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

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

[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? (i) 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. (ii) 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. (iii) 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. (iv) 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? (i) 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. (ii) 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. (iii) 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). (iv) 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? (i) 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). (ii) 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"

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."

1. 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

1. 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."

The evidence surrounding the disposal of the body

1. 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.
2. 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."
3. 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

1. 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.
2. 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.
3. 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.
4. The sentencing judge stated "I reject that evidence completely."
5. 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.

The sentencing judgment

1. The sentencing judge, after setting out the agreed facts in relation to the offences, dealt with subjective considerations relevant to each offender.
2. In relation to Tilley he noted he was born in October 1981 and was the eldest of the offenders.
3. 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:
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.

The appeal

1. 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.
2. 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.
3. 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))

a Davies

1. 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.
2. 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."

b Bentley

1. The written submissions filed on behalf of Bentley adopted the written submissions of Davies and Tilley on this ground.
2. At the hearing, counsel for Bentley submitted that the sentencing judge's finding that the applicant knew where the body was disposed of was treated by the sentencing judge as a factor which increased the objective seriousness of the offence and reduced the weight given to remorse. She submitted that as it was treated as a matter increasing the objective seriousness, the sentencing judge had to be satisfied beyond reasonable doubt that Bentley knew the location of the body. She submitted that there was no evidence to suggest this. She emphasised that it was not the Crown case that Bentley was a party to the disposal of the body.
3. Counsel for Bentley submitted that the sentencing judge's finding on this issue affected his Honour's conclusion on the issue of remorse in respect of all of the offences and, in that way, had an overall effect on the sentence.

c Tilley

1. In written submissions filed on behalf of Tilley, the written submissions filed on behalf of Davies were adopted. Further, it was submitted that if the evidence of Davies was rejected there was no basis to make a finding of who disposed of the body or the circumstances of its disposal. It was also submitted that whilst it was possible that the applicants knew of the location, it was also possible that one or more of them did not and it was therefore not possible to find beyond reasonable doubt that Tilley knew of its location, so as to increase the objective gravity of the offence.
2. At the hearing, senior counsel for Tilley submitted that what was covered by the plea of guilty to the offence of knowingly concealing a corpse was that Tilley was party to an agreement to conceal it, such that each applicant was criminally liable irrespective of who actually carried out the concealment. Referring to that portion of the sentencing judgment which I have set out at [68] above, senior counsel for Tilley submitted that the effect of the sentencing judge's conclusion that the likely absence of Mr Vollmost's body elevated the offence from above midrange to a very serious one of its kind involved a finding that the applicants knew where the body was and failed to disclose it. He submitted that that had to be established beyond reasonable doubt.
3. Senior counsel for Tilley also submitted that the sentencing judge simply rejected the whole of Davies' evidence, including the fact that Tilley was present when Davies disposed of the body. He submitted that whilst there may be a different test on the question of remorse, it was not open to the judge to be satisfied beyond reasonable doubt that Tilley was present and knew the location of the disposal of the body.

d Thomas

1. In written submissions filed on behalf of Thomas it was submitted without elaboration that the sentencing judge erred in rejecting the evidence given by Davies. It was submitted "more fundamentally" that it had never been suggested that Thomas was involved in the disposal of the body beyond its immediate removal from the Cox Street premises. It was submitted that the evidence of Davies that he did not tell the other applicants the whereabouts of the body was not challenged in cross-examination, and in those circumstances the sentencing judge erred in finding it was inherently improbable that the other applicants were not aware of its whereabouts.
2. It was submitted that in these circumstances the sentencing judge erred in failing to properly distinguish between the different roles separately played by each applicant. In particular, it was pointed out that Thomas was the first to leave the premises. It was submitted that Thomas' culpability should have been held to have been significantly less than that of the other applicants.
3. At the hearing, counsel for Thomas submitted that, even when looked at solely from the perception of remorse as distinct from objective seriousness, the finding that Thomas knew of the whereabouts of the body and had failed to disclose it was an adverse factual finding against Thomas which needed to be established beyond reasonable doubt.
4. In that context, counsel for Tilley submitted that the Crown was incorrect in submitting that the evidence of Davies, namely that he did not tell the others of the whereabouts of the body, was not challenged. He accepted, however, that a fair reading of the cross-examination showed that the Crown was challenging everything that Davies was saying and there was no question of fairness involved. He also accepted by his plea of guilty that Thomas admitted to being a party to what was a successful concealment, and the success increased its objective seriousness.

