of manslaughter by unlawful and dangerous act, being the blows inflicted upon Mr Vollmost in the rear shed at …Cox St South Windsor.

7.   The deceased was a passenger in a white Holden Commodore station wagon (‘the Commodore’) driven by Ronald Byrnes, with Brendan Knight in the rear passenger seat. The offenders pursued them in a white Hyundai station wagon, driven by Thomas, through the streets of South Windsor to …Cox Street, before exiting their vehicle and chasing the deceased up the driveway.

8.   The events in the driveway at …Cox St South Windsor were captured on video. That video will be tendered by the Crown at sentence.

9.   Davies, who was first up [the] driveway, was carrying an extended metal baton. Bentley was next up the driveway, followed by Tilley and finally Thomas.

10.   Davies and Bentley were behind the deceased and Byrnes as they ran through the gates and into the shed. Knight attempted to get out of the Commodore, but was prevented from doing so by Tilley, who stood guard. After parking the Hyundai, Thomas ran into [the] backyard, towards the shed to assist Davies and Bentley.

11.   Once inside the shed, Bentley and Davies acted in concert to inflict at least three violent blows to the deceased, at least two of which were delivered while the deceased was already wounded and was crouched down or kneeling. The deceased suffered substantial blood loss and died directly as a result of the injuries he sustained during the assault.

12.   The extendable metal baton was found on the floor of the shed in a closed position. Forensic testing revealed a trace amount of blood on the extendable arm of the baton, which was not visible to the human eye. Blood was also found on the tip of the extendable arm which returned a positive DNA match with the deceased.

13.   Thomas and Tilley took turns guarding Knight while the other entered the shed for a short time. Davies then left the shed and was the last to take over the role of guarding Knight. Thomas returned to the Hyundai.

14.   Following the death of the deceased, the accused formed a joint criminal enterprise to take the body of the deceased away from the premises at …Cox St so that it could be later disposed of by one or more of their number. In so doing, the offenders concealed the Deceased’s body so that the police could not conduct proper inquiries. The offenders all knew that the Deceased had died from an abnormal cause, namely violence inflicted upon him in the rear shed.

15.   Pursuant to this joint criminal enterprise, Bentley and Tilley carried the body of the deceased from the rear shed, down the driveway and into the waiting Hyundai.

16.   As the deceased was carried down the driveway, the next door neighbour, Alex Gorman, walked from his house and onto the driveway of …Cox St. Davies walked up to Mr Gorman and punched him in the face, knocking him backwards.

17.   Bentley and Tilley carried the deceased’s body to the Hyundai, placing him in the middle rear passenger seat. The offenders then drove away from the scene. Thomas was the driver.

Subsequent Events:

18.   One or more of the offenders later cut the Hyundai into parts and disposed of the pieces, which have never been found.

19.   The deceased’s body was later disposed of and his remains have never been found.”

14. The statement of agreed facts relating to the drug offences and the offences on the Form 1, so far as is relevant, set out the following:

“5.   The offenders were a very close-knit group. They considered themselves to be a family. The offender Tilley was the oldest in the group.

6.   The offender TILLEY at various times acted as an up-line supplier for DAVIES, THOMAS and BENTLEY.

7.   The offenders maintained ‘stash spots’ in parks, nature reserves and other public places in the South Windsor area, as well as the front and/or back yards of friends and Associates. Packages of methylamphetamine were hidden in these spots by the offenders for later retrieval and supply to customers.

TILLEY: Supply prohibited drug (commercial quantity – methylamphetamine)

8.   The offender TILLEY was the oldest in the group comprising the 4 offenders. TILLEY often sourced methylamphetamine for the other offenders to supply. TILLEY also supplied directly to customers of the co-offenders on a few occasions. The amounts involved ranged from 14 grams (1/2 ounce) to 28 grams (an ounce). TILLEY also supplied directly to customers (being the same customers as his co-offenders) on some occasions.

9.   Between 26 March 2015 and 31 August 2015, the offender TILLEY supplied a total of 950 grams of methylamphetamine to the co-offenders or to customers directly.

TILLEY: Supply prohibited drug (indictable quantity – cocaine) – Form 1

10.   The offender TILLEY was also involved in the supply of the prohibited drug cocaine. Between 26 March 2015 and 3 September 2015 TILLEY supplied at least 20 grams of cocaine to the co-offenders to customers directly.

BENTLEY: Supply prohibited drug (commercial quantity – methylamphetamine)

11.   Between 26 March 2015 and 31 August 2015 the offender BENTLEY sold methylamphetamine on a daily basis to customers in amounts of 1.75 grams (‘half balls’), 3.5 grams (‘8 ball’, or eighth of an ounce) or 7 gram quantities. BENTLEY primarily sold to five customers (being different customers to those of the other offenders). In total BENTLEY supplied a total of 950 grams of methylamphetamine between March and August 2015.

BENTLEY: Supply prohibited drug (indictable quantity – cocaine) – Form 1

12.   The offender BENTLEY was also involved in the supply of the prohibited drug cocaine. Between 26 March 2015 and 3 September 2015 BENTLEY supplied at least 20 grams of cocaine to customers in the Windsor area.

THOMAS: Supply prohibited drug (commercial quantity – methylamphetamine)

13.   Between 26 March 2015 and 31 August 2015, the offender THOMAS on-sold methylamphetamine to customers on a daily basis in amounts of 7 grams, 14 grams, and 28 grams (quarter, half and full ounce quantities respectively). He primarily sold methylamphetamine to five regular customers (being different customers to the other offenders). In total THOMAS supplied a total of 576 grams of methylamphetamine between March and August 2015.

DAVIES: Supply prohibited drug (commercial quantity – methylamphetamine)

14.   Between 26 March 2015 and 31 August 2015, the offender DAVIES on-sold methylamphetamine on a weekly basis to two regular customers in amounts of 56 grams or 28 grams. DAVIES primarily sold to 2 regular customers (being different customers to the other offenders). In total DAVIES supplied a total of 505 grams of methylamphetamine between March and August 2015.

DAVIES and TILLEY: Conspiracy to commit aggravated break, enter and serious indictable offence–in company–Sl – Form 1

15.   Between 31 March 2015 and 2 September 2015, the Offenders and a female co-offender conspired to commit an aggravated break, enter and steal upon the Victim, Leigh BROWN, at his residence situated at …Exbury Road, Kellyville.

16.   At the time of the offences, the Victim was known to the female co-offender, who discussed meeting the Victim with Tilley and, later, the girlfriend of DAVIES. During those conversations the female co-offender mentioned to TILLEY and DAVIES’ girlfriend that the Victim was in possession of a number of gold chains and other valuable items.

17.   Between 28 April 2015 and 6 June 2015, in conversations that were monitored covertly by Police, the Offenders and the female co-offender discussed the Victim, the Victim’s possessions and their value, the Victim’s dog that resided at …Exbury Road and the fact that the Victim did not keep his possessions in a safe or otherwise secured. The Offenders also discussed that the female co-offender confirmed the Victim’s house does have an alarm, and the methods by which they could enter the property. Later, TILLEY and the female co-offender had a further conversation concerning the alarm at the Victim’s house, including how to turn off the keypad.

18.   In some of these conversations the Offenders are speaking in a joking manner, but the details about the Victim are correct and the discussions are about real preparations to break into the Victim’s residence.

19.   On 29 April 2015, the Offenders covertly monitored a meeting between the female co-offender and the Victim at Westpoint Shopping Centre, Blacktown.

20.   The Offenders and the female co-offender did not at any time actually attempt to break into the Victim’s property or steal anything belonging to the Victim.

BENTLEY: Receiving when stealing a serious indictable offence – Form 1

21.   On 24 February 2015, a number of items were stolen from the bedroom of the Victim Connor THOMPSON while he was away from his residence at …Meeks Road, Marrickville. Those items included a Nixon brand 51-30 Crono wristwatch valued at $300.

22.   At some time after 24 February 2015, the Offender received the watch from an individual associated with the stealing, while knowing the watch to be stolen.”

The evidence surrounding the disposal of the body

15. As can be seen from the grounds of appeal, one of the principal issues in the appeal is the challenge to the conclusion reached by the sentencing judge that the applicants knew where the body of the deceased was located and chose not to disclose that location.

16. Davies was the only one of the applicants to give evidence at the sentencing hearing. In his examination in chief he gave the following evidence:

“Q. What do you have to say, if anything, to Mr Vollmost’s mother, step grandmother and the other members of the family from whom we heard indirectly this morning?

A. Everything that happened was terrible. It’s created a ripple effect and destruction to everyone’s family, not just your own. I’m so sincerely sorry that because, of my actions, in particular, not only were we there that night, but you have [–] I just can’t give you the closure that you want. I can’t bring Brendan back, I can’t tell you where his body is, it’s gone, it can’t be brought back and I’m so sorry for that. I have a mum too, I have people that I love and I understand. To an extent, the pain you feel but I can’t give you any closure to take that away and I don’t expect forgiveness, I really don’t. But I want you to believe me in your heart that I take full responsibility for everything that happened. It wasn’t meant to happen like it did. But I am sorry.”