e The Crown

1. The Crown submitted that it was acknowledged by counsel for Davies in the sentencing proceedings that in order for Davies' account to be accepted, the sentencing judge would need to accept that Davies was concerned with dropping off the drugs in the car trip to Dorrigo before he took steps to deal with the body, though the latter involved far more serious criminality.
2. The Crown submitted that the finding that all the applicants knew but would not disclose what became of Mr Vollmost's body was well open as a matter of inference arising from the agreed facts, the CCTV footage and the various expressions of remorse relied upon by each applicant.
3. The Crown submitted that, in addition to the advantage enjoyed by the sentencing judge in seeing Davies give his evidence, there were clear obstacles to accepting it. It was submitted that Davies' evidence was given at a late stage in the sentencing hearing after two trials; it required acceptance of an implausible scenario where Davies travelled to Dorrigo in a ute (subsequently cleaned with ammonia) to dispose of drugs before dropping off the body in a scrap yard. It was submitted that the evidence was internally inconsistent about a critical and presumably straightforward matter of whether Mr Vollmost's body had been in the ute before it had been cleaned with ammonia.
4. The Crown submitted that the agreed facts, together with the CCTV footage, showed the applicants to be a close-knit group acting as a coherent unit in carrying out the joint criminal enterprise. It was submitted that clearly each offender sought to avoid apprehension for an unlawful death, and it could be inferred, especially given the closeness of the applicants, that each would take an active interest in the disposal of the body.
5. It was submitted that the submissions filed on behalf of the various applicants were incorrect in asserting that the Crown did not challenge Davies' evidence that he did not discuss the disposal of the body with the co-offenders. The Crown referred in that context to Davies' evidence in cross-examination that Tilley was with him and that the applicants had agreed that "whatever happened next we would never talk about it" (see [17] above).
6. It was also submitted that the cogency of the conclusion by the sentencing judge was not diminished by the letters tendered by Bentley, Thomas and Tilley, which did not touch upon the subject of what happened to the body, let alone provide some indication that they had no knowledge about it.

Consideration

1. These grounds of appeal as developed in the submissions raise a number of overlapping issues. The first is whether the sentencing judge erred in determining whether the applicants were aware of the location at which the body of Mr Vollmost was disposed of. That involves a subsidiary question of whether the Crown bore the onus of proving beyond reasonable doubt that each of the applicants were aware of the body's location but chose not to reveal it, or whether the onus was on the applicants in demonstrating remorse to establish on the balance of probabilities that they did not know of the whereabouts of the body.
2. The second issue which was raised by Thomas is that, regardless of the position so far as the manslaughter and conceal corpse offences are concerned, the sentencing judge erred in concluding that no account should be taken of remorse for the drug offences.
3. Before dealing with these issues it is important to have regard to two matters. The first of these is the manner in which the sentencing judge was said to have erred in dealing with the fact that the location of the body was unknown and second, the manner in which his Honour in fact dealt with the question of remorse.
4. So far as the first matter is concerned, a fair reading of the judgment demonstrates in my opinion that 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. In my opinion, that is clear from the passage of the judgment of the sentencing judge to which I have referred at [67] above. It should be noted that in the paragraph immediately following the one to which I have referred (that is, at [68] above), the sentencing judge stated that the fact that the body was never likely to be recovered and the applicants' actions of disposing of it in that way increased the objective seriousness of the offence.
5. The approach of the sentencing judge was consistent with authority. In Davis Jordan CJ, with whom the other members of the Court agreed, stated the elements of the offence in the following terms at 265: "In my opinion, it follows from these authorities that it is a misdemeanour at common law for anyone (1) knowingly to bury or otherwise conceal, or to destroy or mutilate, a corpse, if (2) he has knowledge of circumstances suggesting that death has resulted from some abnormal cause, and (3) the way in which he so deals with the corpse in fact operates, or is likely, to prevent or prejudice inquiry by the proper authorities. Such conduct is an offence because it causes public mischief by its tendency to obstruct the course of justice."