17. He was cross-examined on the evidence given at the previous trial and was asked these questions:

“Q. Do you still maintain that when you drove up to Dorrigo with a ute, returned and then later washed that ute with ammonia, do you still maintain that had nothing to do with the disposal of Brendan Vollmost's body?

A. That ute was used for several reasons. Brendan Vollmost was in the back of that ute at one stage, but in the toolbox, as you well know, the cleaning came after. When we were finished with the ute, I cleaned the ute and gave it back to its rightful owner.

Q. Didn't you give evidence in the first trial that you'd cleaned the ute with ammonia because of your concern that it might have the residue of the drugs which you'd taken up to Dorrigo; do you recall that?

A. It's possible. I don't recall.

Q. Didn't you give a story - sorry. Wasn't your evidence at the first trial that the reason for this trip to Dorrigo was to get rid of all the drugs that you'd collected from your various stash spots?

A. That's correct, yes.

Q. And didn't you give evidence that the reason it was washed with ammonia is to purge the ute of any possible residue of the drugs before returning it to Whitey - I beg your pardon - to Mr Brett Clarke?

A. Clarke Brett?

Q. Yes?

A. Yeah, I can't recall.

Q. Why did you wash this ute with ammonia?

A. I can't recall why I washed it. I know what we used it for. I can't recall why I washed it with ammonia specifically.

…

Q. I think you said a minute ago that Mr Vollmost's body was in the back of the ute at one stage; is that right?

A. At one stage, well parts of the car were, your Honour, Mr Vollmost was in that car.

Q. No, no, I may have misheard you, the transcript will bear me out. But I thought you said that Mr Vollmost was in the back of the ute at one stage; did I mishear that?

A. Possibly. I'm not sure.

Q. Well, was he?

A. No, I don't think - I believe it went into the trailer, to be honest. But parts of the car that he was on went into the back of the ute.

…

Q. So you don't say that Mr Vollmost was in the ute; is that right?

A. I don't, no.

Q. You don't think so. Didn't you, on your evidence, personally take him to the scrap yard?

A. I did, yes.

…

Q. And how was Mr Vollmost in the trailer? Was he in anything?

A. Yes, he was in a toolbox.

Q. I'm going to show you exhibit P from the second trial (shown). Do you recognise those as closed circuit television stills from the scrap yard?

A. Yes.

Q. And you can see there the utility; is that right?

A. That's correct.

Q. And you can see a trailer; is that right?

A. That's correct.

…

Q. Where was Mr Vollmost's body?

A. I can't tell which load it was from looking at these, but if they are in sequence, it would be in the last load that we took to the scrap yard.

…

Q. You say that Mr Vollmost's body is somewhere in there, is that right?

A. At the base, yes.

Q. I thought you said that he was put in a tool chest?

A. That's right, yes.

Q. Can you see any tool chests there?

A. You can't see anything in there because there was so much in the trailer.

Q. You say there's a tool chest underneath there, do you?

A. I say there's definitely a tool chest in the base of that trailer, yes.

Q. You still maintain that you took him there and then he was put in this crushing machine, is that right?

A. No, I never said he was put in a crushing machine. There was a station wagon there that was there on the first time we went to the scrap metal yard. It presented an opportunity which I wish that I didn't take but by this stage Brendan had been at my house for already some time. I hadn't slept. I'd been taking Xanax. I just wanted the problem gone. I didn't do it the right way. I wish it didn't happen that way.

Q. Was there a crushing machine? Can you return to my question. Was there a crushing machine?

A. There was various plant machines, not a crushing machine what you're trying to describe, no.

Q. You brought your load in, is that right?

A. That's correct, yes.

Q. And you unloaded it, is that right?

A. That's correct.

…

Q. Where did you leave this toolbox?

A. Inside the back of the black station wagon that is in the other set of photos that aren't here.

Q. Had you been to this scrap yard before, other than on the 2nd, had you been there before?

A. I believe so, yes.

Q. Were you ever there when they processed the metal?

A. Processed the metal?

Q. Yes, when you left it there, were you familiar with what happens after that?

A. It's a sorting yard, yes, so I know what happens.

Q. It's a sorting yard and that means that they go through, look for items of value or different items of metal and sort them, is that right?

A. That's correct, yes.

Q. Some of it's crushed, some of it's salvaged, they do what they can with it to make money, is that right?

A. I guess so, yes.

Q. So, on your version, when you left this tool chest there, you had no idea whether someone from the scrap yard was going to come along and say, ‘Looks like a nice tool chest’?

A. You couldn't see the tool chest.

Q. Because you'd hidden it?

A. That's right.

Q. By putting it in the back of a--

A. Black station wagon or a dark station wagon, yes, which I'd told—

HIS HONOUR:

Q. Did you give any consideration to the possibility that when you took the tool chest, as you say, with Mr Vollmost's body in it, that somebody at the scrap yard might open it?

A. I did, your Honour, but we had that much and there was that much metal there, there was enough metal to cover it. This car was clearly going to be scratched [sic, scrapped]. It wasn't going to be salvaged. I grew up in the scrap metal business. I know how scrap metal works. I believed the front of the car already had parts of loose metal in it. If we were able to hide the toolbox, why would anyone go looking for a toolbox that no one ever saw from the get go.

Q. If you know how the scrap metal business works, and your information might be better than mine, it would be unlikely that a toolbox would be dealt with by a scrap metal merchant without knowing what was in it, for example, against the possibility that it might have had contaminating material, nonmetals?

A. Mm-hmm.

Q. Just wondered if the prospect that someone at the scrap metal yard might open it … [it] hadn't emerged in your conscience as a fairly significant possibility?

A. Not a fairly significant possibility, your Honour, but I believed with what we did that no one would be able to see the toolbox being that it was in the back of a wagon. It was the opportunity that presented itself which is why we took it. Like I said, I hadn't slept by this time. I probably wasn't thinking rationally, but thinking that I knew what would be happening next to this car, and what did happen next because the police shortly arrived after, as Mr Prosecutor does know, the car was already gone, so.

SCULLY:

…

Q. You're just making this whole - you're continuing to lie and make up this whole version about the scrap yard because you don't want to tell us where the body is?

A. No, that's incorrect.

Q. And you have absolutely no remorse because if you did you would tell us where the body is?

A. That's incorrect, Mr Crown.

Q. Mr Tilley was there with you, was he?

A. That's correct.

Q. Did you discuss with the offenders, other than Mr Tilley, that is, Mr Thomas and Mr Bentley, what you had done with the body?

A. No.

Q. Never discussed it?

A. Never discussed it.

Q. They never asked you?

A. We decided on that night after the event happened. We decided that whatever happened next we would never talk about it until we got our day in court. We thought we'd be arrested within 24 hours after the event and it didn't happen. For five months this went on.

Q. And you still maintain - what did you take up to Dorrigo again?

A. You already know the answer to that, Mr Crown.

Q. I know you took drugs but just remind me what you took?

A. Cannabis, a growth set-up, various drugs. I don't know what the boys had, different boxes full of various items that we didn't want the police to find.”

Factual findings by the sentencing judge

18. The sentencing judge rejected the submission made on behalf of Thomas that the deceased’s action or conduct in the circumstances leading up to his death somehow operated as provocation, stating that he preferred “to conclude that the offenders had determined in advance to follow Mr Vollmost to Cox Street and that they did not do so as a result of any provocative conduct on his part.” This finding was not disputed on the appeal.

18. The sentencing judge also rejected the submission on behalf of Thomas and Bentley that Mr Vollmost and Mr Byrnes had fled or retreated to the shed where Mr Vollmost was killed in order to arm themselves. Having regard to the offenders’ plea of guilty to manslaughter on the basis of an unlawful and dangerous act, his Honour stated that that issue was “completely irrelevant”. The sentencing judge also said he would not in any event have been satisfied that there was anything within the shed with which Mr Vollmost could either have armed himself on the one hand or, even if there was, there was insufficient time for him to do so. This finding is also not disputed on the appeal.

19. In relation to the disposal of the body, the sentencing judge noted that part of the evidence given by Davies was to the effect that Mr Vollmost’s body was taken by him and Tilley to a Penrith scrap metal yard in the back of a utility or its trailer together with Hyundai car parts and left there. Davies said that Mr Vollmost’s body was in a metal truck or toolbox and he confidently anticipated it would not be subject to inspection once it had been left in the yard.

20. The sentencing judge stated “I reject that evidence completely.”

21. In that context the sentencing judge referred to the evidence of Davies that he drove the same utility around lunchtime on 1 April 2015, the day following Mr Vollmost’s death, to Dorrigo in order to dispose of the offender’s drug stash. Davies denied that Mr Vollmost’s body was in the trunk or in a toolbox that was visible in the rear of the utility on its journey north. The sentencing judge noted that Davies accepted that the utility was cleaned and cleaned again using ammonia and a gurney following the trip to Dorrigo, but denied that it was for the purpose of removing any evidence of biological material that could be traced to the presence of Mr Vollmost’s body in the vehicle. However, his Honour noted that Davies agreed that the body had been in the utility at some stage.

22. The sentencing judge stated that on his account, Davies gave priority to the task of hiding the relatively modest amount of drugs that might have inculpated the applicants in drug-related crimes over the task of disposing of Mr Vollmost’s dead body that would have established their involvement in something far more serious. His Honour stated that he regarded that account as “inherently improbable”.

23. The sentencing judge further stated that what he described as the caution associated with a carefully planned and executed operation to dispose of drugs and with scrupulously sanitising the vehicle in which they were said to have been transported, was wholly inconsistent with carelessly dumping a body in an obviously loaded toolbox at a scrap metal yard and taking the risk that the operating procedures of the yard would not have revealed the existence of the body. In that context his Honour referred to the questions asked by him of Davies in the sentencing proceedings, which I have set out at [17] above.

24. The sentencing judge also stated that Davies’ evidence in his first trial, that the car parts were put into a crusher together with a toolbox containing Mr Vollmost’s body, was the subject of contradictory evidence called in reply.

25. In relation to the other applicants, the sentencing judge stated that, as only Davies gave evidence on sentence, the only version favourable to them was his evidence that he never discussed what he had done with the body with Thomas or Bentley. His Honour stated that, to the extent Thomas or Bentley relied on this evidence, he did not accept it. His Honour stated it was “inherently improbable” and “simply unbelievable” that Davies and Tilley disposed of Mr Vollmost’s body without telling either of the other two what became of it. The sentencing judge stated that all of the offenders were close to each other and they considered themselves to be family. It should be noted that in the statement of agreed facts relating to the drug offences at [14] above it was stated that the offenders were a very close knit group who considered themselves to be family, Tilley being the oldest in the group. The sentencing judge stated that it was “inconceivable” that after the decision to remove Mr Vollmost’s body from the scene of his death, Thomas and Bentley did not thereafter take an active interest in what would be done with it, or that they were both not aware of where Mr Vollmost’s body was taken by Davies and Tilley.

The sentencing judgment

27. The sentencing judge, after setting out the agreed facts in relation to the offences, dealt with subjective considerations relevant to each offender.

28. In relation to Tilley he noted he was born in October 1981 and was the eldest of the offenders.

29. The sentencing judge referred to a psychological report tendered by Tilley and prepared by Mr John Machlin, a clinical psychologist. His Honour noted that the psychologist’s report contained the following information:

30. Tilley was born in Sydney and raised at Seven Hills. His parents separated when he was about five and he stayed with his mother who formed a new relationship.

31. Tilley had always been close to his mother but did not get on with his stepfather, a drinker who was domineering and occasionally violent to his mother. Tilley feared him and he regarded his mother as his protector.

32. Tilley would stay reluctantly some weekends with his biological father who he described as very hard, stern and “military style”, and averse to any display of affection.

33. The report recorded that Tilley’s stepfather left a decade ago and Tilley continued living with his mother and younger half-brother who received a disability support pension. It stated that when Tilley bought a house they all moved in. Afterwards, he built a granny flat for himself to occupy, later to be joined there for some time by a de facto partner while his mother and half-brother stayed in the main house.

34. The report stated Tilley attended primary and high school in Seven Hills. His literacy was good, although he said he had behaviour and attitudal problems and believed he would have been diagnosed with ADHD had he received clinical attention. He continued schooling until the end of Year 12 and matriculated well enough to gain entry to a government position. He worked for CityRail for 13 years, progressing to a Station Manager in a relief capacity. He performed his duties consistently until the grief of a relationship breakdown, followed by a bout of depression, at which time he started using drugs. He was eventually dismissed from his employment and had no legitimate employment for about two years leading up to his arrest.

35. The report stated that during his four years on remand he was based at Silverwater for a year and a half with the opportunity to work in textiles.

36. The report stated that Tilley reported no significant medical history and that he was not on any prescription medication.

37. The report stated that at the time of his relationship breakup in 2012 or 2013 and his loss of employment, he attended an estimated seven sessions of counselling. However, his depressive symptoms continued until the onset of drug habits from 2013 to his arrest in 2015. The report recorded Tilley did not consider his drug use to be problematic because he enjoyed the effects and felt he was in control, while in the meantime it kept his depression in the background.

38. The report also recorded that Tilley recalled a gambling addiction from 2013 to 2015.

39. The sentencing judge noted that Tilley had a minor record of knowingly making a statement misleading and reckless in a material particular and importing a prohibited import.

40. The sentencing judge noted that Tilley did not give evidence but composed a letter in which he apologised and expressed condolences to Mr Vollmost’s family, especially his mother. The sentencing judge stated that the revelation of the whereabouts of Mr Vollmost’s body seemed to him to be “an essential or at least persuasive indicator of genuine remorse”. His Honour said that he did not accept that Tilley did not know where the body was located, and that the making of reparation for the loss caused by the killing ought to at least include the provision of that information if it is to be accepted as a genuine expression of remorse. His Honour stated that in the absence of that detail, he considered the extent to which Tilley is entitled to the benefit of remorse as a mitigating factor is correspondingly reduced.

41. The sentencing judge stated that Bentley was currently 29 years of age. His parents’ relationship broke down when he was about 14 years old but he has since been supported by his three sisters aged 30, 27 and 11. The sentencing judge stated that after completing Year 12 in 2008, Bentley worked fulltime until 2015 in property maintenance, labouring and in the care of captive animals, at one stage involving the supervision of up to six staff. He noted that Bentley had authored a publication on animal husbandry, has experience as a zoological photographer and hopes to study accounting and business management. The sentencing judge noted that a large series of supporting references were tendered.

42. The sentencing judge noted that Bentley gave evidence at the second trial but not at the sentencing proceedings. His Honour referred to the two undated letters written by Bentley which were tendered on his behalf. The sentencing judge described Bentley’s expressions of remorse as detailed and profound but stated he remained concerned that he did not feel able to indicate to Mr Vollmost’s family where his body was located or even to refer to that issue.

43. In relation to Thomas, the sentencing judge noted that he was born in February 1990 and was currently 29 years of age. His Honour referred to a report dated 3 October 2019 prepared by Dr Peter Ashkar, a forensic psychologist and clinical neuro-psychologist who took personal history from Thomas which recorded the following matters:

“Mr Thomas grew up in Sydney with five brothers and sisters (two with different fathers). His father was married to another woman when he was born and his mother raised him as a single parent living on welfare in a housing commission home with the help of his grandmother… His mother ‘had lots of boyfriends’, and struggled with drug addiction (alcohol, cannabis, heroin) and died two years ago (aged 52) with lung cancer and emphysema… He had regular contact with his father throughout his childhood and adolescent years until the age of 17 (when his father was incarcerated for drug manufacturing offences). He maintained occasional contact with his father in the years that followed.”

44. The report recorded that his birth and early development were normal to the best of his knowledge, although he described himself to be a thrill-seeker which sometimes got him into trouble at school. He did not have any learning difficulties and he described himself as having been an average student academically. He left school during Year 11 and pursued an apprenticeship in carpentry, but he became increasingly involved with drugs and partying at that time and failed to complete his apprenticeship. He nonetheless continued to work in the carpentry trade and was always employed.

45. The report recorded that Thomas has been involved in what Thomas described as an “on again off again” relationship with his current partner with whom he had a daughter who has epilepsy and learning difficulties. Thomas was recorded as saying of his partner “[s]he keeps me in check… [s]he keeps me in line… She’s perfect… [s]he doesn’t drink, doesn’t party.” He said he had a mix of friends, some of whom used drugs and some who did not, and that other than his co-offenders he had no history of ongoing involvement or affiliation with anti-social or criminal peers.

46. The report recorded that Thomas had a history of heavy alcohol, cocaine and benzodiazepine use. It recorded that Thomas began using alcohol at the age of 16 and regularly used Ecstasy in social situations between the ages of 16 and his early 20’s, but reported no use since that time, although he used cocaine in the years that followed until his arrest.

47. The report noted that Thomas had no medical or psychiatric history of note. It did not report any symptoms of trauma following his involvement in the subject offences.

48. The sentencing judge noted that Thomas did not give evidence at any time, either during the trials or the sentencing proceedings, but wrote a letter to the Court which was tendered in the proceedings. His Honour stated that in much the same way as his co-offenders, Thomas’ expressions of remorse in that letter are clearly articulated. However, he stated that he did not accept that Thomas did not know what happened to Mr Vollmost’s body, and his failure even to refer to that topic and failure to disclose the whereabouts of Mr Vollmost’s remains significantly derogates from the force of his words otherwise apparent in the literal expression of remorse.

49. The sentencing judge noted that Thomas came from a very disadvantaged background, having been born when his mother had been at the time a long-term drug addict. His Honour noted that Thomas was raised in Housing Commission at the poverty level, with his father incarcerated for drug manufacture for 10 years when he was a teenager. His Honour noted that Thomas spent time in rehabilitation facilities with his mother and siblings and has been surrounded by drugs and drug addiction his whole life.