Did the sentencing judge err in failing to take into account cumulation of sentence as a special circumstance (Bentley ground 3, Davies ground 2, Thomas ground 4, Tilley ground 3)

a Tilley

1. In written submissions filed on behalf of Tilley it was submitted that the sentencing judge was correct in his conclusion that the statutory ratio for the non-parole period could be varied to a moderate extent to take into account the fact that the offenders all had reasonable prospects of rehabilitation and were all in custody for the first time.
2. However, it was submitted that the sentencing judge made no reference to cumulation of sentences as a special circumstance, and that it should be inferred that it was not taken into account. It was noted that the finding of special circumstance with respect to the sentences for manslaughter and drug supply, made pursuant to s 44(2) of the Sentencing Procedure Act, resulted in a ratio of 66.7 per cent which was described as moderate, but once cumulation was taken into account, the overall ratio was 73.3 per cent.
3. It was submitted that it was well established that partial cumulation can be a special circumstance and that in dealing with non-parole periods it was appropriate to consider the overall non-parole period. It was submitted that an absence of expressed reasons for imposing an overall non-parole period that negates, or substantially negates, a finding of special circumstances may lead to the inference that the sentencing judge overlooked the effect of partial cumulation.
4. At the hearing, senior counsel for Tilley submitted that, in linguistic terms, it was difficult to describe a variation of 1.7 per cent to the statutory ratio as moderate. However, senior counsel for Tilley stated that the stronger argument, which he said was based on authority, was that if cumulation or partial cumulation impacts significantly on a finding of special circumstances, then the sentencing judge should give reasons as to why he or she determined the overall ratio as appropriate.
5. In that context, senior counsel for Tilley referred to two cases, namely Dawson v R [2013] NSWCCA 61 ("Dawson") and Elwood v R [2019] NSWCCA 315 ("Elwood"), where, notwithstanding that the overall ratio was less than 75 per cent, the Court was satisfied that the impact of cumulation was overlooked.
6. So far as the submission made by the Crown to the effect that there was not much point in extending the non-parole period beyond three years, which is the practical limit of parole supervision, senior counsel for Tilley referred to GP v R [2017] NSWCCA 200 ("GP") where the overall ratio of the sentence imposed by the sentencing judge was 81.5 per cent. He pointed out that this Court in that matter found that the effect of the cumulation had not been taken into account and extended the non-parole period from two years, six months to four years.

b The other applicants

1. The submissions made on behalf of Tilley on this ground were adopted.

c The Crown

1. In its written submissions the Crown submitted that the ultimate constraint on the finding of special circumstances is that the non-parole period must appropriately reflect the criminality of the offence, and there was no requirement for a sentencing court to impose the same degree of variation in the statutory ratio as that provided for in the individual sentence.
2. It was submitted that there was no inadvertence or miscalculation in the present case. It was noted that the sentencing judge indicated his intention that the variation was to be modest and provided a table to show how he arrived at the overall sentence. It was submitted that the variation was entirely consistent with the bases on which the sentencing judge found special circumstances. The Crown also submitted that four years is a long time for community-based supervision, stating that the sentencing judge would have been aware that three years was the practical limit for parole supervision.
3. The Crown also submitted that the effective non-parole period was required to reflect the criminality of the offences, and that the two offences concerning Mr Vollmost were serious. It was submitted that the sentencing judge was correct in stating that there was a need to punish the offenders in a way that is proportionate to the seriousness of the case and to reflect the community's understandable expectation of the disapprobation of the conduct.
4. The Crown at the hearing pointed out that in respect of the total effective sentence, the variation in the ratio from 75 per cent to 73.3 per cent resulted in a reduction of three months on the minimum sentence. The Crown submitted that a reduction to 66 percent as suggested by senior counsel for Tilley would make a very considerable difference, namely one year and three months.
5. It was submitted that having regard to the table prepared by the sentencing judge which showed clearly the effect of the accumulation, it could not be inferred that the sentencing judge overlooked the matter. The Crown stated that GP and Dawson were cases where there was concern about the inadvertence of the sentencing judge because there was accumulation on an existing sentence. The Crown noted that the ground in question was conceded in Dawson.