50. The sentencing judge also noted that Thomas had a seven-year-old daughter who was three years old when he was taken into custody, and that their separation has been extremely difficult for both of them. His Honour noted that the daughter suffers from epilepsy and heat seizures and that meant she was hospitalised frequently. His Honour further noted that the daughter’s separation from her father has resulted in the need for counselling, despite a young age.

51. The sentencing judge noted that Thomas had a very limited criminal history, being a single conviction for possession of a prohibited weapon for which he was fined. His Honour noted that Thomas had been in custody for over four years in a high security prison on remand at Long Bay and has had only two internal cautions and one punishment for possession of a prohibited good.

52. The sentencing judge noted that what he described as two tragic events had occurred during the four years that Thomas had been in prison. He referred in that context to the death of his mother and his grandmother, and his inability to attend their funerals.

53. The sentencing judge noted that Davies was born in March 1990 and was currently 29 years of age. Davies also tendered a psychological report prepared by Mr Machlin which was dated 14 October 2019.

54. The report noted that Davies stated that he was born in Sydney and raised from age five in Dorrigo where his father still runs a recycling centre. It noted that Davies said that both his parents were heavy drinkers, they both gambled, and his mother had a marijuana habit. The report noted that Davies stated they would fight “whenever they were together”, attributing the violence in the most part to his mother who would initiate attacks when his father was asleep and would persist in her attacks fuelled by long-held grudges.

55. The report noted that the family returned to Sydney for a year when Davies was nine, at a time when two grandparents were terminally ill, and then returned to Dorrigo. Davies’ parents separated when he was 12 and he remained in Dorrigo with his father.

56. The report noted that at age 15 he left for Sydney to stay with his elder half-brother with whom he had a close relationship. He stated that at the time he was doing a plumbing apprenticeship. The report stated that Davies remained on good terms with his father in Dorrigo but had not maintained a close relationship with his mother.

57. The report recorded that Davies attended a small school in Dorrigo where he recalled chronic social and academic struggles. Davies described to Mr Machlin an early memory of a female teacher who used to touch him sexually while giving inappropriate advice about future relationships. Davies also stated that he was bullied for his height, being extremely tall in primary school, as well as because of his passive nature. He stated that he did not reach his potential at school and was always in the lower academic stream. However, when he moved to Sydney at age 15, he did a plumbing apprenticeship without impediment and held solid employment in the industry over the following years. The report stated that in the last year before his arrest he was unemployed for six months during a time of severe drug abuse, although he recovered partly out of a need to create a cash flow for his partner, and was self-employed for the last six months.

58. The report recorded that Davies was in a four-year relationship up to 2013 with a half-sister of one of the co-offenders, and that he was badly affected by the breakup of that relationship. It was reported that he then formed a relationship with a woman named Sienna who had similar anxiety problems to his, but several years into his remand the relationship was no longer sustainable.

59. Davies told Mr Machlin that he recalled having booked psychotherapeutic appointments on more than one occasion after his relationship breakup, and failing to attend due to his anxiety and the daunting prospect of addressing life’s problems. Davies relied on pills at times of high anxiety and would carry a bottle of Xanax with him wherever he went. The report also noted that he used anti-depressants for a number of years and was currently on prescriptions of Sertraline and Endep, both of which are used in the treatment of depression and anxiety.

60. The report recorded that in his late teens and early adult years Davies used alcohol, marijuana and ecstasy in varying amounts, often heavily. His habits increased substantially after the relationship breakup in 2013 and he became addicted to cocaine. He used ice intermittently and spent his savings and a sum of money that his father had given him towards a deposit on a property. The report stated that the breakup, his depleted finances and his eventual unemployment were sources of increasing anxiety and depression, and he became reliant on Xanax to manage acute anxiety.

61. The sentencing judge referred to the evidence of Davies expressing remorse to which I have referred at [16] above. His Honour stated that the expressions of remorse are “necessarily tied” to the question of the disposal of the body and whether or not he knew where it was now located. The sentencing judge stated that his evidence tacitly reflected the fact that he recognised the uncontroversial proposition that the genuineness of his expressions of remorse would be in question if it were otherwise thought he was withholding information about that issue. His Honour stated (as I have indicated at [20] and [21] above) that he rejected the evidence that Mr Vollmost’s body was taken to the scrap metal yard and left there, stating that it followed he did not accept that Davies did not know where his body was. The sentencing judge stated that he did not accept Davies’ apology to Mr Vollmost’s mother that he was unable to provide her with the location of her son’s remains.

62. Referring to s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act), the sentencing judge stated that the words used by Davies literally accepted responsibility for his actions and literally acknowledged the injury caused as a result. However, his Honour stated that he rejected that evidence as disingenuous having regard to his view that Davies and his co-offenders knew where Mr Vollmost’s body was but would not say.

63. The sentencing judge referred to victim impact statements by Mr Vollmost’s mother, brother and sister which were read to the Court. He stated that he had regard to those statements for the purpose of understanding the effect of Mr Vollmost’s death upon members of his family.

44. In dealing with the objective seriousness of the offence, the sentencing judge stated that Mr Vollmost was killed as a result of what appeared to be a “turf war” between competing players in the supply of drugs in the South Windsor area of Sydney. His Honour stated that even if the basis of the applicants’ pleas of guilty forecloses the conclusion that Mr Vollmost’s death was planned, it remained open to him to find that the events that preceded his death were the result of a “concerted and combined effort on the part of all offenders.” His Honour referred again to the circumstances leading up to the attack contained in the agreed statement of facts.

45. The sentencing judge referred to the contention that the assault upon Mr Vollmost was impulsive and took place in the heat of the moment. His Honour submitted that that submission needed to be considered in light of the circumstances which revealed that the applicants followed Mr Vollmost to his home in what was clearly a dangerous and relatively prolonged pursuit through the streets of South Windsor. His Honour stated that his clear impression from the CCTV footage was that the offenders went to Mr Vollmost’s home with the intention of assaulting him. His Honour stated that the assault upon Mr Vollmost was not a surprise to the applicants and, judging by the frantic and panicky way in which he sought to escape from them, it would not appear to have been a surprise to Mr Vollmost. His Honour stated that in that context it would be a serious mischaracterisation of what occurred to suggest that it happened without forethought, and that it was clear to him that the applicants did not go to Mr Vollmost’s property simply to have a conversation with him as some evidence led at the trial attempted to suggest.

46. The sentencing judge stated that he did not consider it possible meaningfully to give effect to the discrete role of the offenders in the execution of their joint endeavours. His Honour stated that each offender contributed to the execution of the joint venture in a substantial way. The sentencing judge stated that he was unable to find beyond reasonable doubt that Mr Vollmost was struck by the extendable baton. However, his Honour reiterated his view that the manslaughter offence was a very serious example of manslaughter by unlawful and dangerous act and was above the midrange of objective seriousness for offences of this type.

47. In dealing with the offence of unlawfully disposing of a corpse the sentencing judge stated that he was mindful of his conclusion that the offenders’ failure to reveal the whereabouts of Mr Vollmost’s body disentitled them to the full benefit of their otherwise apparent expressions of remorse. His Honour stated, however, it would be an error to magnify the seriousness of the unlawful disposal of corpse offence by reference to an absence of remorse. In that context he made the following comments:

“That is because that issue is to be distinguished from a different issue, which is the extent to which the fact of the offenders’ failure to disclose the location of Mr Vollmost’s body increases the seriousness of that offence: the presence or absence of remorse says nothing about objective seriousness.” (Emphasis in original.)

68. The sentencing judge expressed the view that Mr Vollmost’s body was never likely to be recovered and that the applicants’ actions in so disposing of it correspondingly increased the level of objective seriousness. His Honour also stated that the disposal of the body was “associated with an attempt to avoid detection and responsibility for the death.” His Honour then quoted the following passage by Jordan CJ in R v Davis (1942) 42 SR (NSW) 263 at 265 (“Davis”): “Such conduct is an offence because it causes public mischief by its tendency to obstruct the course of justice.” However, his Honour stated that whilst that consideration applies in the present circumstances, it is to some extent a factor of limited significance as the applicants were otherwise promptly apprehended despite the absence of Mr Vollmost’s body. His Honour stated that he specifically declined to find or infer that the discovery of the body would have conclusively demonstrated that the offenders were guilty of a different or more serious offence or that it would have meant their pleas of guilty to the manslaughter offence would not have been accepted. The sentencing judge concluded in those circumstances that but for the fact that Mr Vollmost’s body has not been recovered, the present offence would fall within the midrange of objective seriousness for an offence of this nature. His Honour stated however, that the present and likely permanent absence of the body necessarily elevates the offence well above the middle of the range and is a very serious one of its kind.

69. In relation to the drug offences, the sentencing judge stated that it was somewhat artificial to attempt to dissect and examine the individual characteristics of the separate supply offences charged against each applicant in order to attempt to identify different levels of criminality. His Honour stated that the reality appeared to him to be that all of the applicants were in the same business together doing much of the same work supplying illegal drugs in various quantities from time to time to the same community. His Honour stated that although the quantity of drugs was not identical, all of the applicants occupied a similar role in a flat command structure and to differentiate their roles, criminality and moral culpability would be “specious, patently artificial and disingenuous.” His Honour noted Bentley’s submission that it was his conduct that should be considered and not the applicants as a group. His Honour accepted that submission but stated that, for the avoidance of doubt, it was his view that none of the other offenders had committed a supply offence more serious than that committed by Bentley.

70. The sentencing judge stated that he considered the drug offences to which all offenders separately pleaded guilty were below the midrange of objective seriousness.

71. The sentencing judge stated that each of the three offences is of a kind that attracts a notion of general deterrence. His Honour stated that the drug supply offences by definition were committed with an obvious degree of planning for financial gain, and the prospect of being apprehended and punished cannot be far from the mind from almost anyone who engages in the trade.

72. His Honour stated that the conceal corpse offence was demonstrably one that involved a conscious decision to take steps to dispose of Mr Vollmost’s body, stating that it was “neither an impetuous act nor an act that was committed without the possibility for time to reflect upon its significance.” His Honour stated that the manslaughter offence should also be denounced as a “frightening example of extra-judicial behaviour with tragic consequences.”

73. The sentencing judge stated that, however, he was satisfied having regard to his conclusions about prospects of rehabilitation that there is very little likelihood of reoffending generally and no measure or prospects that the offences concerned with Mr Vollmost’s death are ever likely to be replicated. His Honour stated that, as the applicants’ own statements and medical opinions have indicated, the avoidance of a return to drug use will be heavily dependent on professional assistance both in custody and following release on parole.

74. The sentencing judge stated that the prospects of rehabilitation of all of the applicants seemed to be reasonable.

75. Dealing with totality, accumulation and concurrence his Honour noted that he provided for the conceal corpse offence to run concurrently with the commercial supply sentence for a period of one year, and for the manslaughter sentence to run concurrently with the conceal corpse offence for a period of one year. His Honour stated that the second period was a recognition of the importance of the principle of totality whilst at the same time giving emphasis to the seriousness of the conceal corpse offence as a separate act of criminality.

76. As I mentioned earlier, the sentencing judge indicated a discount of 10 per cent for the plea of guilty to manslaughter, 20 per cent in respect of the drug offences, and 25 per cent in respect of the concealment of a corpse.

77. At the conclusion of the sentencing judgment the sentencing judge returned to the question of remorse. His Honour stated that he acknowledged the respective expressions of remorse but remained of the view that the extent to which they were entitled to the benefit of these expressions was tempered by the fact that the applicants had not revealed the whereabouts of the body in circumstances where he had found that the applicants knew where it was.

78. The sentencing judge stated that he had varied the statutory ratio to a “moderate” extent to take account the fact that the offenders all have reasonable prospects of rehabilitation.

79. So far as the Form 1 offences were concerned, the sentencing judge indicated he would not have been inclined to impose custodial penalties for any of them if they had been separately charged, and that the effect of the Form 1 offences is not such as to provide a basis for sentencing Tilley, Bentley or Davies more severely than or differently from Thomas. His Honour stated that, in like fashion, he disregarded Thomas’ prior conviction as a basis for distinguishing his prospects of rehabilitation from theirs.

80. In those circumstances the sentencing judge imposed the sentences to which I have referred above.

The appeal

81. As can be seen from the grounds of appeal each of Bentley, Tilley and Thomas have asserted that the sentencing judge erred in sentencing on the basis that they knew where the body of the deceased was located but chose not to disclose its location. Although the grounds of appeal filed on behalf of Davies do not directly raise this issue, ground one of his notice of appeal, namely error in rejection of remorse in relation to the manslaughter offence, raises the same factual issue.

82. Each applicant also contended that the sentencing judge erred in failing to take cumulation of sentence into account as a special circumstance. The applicants also claimed that the sentences imposed were manifestly excessive. In addition the notice of appeal filed on behalf of Thomas raised a number of separate grounds.

83. In these circumstances it is convenient to deal first with the issue of whether the sentencing judge erred in his contention that the applicants knew where the deceased’s body was located but failed to disclose it; second with the issue of whether the sentencing judge failed to take cumulation of sentence into account as a special circumstance; third to deal with the separate grounds relied on by Thomas; and finally, to deal with the manifest excess ground.

Did the sentencing judge err in his determination that the applicants knew of the location of the deceased’s body but failed to disclose it and rejection of remorse – (Bentley ground 1, Tilley ground 1, Davies ground 1, Thomas grounds 1(b)(i) 2(a)(i))

The submissions

The applicants

a   Davies

84. In written submissions filed on behalf of Davies, reference was made to the sentencing judge’s conclusion on the question of remorse which I have set out at [61] above. It was first submitted that in the circumstance of the offences remorse as such should not have been considered as a single issue defined by the rejection of the applicant’s evidence of the disposal of the body. It was submitted that “in unpacking this finding” it was to be noted there was no alternative evidence as to where the body was placed, the evidence from the previous trial was not as definitive as stated by the sentencing judge (see [25] above), and the rejection of the applicant’s account was not a circumstance which operated to exclude consideration of remorse overall.

85. It was submitted that the sentencing judge, in rejecting Davies’ evidence, misstated Davies’ evidence at his first trial when he stated that Davies’ evidence at that trial was that the car parts were put into a crusher together with a toolbox containing Mr Vollmost’s body. A significant proportion of his evidence at that trial was set out in the written submissions. Of relevance were these questions and answers:

“Q.   And where did you physically put it in the scrap metal yard?

A.   There was a whole pile of scrap metal, but there was a car that had been stripped that was ready to be, it was walls and walls of cars that had been crushed. This was going to be crushed, I’m guessing as soon as it had been filled with smaller parts of scrap metal.

…

Q.   What happened to the tool box that had Mr Vollmost’s body in it?

A.   Put into the back of the ute.

Q.   Did you return to the scrap metal yard?

A.   We did.

Q.   What happened to the contents of that load?

A.   The tool box was placed into the back of a car and all the scrap metal that we had was put on top of it or within that vicinity.

…

Q.   After the second trip, or it might be the third to the scrap metal yard, at the time you left, where were the car parts and the tool box?

A.   When I left?

Q.   Yes? The last time?

A.   There was a machine literally pressing down on the roof as I was about to leave.

…

Q.   Where you put Mr Vollmost’s dead body in a tool box, where was it?

A.   It must have been in the trailer. It would make no sense for it to be in the back of the ute.

Q.   Why?

A.   Because we wanted to get rid of it discreetly.

Q.   Two days ago you gave evidence you put it in the back of the ute. Are you changing that evidence?

A.   I am changing that evidence, yes.

…

Q.   And you say that you covered it in scrap metal; is that right?

A.   I reversed the trailer in as far as I could, which was between the scrap metal pole and the cars. Tilley and I placed the box in the back of it and we covered it in with the inner guards and other parts of metal from the car, yes.

…

Q.   What happened to the car?

A.   It was partially full of metal already, bits and pieces of metal. A machine drove over to it and pressed down on the roof.

Q.   Did you give evidence that you thought the car was going to be crushed?

A.   I believe so.

Q.   What sort of machine, can you describe the machine that you’re talking about?

A.   I think it was a forklift.

Q.   You believe it was a forklift?

A.   Forklift, yes.

Q.   You described in your evidence ‘there was a machine literally pressing down on the roof as I was about to leave’?

A.   That’s correct, yes.

Q.   You were describing some sort of crushing machine pushing down on the roof as you were about to leave, weren’t you?

A.   I was not, no.

…

Q.   You weren’t describing a forklift when you gave your evidence two days ago, were you?

A.   I didn’t go into any great detail about it.

…

Q.   When you described in your evidence, ‘There was a machine literally pressing down on the roof as I was about to leave,’ you were not talking about a forklift, were you?

A.   I was, yes.”

He was then referred to his earlier evidence to the effect “[t]here was a machine literally pressing down on the roof as I was about to leave” and asked the following questions:

“Q.   What I suggest to you is, when you gave your evidence two days ago, and you can agree or disagree with me, you were trying to suggest that you left his body in the chest at a time when a crushing machine was coming down at that very moment, that is what you were trying to suggest in your evidence, wasn’t it?

A.   I don’t believe that is how I said it.

Q.   Is that what you meant to suggest, to convey to the jury?

A.   I saw a forklift putting another car on top of it, which caused the pillars to collapse and after that I didn’t worry about it; the thought never crossed my mind again.

…

Q.   You became aware, after you gave your evidence, that there was a statement from the then proprietor of the scrap yard, indicating that there was no crushing machine at that scrap yard, didn’t you?

A.   The only person who has referred to crushing is you.

…

Q.   What I am suggesting to you is that when you gave evidence, you meant to suggest to the jury that there was a machine literally crushing down on the car containing Mr Vollmost’s body, obliterating it and the car, what do you say to that suggestion?