Consideration

1. It was not disputed between the parties that the effect of cumulation of sentences can constitute special circumstances to warrant a variation to the statutory ratio provided for by s 44(2) of the Sentencing Procedure Act: see, eg, Calhoun (a pseudonym) v R [2018] NSWCCA 150 at [30] ("Calhoun"); R v Simpson (1992) 61 A Crim R 58 at [61] ("Simpson"). However, a finding of special circumstances is a discretionary one and it is necessary to establish error. As was pointed out in each of Calhoun and Simpson, the ultimate constraint on a finding of special circumstances is that the non-parole period must appropriately reflect the criminality of the offence.
2. It is important to bear in mind the discretionary nature of a finding of special circumstances and the fact that where sentences have been accumulated, an offender has no right to the same variation to the ratio in respect of the overall sentence as was granted for the individual sentences. In Spark v R [2012] NSWCCA 140, Fullerton J (with whom Macfarlan JA and Grove AJ agreed) summarised the principles in the following terms at [35]: "[35] While the factors relevant to the exercise of the discretion obviously differ from case to case, in a given case the same factors are frequently relied upon both to attract a finding of special circumstances and the degree to which the statutory ratio should be varied so as to provide for extended supervision on parole. When sentences for multiple counts are imposed, and when it is clear that some accumulation is necessary between individual counts, the relative weight to be afforded these discretionary considerations will be important. The exercise of the discretion may however be productive of different results at different phases of the sentencing process as occurred in this case. To the extent that the applicant contends that because of the finding of special circumstances he was entitled to the same or a similar degree of variation in the statutory ratio after partial accumulation as that provided for in the calculation of the individual sentences, that submission must be rejected (R v Swan [2005] NSWCCA 252). The sentencing judge retains a wide discretion as to whether the accumulation of sentences itself qualifies as a special circumstance. In this case the sentencing judge made no such finding. On the appeal this was not said to constitute error. In R v Cramp [2004] NSWCCA 264 at [36] Spigelman CJ said subject to the non-parole period being either manifestly inadequate or manifestly excessive, this Court should be very slow to intervene to alter the ratio ultimately determined by the sentencing judge as an appropriate reflection of the minimum period which should be served in custody and what is required by way of extended supervision, even after a finding of special circumstances."

The separate grounds of appeal relied upon by Thomas

1. The separate grounds raised by Thomas, although alleging discrete errors, could in one sense be described as subsets of his parity ground (ground three). However, consistent with the approach adopted by the parties I will deal with them separately.

Ground 1(a) - The sentencing judge erred with respect to the manslaughter count in failing to distinguish between the conduct of the applicant as opposed to the other offenders and thereby failed to identify the applicant's lower level of culpability