A.   There was a machine and it was a forklift.

Q.   I am suggesting to you that you then became aware, after your evidence, that a statement had be obtained by the Crown from the proprietor of that yard to the effect that there was no crushing down at that yard and so you have changed your version of events now, what do you say to that?

A.   That is incorrect.

Q.   You are making up this whole version of events about Mr Vollmost’s body being left at a scrap yard, aren’t you?

A.   I am not.

Q.   Let me ask you more about the trip to Dorrigo. The ute that you took to Dorrigo was Clark Brett’s ute?

A.   Yes.

…

Q.   You had the use of that ute?

A.   Yes.

…

Q.   You accept that you travelled up to Dorrigo, or the Dorrigo region, on 1 April, 2015 and returned the following morning?

A.   That’s correct, yes.

…

Q.   Mr Brett was not told at any time about his ute being cleaned in any way, do you accept that?

A.   I accept that, yes.

Q.   Are you sure about that? If you are unsure, say so?

A.   I mean, it is a common courtesy to clean a car after you use it.

…

Q.   You cleaned the ute out to get Mr Vollmost’s blood out of it, didn’t you?

A.   No.

Q.   You took Mr Vollmost up to the Dorrigo region and you buried him somewhere or otherwise disposed of him?

A.   No, I did not.

Q.   And you have made up this whole story about leaving a tool chest, box, at a scrap yard because you don’t want to say where he really is, isn’t that right?

A.   That is not correct.”

86. It was submitted on behalf of Davies that his evidence was not that he had initially said there was a crusher but rather that there was a machine that had pressed down on the wrecked car which contained the toolbox. It was submitted that the evidence at the trial and at the sentencing proceedings was consistent and that there was nothing to contradict it.

87. The submissions asserted that at the sentencing hearing the Crown submitted that the failure to disclose the whereabouts of the corpse was relevant to the objective criminality of the conceal corpse offence. I have set out the sentencing judge’s conclusion at [68] above. It is clear from what I have set out in that paragraph that what increased the objective criminality was the fact that the corpse was disposed of in such a way that it would not be recovered. That is correct whether or not Davies’ evidence is accepted.

88. It was also submitted on behalf of Davies that to the extent the sentencing judge concluded that the action of disposing of the body was associated with an attempt to avoid detection and responsibility for the death, the position was analogous to what was said in Pham v R [2010] NSWCCA 208 at [27], where it was stated that the failure to identify co-offenders was not relevant to remorse and that there were good and well-known reasons why participants in drug offences might display that reluctance. The present case is entirely different.

89. It was also submitted that the sentencing judge erred in rejecting remorse on an overarching basis relevant to both the conceal corpse offence and the manslaughter offence, notwithstanding the fact that Davies accepted responsibility for the killing and expressed remorse for the events which had occurred.

90. It was submitted that to completely reject remorse the sentencing judge had to conclude that Davies was not remorseful for the death, that he was not remorseful for concealing the corpse, that he was not remorseful for supplying the drugs and the other offences, and that all the applicants knew where the body was, the body was capable of being retrieved, and there was alternate evidence of its whereabouts. It was submitted that the only one of these matters which could be established was lack of remorse for concealing the corpse.

171. The written submissions pointed out that Thomas was the first to leave the premises where the assault took place, after which the vehicle proceeded to a property associated with Davies. It was contended that Thomas left shortly thereafter. In these circumstances it was submitted that Thomas’ culpability was significantly less.

b   The Crown

173. The Crown submitted that the circumstances of, and which offender participated in, the disposal of the body was not known. The Crown repeated that the submission that the applicant’s subjective knowledge of the location of the body was irrelevant to the objective gravity of the offence. It was submitted that the evidence did not permit a distinction to be drawn between the objective gravity of each offender.

Consideration

174. The same principles apply to this ground as apply to the previous ground.

175. Once again, Thomas did not directly challenge the finding that the offence was an objectively serious one, but rather submitted that his moral culpability was less than that of his co-offenders. As he was a party to the joint criminal enterprise, I do not think that his culpability was lessened by the fact that he was first into the car and did not place the body into it. Indeed, in this context it must be remembered that he drove the car which transported the body from Cox Street.

176. The difficulty facing Thomas on this ground is that whilst it appeared to be accepted that Davies, whether or not with someone else, disposed of the body, there was no other evidence as to what occurred to the body after it left Cox Street. In particular, there was no other evidence as to what steps if any the other applicants took in respect of its disposal. It follows that there was no basis for concluding that the moral culpability of Thomas was less than that of the other applicants.

177. This ground has not been made out.

Ground 1(c) – The sentencing judge erred with respect to the commercial drug supply count in failing to distinguish between the conduct of the applicant as opposed to that of the other offenders and thereby failed to identify the applicant’s lower level of culpability in relative terms on this count

The submissions

a   Thomas

178. In written submissions filed on behalf of Thomas, reference was made to the passage from the sentencing judgment to which I have referred at [69], but it was submitted that it was beyond argument that the supply offences were different offences involving vastly different quantities of drugs. It was noted that Tilley was described in the agreed statement of facts as an “up-line supplier” for the co-offenders, and whose offending involved double the amount of the drugs supplied. It was submitted that had proper consideration been given to the different roles of and different crimes committed by the applicants, the culpability of Thomas would be shown to be significantly less than that of the others.

179. It was submitted that it followed “more fundamentally” that, in respect of each count, had proper consideration been given to those different roles, the relative objective seriousness of the offending by Thomas on each count ought to have been characterised as lower than that of the other applicants.

180. At the hearing, counsel for Thomas submitted that there was nothing to prevent the sentencing judge from comparing the seriousness of the drug dealing by each applicant, and that this was something that the Crown had done at the sentencing hearing. He submitted that had this been done, the sentencing judge would have found that the culpability of Thomas was lower. He accepted that in the proceedings each applicant received an effective sentence of one year for quite significant drug dealing. He also agreed that at the hearing the Crown contended that the conduct of Tilley in respect to drug dealing was well above the midrange, that of Bentley about midrange, and that of Davies and Thomas within midrange. He accepted that the sentencing judge, in concluding that all drug offences were below midrange, rejected those submissions. Counsel for Thomas submitted that notwithstanding that, there had to be “some form of differentiation”.

b   The Crown

181. The Crown submitted that the complaint was “essentially one of weight.” It was submitted that the quantity of the drug supplied, whilst relevant, was not a determinative factor. It was submitted that Thomas supplied methylamphetamine to customers on a daily basis, unlike Tilley and Davies. The Crown noted that it was not disputed that Thomas, like all the other applicants, was motivated by greed.

Consideration

182. Once again, Thomas did not complain that the judge erred in concluding that the offence was below the midrange of objective seriousness for offences of this nature, and in imposing a relatively lenient sentence. Rather, he simply contended that the sentencing judge should have found that the seriousness of his offending was less serious than that of the other applicants. As I indicated at [166] above, the assessment of objective seriousness is classically a matter for the sentencing judge.

183. In the present case, the principal difference was the quantity of drugs with which Thomas dealt compared to that of the other applicants. Whilst the amount of methylamphetamine supplied by him was less than that supplied by Tilley and Bentley (but not Davies), the quantity supplied is not necessarily determinative of the objective seriousness of the offence: Wong v R (2001) 207 CLR 584; [2001] HCA 64 at [67]-[69]. Although Tilley sometimes sought out the methylamphetamine for the other applicants, what was said in pars (5)-(7) of the agreed statement of facts in respect of the drug offences (see [14] above) justified the conclusion of the sentencing judge that all offenders were in the “same business together doing much the same work supplying illegal drugs… to the same community” under a flat command structure. In these circumstances the sentencing judge did not err in not differentiating between the objective seriousness of each applicant’s drug offence.

184. It follows that this ground of appeal has not been made out.

Ground 2(b) – The sentencing judge erred in failing to give any proper weight to the principles in Bugmy

The submissions

a   Thomas

185. In written submissions it was submitted that Thomas came from a very disadvantaged background. It was noted that the judge accepted that fact. However, it was submitted that that did not lead to any distinction between his sentence and that of the other applicants. It was submitted that that must lead to the conclusion that the sentencing judge failed to give that proper weight in accordance with the principles in Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 (Bugmy).

b   The Crown

186. In its written submissions the Crown stated that the sentencing judge clearly took the background of Thomas into account, referring to that part of the sentencing judgment to which I have referred at [43]-[47] above. It was submitted that the submissions made on behalf of Thomas did not point to any error, noting that it was not submitted that there was any causal connection between the offending and the deprived background.

187. At the hearing the Crown accepted it was not necessary for there to be such a connection for the principles in Bugmy to apply.

188. In dealing with the suggestion that what was submitted was that if the Bugmy principle was really given weight Thomas would not have ended up with the same sentence, the Crown submitted that that was because, considered in terms of the overall range of factors, it did not itself require a different sentence. It was submitted that each of the applicants had varying degrees of trouble in their homes. It was also pointed out that the sentence for the drug offence was generous. The Crown submitted that even if it was more generous in respect of Tilley than in respect of the other offenders, that did not give rise to a justifiable sense of grievance.

189. The Crown submitted that the sentencing judge gave full weight to the profound childhood deprivation but, having done so, it remained open to him to conclude that it did not require a difference in the overall sentence compared to that of the other applicants.

Consideration

190. In sentencing Thomas, the sentencing judge expressly took into account that Thomas came from an extremely disadvantaged background. He set out Dr Ashkar’s report in detail (see [43] above) and expressly noted his disadvantaged background later in his judgment (see [49] above). It cannot be said that his Honour erred in failing to take the Bugmy principles into account. The real complaint is that the disadvantaged background was one of the factors which should have led to a lesser sentence being imposed on Thomas compared to that of the other applicants. This is the subject of ground three.

191. It follows that to the extent that this ground asserts that the Bugmy principles were not take into account, it has not been made out.

Ground 3 – Parity

The submissions

a   Thomas

192. It was submitted on behalf of Thomas that the difference in the objective seriousness of his offending and that of the other applicants, and the difference in his subjective circumstances, ought to have resulted in a different sentence. It was submitted that that was supported by the numerous charges on the Form 1s to be taken into account in respect of the other applicants.

193. At the hearing, counsel for Thomas described his client as having the “stronger” objective considerations and subjective circumstances, and that there ought to have been some differential.

b   The Crown

194. The Crown submitted that appellate intervention on the ground of parity is warranted in the presence of marked and unjustified disparity between co-offenders, or where the difference in sentences is manifestly excessive in the sense that it is unreasonable or plainly unjust. Referring to Lloyd v R [2017] NSWCCA 303, it was submitted that the Court would be cautious in finding a justifiable sense of grievance where the sentencing judge was fully aware of the co-offender’s circumstances.

195. The Crown submitted that in the circumstances where the sentencing judge stated that he would not have imposed a custodial penalty on the Form 1 offences, that did not give rise to a basis for disparity. It was noted that the sentences for the drug offences were “very lenient.” It was noted that Bentley and Davies, unlike Thomas and Tilley, had no criminal antecedents. It was also noted that whilst Thomas had a deprived background, the sentencing judge also took into account the upbringing of Davies and Tilley.

196. It was submitted that in those circumstances, the disparity was not so marked as to give rise to a justifiable sense of grievance.

Consideration

197. Once again the principles are not in dispute. In Lowe v R (1984) 154 CLR 606; [1984] HCA 46 (Lowe), Gibbs CJ pointed out at 606 that an appellate court will interfere when the disparity between sentences is such as to give rise to a justifiable sense of grievance or, in other words, to give the appearance that justice has not been done. In Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, Dawson and Gaudron JJ stated at 301 that the parity principle as expressed in Lowe recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a justifiable sense of grievance, and that if there was, the sentence should be reduced notwithstanding it is otherwise appropriate and within the permissible range of sentencing options.

198. In Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49, the plurality summarised the principle in the following terms at [32]:

“[32]   A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error. It is also correct, as Mason J said in Lowe, that logic and reality combine to favour the proposition that discrepancy is a ground for intervention in itself. Unjustifiable disparity is an infringement of the equal justice norm. It is appealable error, although it may not always lead to an appeal being allowed. If an appeal is allowed on the ground of disparity, a court of criminal appeal in resentencing is not required to achieve identity of punishment. It must have regard to the sentence imposed on the co-offender and give it appropriate weight. In such a case, an appeal to this Court on the question whether a disparity identified in a court of criminal appeal was unjustifiable and called for intervention by that court would also involve review of a qualitative and discretionary judgment.”

199. It is important to emphasise that what is required is a marked disparity which, objectively speaking, would give rise to a justifiable sense of grievance. The case for Thomas on this ground was succinctly put by his counsel in the following terms, that Thomas had “stronger objective and subjective considerations” and that there ought to have been some differentiation.

200. In dealing with the other separate grounds of appeal raised by Thomas, I have demonstrated that there was no real difference in the moral culpability of Thomas for the offences committed pursuant to the joint criminal enterprise, and in the objective seriousness and moral culpability of the drug offences. So far as the subjective circumstances are concerned, it is true that Thomas had a powerful subjective case. However, the same may be said to a lesser extent of Tilley (see in particular [30]-[33] above), of Davies (see [54]-[57] above), and to a lesser extent again of Bentley (see [41] above). The difference in the subjective circumstances does not in my mind give rise to such a marked disparity to justify interference by this Court.

201. Nor do I think that the Form 1 offences which Bentley, Davies and Tilley requested to be taken into account in sentencing for the drug offences affect the position. It was not suggested that the sentencing judge was incorrect in concluding that the nature of the offences on the Form 1 would not warrant an increase in the term of imprisonment than he would otherwise impose. In these circumstances, the fact that these offences are included on the Form 1s for those applicants in contrast to Thomas would not in my opinion give rise to such a marked disparity to warrant a justifiable sense of grievance.

202. In these circumstances, this ground of appeal has not been made out.

Manslaughter and conceal corpse offence sentences were manifestly excessive (Bentley ground 2, Davies ground 3, Thomas ground 5, Tilley ground 2)

203. Although because of my conclusion on the accumulation ground it is necessary to resentence the applicants, the submissions on the manifest excess ground are relevant in considering that issue.

The submissions

a   The applicants

204. Each of Bentley, Thomas and Tilley adopted the submissions made on behalf of Davies.

205. In written submissions on behalf of Davies it was contended that when the manslaughter and conceal corpse offence were considered in isolation, the sentence was 14 years with a 10 year non-parole period.

206. The submissions referred to R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 (Forbes) where it was noted that the upper end of head sentences for manslaughter was 10 to 12 years.

207. It was submitted that the sentencing judge found the manslaughter to be a serious offence but not at the top of the range of objective criminality. The submissions referred to a schedule of manslaughter offences compiled by Wilson J in R v Merrick (No 5) [2016] NSWSC 661 of which it was stated “bode” for sentence in the range of five and a half to nine years following a plea of guilty. The submissions also referred to R v Bryant [1999] NSWCCA 181 in which a total sentence of 10 years was described as being at the top of the range for sentences for this offence.

208. It was submitted that guidance as to the appropriate sentence for the offence of concealing a corpse could be found in s 81 of the Crimes Act 1900 (NSW), s 35(2) of the Coroners Act 2009 (NSW) and s 317 of the Crimes Act.

209. However, it was submitted that the lack of authority in the area pointed to the pragmatic consideration that it was more likely to be part of the primary offence, be it murder or manslaughter. It was submitted that the cumulated sentence sat well above the range for manslaughter or accessory offences where there is a roughly consistent factual matrix in terms of a body being disposed of even where it was charged as an accessory to a murder or manslaughter offence.

b   The Crown

210. In written submissions the Crown submitted that Forbes was not a useful comparator. The Crown pointed to the fact that Hall J in that case questioned why the upper end of sentences considered appropriate was half the maximum penalty and concluded that the analysis which he carried out provided no obvious trend or discernible range. The Crown pointed out that the analysis in that case was 15 years old and eight of the nine matters considered took place in the context of an intoxicated or pub “brawl”.

211. It was submitted that the manslaughter of Mr Vollmost was found to fall above the midrange of objective seriousness. The Crown pointed out that the unlawful and dangerous act was not impulsive, and that the assault was not linked to one blow but rather there were three blows, two of them being delivered whilst Mr Vollmost was already wounded, crouched down and kneeling.

212. The Crown referred to the decision of Wilson J in R v Aljubouri [2019] NSWSC 180 where her Honour noted that the conceal corpse offence lacked the guidance of a statutory offence, although the offence of tampering with evidence contrary to s 317 of the Crimes Act , with a maximum penalty of 10 years imprisonment, was perhaps the closest analogy. Nevertheless, Wilson J stated that it did not impact the full criminality of concealing the body of a human being.

213. It was noted that the conceal corpse offence was found to fall above the midrange of objective seriousness. It was submitted that it was not committed in the heat of the moment, and that it was associated with an attempt to avoid detection.

214. So far as accumulation was concerned, the Crown submitted that in practical terms the conceal corpse offence only increased the effective non-parole period by one year, which was submitted to be “far from excessive”. It was contended that the concealment caused harm to Mr Vollmost’s family in that they were being denied the dignity of laying him to rest, and that it had the tendency to obstruct the administration of justice. It was submitted that in those circumstances the criminality of the offence was not fully comprehended by the sentence for manslaughter.

Resentence

215. As I have indicated, apart from the necessity to adjust the statutory ratio to take account of the accumulation of sentences, I do not think that there was any error in the conclusion reached by the sentencing judge. In particular, his Honour did not err in his findings of the objective seriousness of the offences, the applicants’ respective moral culpability, the question of remorse, the manner in which he took into account the applicants’ various subjective circumstances, or the question of parity.

216. In his written submissions, Davies suggested that the upper range for manslaughter offences was in the vicinity of 10 years: see [207] above. That does not seem to me to take into account the fact that the maximum penalty is 25 years, nor the variety of circumstances in which manslaughter by unlawful and dangerous act could occur. As was pointed out in R v Lavender (2005) 222 CLR 67; [2005] HCA 37 at [22], of all serious offences, manslaughter attracts the widest range of possible sentences, such that the culpability of the offender may fall just short of that of a person guilty of murder or attract a nominal penalty. In the circumstances I do not think that the comparable sentences referred to in the cases upon which reliance was placed by Davies presents a correct range of sentences for offences of the nature of the one under consideration in the present case: see Hili v R (2010) 242 CLR 520; [2010] HCA 45 at [54].

215. The manslaughter offence in the present case is a most serious offence. In my opinion, the appropriate sentence after a discount of 10 per cent for a plea of guilty was that imposed by the sentencing judge, namely 12 years. However, as will be seen, I have adjusted the non-parole period to seven years to take account of the effect of accumulation.

216. Further, for the reasons given by the sentencing judge I agree that the appropriate sentence for the conceal corpse offence was a fixed term of three years. This was a serious offence having the capacity to obstruct the administration of justice, quite apart from the grief to Mr Vollmost’s family in being unable to lay the deceased to rest in a dignified fashion. Contrary to what was suggested in the submissions filed on behalf of Davies, the criminality was not subsumed in the manslaughter offence.

217. So far as the drug offences are concerned, it is appropriate to impose the same relatively lenient sentence as that imposed by the sentencing judge.

218. I have taken the applicants’ special circumstances into account in the same way as the sentencing judge but also allowed for the effect of the accumulation of the sentences. The overall non-parole period of 10 years reached as a result is the minimum period that the applicants must spend in custody having regard to all the circumstances of the offence: Power v R (1974) 131 CLR 623; [1974] HCA 26 at 628-629; Deakin v R (1984) 58 ALJR 367; [1984] HCA 31 at 367.

219. Thomas relied on resentence on the affidavit of Mr Simon Joyner. In reaching my conclusion, I have taken that part of the affidavit which was admitted into evidence into account. The affidavit refers to difficulties Thomas experienced in following his case management plan whilst on remand. That did not seem to me to warrant any decrease in the sentence I would otherwise impose.

220. The applicant also referred to Davies’ express concerns of the COVID pandemic and its effect on the prison population. However, an affidavit in response filed by the solicitor for the Crown sets out the steps the Corrective Services have taken to protect the prison population and states that there have been no confirmed cases of COVID-19 in that population. In these circumstances, it does not seem to me that the existence of the virus operates as a mitigating factor on sentence.

Conclusion

223. In the result I would make the following orders:

1. Grant the applicants leave to appeal.

2. Allow the appeal.

3. Quash the sentences imposed on each applicant and in lieu thereof impose the following sentences:

1. For the offence of supply commercial quantity of methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) taking into account in the cases of the appellants Bentley, Thomas and Tilley the offences on the Form 1 impose a sentence of a non-parole period of imprisonment of two years commencing on 3 September 2015 and expiring on 2 September 2017 with a balance of term of one year expiring on 2 September 2018.

2. For the offence of concealing a corpse impose a sentence of a fixed term of imprisonment of three years commencing on 3 September 2016 and expiring on 2 September 2019.

3. For the manslaughter of Brendan Vollmost on 31 March 2015 impose a sentence consisting of a non-parole period of imprisonment of seven years commencing on 3 September 2018 and expiring on 2 September 2025 with a balance of term of five years expiring on 2 September 2030.

224. N ADAMS J: I have had the advantage of reading the judgment of the Chief Justice in draft. I agree with the orders proposed by his Honour for the reasons provided by his Honour. I wish to make some additional comments as to why I am not satisfied that Mr Thomas’ claim of disparity is made out.

225. As for ground 1(a) relied upon by Mr Thomas, I agree with the Chief Justice for the reasons provided that it was open to the sentencing judge to make the same finding of culpability in relation to all of the applicants in execution of the joint criminal enterprise to assault the deceased. Although it is to be accepted that each of the offenders played different roles and the actual physical role ultimately played by Mr Thomas was less than his co-offenders, this was not, for example, an enterprise which had been planned by the other three co-offenders for some time and Mr Thomas joined at the last minute. Rather, each had their assigned role and Mr Thomas’ role was crucial to the enterprise.

226. As for ground 1(b)(ii) relied upon by Mr Thomas, I agree with the Chief Justice for the reasons provided that it was open to the sentencing judge to make the same finding of culpability for the conceal corpse offence in relation to each of the four co-offenders. I am satisfied that it was open to the sentencing judge to reject the evidence that the deceased’s body was disposed of at a scrap metal yard. All four applicants pleaded guilty to the disposal of the body, all had an interest in concealing the killing and there is no reliable evidence as to what happened to the body.

227. As for ground 1(c) relied upon by Mr Thomas, I agree with the Chief Justice for the reasons provided that it was open to the sentencing judge to make the same finding of culpability for the drug offences in relation to each of the four co-offenders. The drug charges were not brought in reliance upon principles of joint criminal enterprise, so questions of hierarchy are not pertinent. Although it is to be accepted that the amounts involved all differed, each applicant was directly involved to a similar extent.

228. Ground 2(b) relied upon by Mr Thomas contended that the sentencing judge erred in failing to “[G]ive any or proper weight to the principle enunciated in Bugmy.” In Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”), the High Court considered the relevance of an offender’s deprived background to offending as an adult and observed the following at [44] (footnote omitted):

“Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”

229. I recently considered the principles derived from Bugmy in Dungay v R [2020] NSWCCA 209. After considering recent decisions of this court (at [136]-[152]), I observed the following at [153] (Bell P and Davies J in agreement):

“Having regard to these principles, it seems to me that although the effects of childhood deprivation are to be given full weight in every sentencing decision, that does not mean that moral culpability must be reduced in every case. Full weight can be given to such a childhood in other ways as part of the process of instinctive synthesis. Although a causal link may not be required, it also seems to be that if such a link exists then inevitably there will be a reduction in an offender’s moral culpability: Kliendienst v R [2020] NSWCCA 98. On the other hand, the absence of such a link does not mean that the Court does not give full weight to a childhood of profound deprivation if that is established on the evidence.”

230. In Kliendienst v R [2020] NSWCCA 98 there was such a strong causal connection between the violent childhood and the violent offending that this court held that the sentencing judge had erred in not making a finding that the applicant’s moral culpability was reduced having regard to the Bugmy principles, even though there was no submission made in relation to them at the proceedings on sentence.

231. In the proceedings on sentence before the sentencing judge in relation to these four applicants there was no express reliance by Mr Thomas on the principles derived from Bugmy in either written or oral submissions, although his disadvantaged upbringing was discussed in the report of Dr Peter Ashkar, his psychiatrist, and in some of the letters tendered in his case.

232. As the Chief Justice observed at [190]-[191], the sentencing judge expressly considered that Mr Thomas had a very disadvantaged background and he extracted the report of Dr Ashkar outlining this at [38] of his reasons. Then, at [41] of the sentencing judge’s reasons, he observed the following:

“Mr Thomas comes from a very disadvantaged background, having been born when his mother had been at the time a long-term drug addict. He was raised in Housing Commission at the poverty level, with his father incarcerated for drug manufacture for 10 years when he was a teenager. He spent time in rehabilitation facilities with his mother and siblings, and has been surrounded by drugs and drug addiction his whole life.”

233. The nub of Mr Thomas’ complaint under grounds 2(b) and 3 is that the sentencing judge must have erred in his application of the Bugmy principles because he received the same sentence as his co-offenders even though his culpability was lower, and his subjective case was better. In other words, he should have received a lower sentence because his Honour should have made a finding that his moral culpability, and thus his sentence, was reduced due to his deprived childhood. But the application of the parity principle (as explained by the Chief Justice) is never a question of mathematical equivalence. Nor was it ever submitted to the sentencing judge that Mr Thomas’ moral culpability should be assessed as lower than the other offenders.

234. The four applicants were sentenced at the same time by the same judge who was clearly aware of the similarities and differences as between the four applicants, which were not significant. His Honour imposed the same sentences on all four applicants and explained his reasons for doing so. Given that I am satisfied that error is established on grounds asserting error on the question of cumulation of sentences as a special circumstance, Mr Thomas’ aggregate sentence will be reduced such that he will receive an aggregate non-parole period of 10 years imprisonment for a serious manslaughter (maximum penalty 25 years imprisonment), concealing a corpse (common law) and the commercial supply of methylamphetamine (maximum penalty of 20 years imprisonment, standard non-parole period of 10 years). This is a lenient sentence given the scope of the criminality involved. In these circumstances I cannot be satisfied that his Honour has erred in not reducing Mr Thomas’ sentence further, especially having regard to the question of proportionality.

235. IERACE J: I agree with the Chief Justice. I also agree with the additional comments of N Adams J.

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Decision last updated: 26 February 2021