a Thomas

1. In written submissions filed on behalf of Thomas reference was made to the conclusion by the sentencing judge that it was not possible to meaningfully give effect to the discrete role of the offenders in the execution of their joint endeavour: see [66] above.
2. The submissions referred to what was said by Spigelman CJ in R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [161]-[162] ("JW") to the effect that although in the case of an offence committed as a result of a joint criminal enterprise each party must bear responsibility for the acts of the others, it is nevertheless always relevant to refer to the particular conduct of each participant with a view to identifying the level of culpability for which each must be sentenced. Referring to Ramos v R [2015] NSWCCA 313 at [28]-[29] ("Ramos"), it was submitted that the difference between responsibility and culpability was important.
3. It was submitted that the role which Thomas played was essentially driving the car and taking over the guarding of Mr Knight when Tilley went through the gate and into the shed.
4. The submission referred to what were described as the following points of contradistinction: "a. Mr Davies had the dispute with the deceased; b. Mr Davies and Mr Bentley were the first to chase the deceased into the rear of his premises; c. Mr Davies carried the extendable baton; d. It was Mr Bentley and Mr Davies who actually inflicted at least three violent (fatal) blows to the deceased, at least two of which were delivered while the deceased was already wounded and was crouched down or kneeling; e. The applicant was not present when those blows causing death were inflicted nor did he somehow direct such acts; f. Mr Tilley and Mr Bentley carried the deceased's body back to the vehicle; and g. Mr Davies approached and punched the deceased's neighbour to the ground."
5. It was submitted that had full and proper consideration been given to the different roles of each offender, the culpability of Thomas would have been found to be significantly less than that of the co-offenders.
6. At the hearing counsel for Thomas placed reliance on Johnson v R [2010] NSWCCA 124 (Johnson). In that case, Simpson J (as her Honour then was) made the following remarks at [12]: "[12] The overriding circumstance is that the two or more offenders have engaged in an enterprise that calls upon each to perform his or her assigned role. The objective cannot or may not be achieved unless each participant plays his or her part. In those circumstances it may be unfair to treat one offender, who happens to have been assigned a role that involves less active participation in the actual crime than others, more leniently than those whose task it was, for example, to carry out the essential act constituting the crime."

b The Crown

1. The Crown in written submissions pointed out that the sentencing judge was cognitive of, and expressly referred on more than one occasion to, the individual acts of the applicants. It was noted that all that was put in respect of this ground in the Court below was that the sentencing judge could find "some minor degree of difference in culpability". Referring to JW, the Crown submitted that the extent to which Thomas' culpability may be distinguished from his co-offenders was limited.
2. The Crown submitted that the object of the enterprise, namely the assault of Mr Vollmost, required each participant to play their assigned roles, stating that the sentencing judge was correct to conclude that each offender "provided a unique link of equal strength in the same chain".
3. The Crown submitted that the role played by Thomas could not simply be characterised as driving the car and taking over the guarding of Mr Knight when Tilley went through the gate and into the shed. It was submitted first that it was equally important that as soon as he parked the car Thomas was the first to go into the backyard to assist Bentley and Davies. Secondly, the Crown stated that the submission that Thomas was not present when the blows were occasioned to Mr Vollmost was not a finding made by the sentencing judge. Thirdly, the Crown submitted that the driving of the car was significant, noting that Thomas was the driver in the dangerous and relatively long pursuit of Mr Vollmost through the streets of South Windsor which allowed the group to apprehend Mr Vollmost and inflict the assault upon him.

Consideration

1. This ground as framed can be dealt with shortly. The sentencing judge concluded that the manslaughter offence was a serious one of its kind.
2. That finding, which was classically within the role of the sentencing judge (see Mulato v R [2006] NSWCCA 282 at [37] and [45]-[46]), was not disputed. Rather, it was submitted that the moral culpability of Thomas was less than that of his co-offenders. That matter would seem to go to the question of parity rather than to establish error in the determination of the objective seriousness. However, it is convenient to deal with it at this point.
3. The principles are well known. Whilst each participant in a joint criminal enterprise is criminally responsible for the acts of the other in furtherance of the enterprise, the moral culpability can vary depending upon the individual offenders' participation in it: JW at [161]-[163]; Ramos at [28]-[29]. However, as Spigelman CJ pointed out in JW at [166], there are limits to what differential can occur with respect to the objective seriousness of the crime because of the existence of the common purpose. Further, as Simpson J pointed out in Johnson in the passage to which I have referred at [158] above, where it was necessary for each participant to perform his or her assigned tasks it may be unfair to treat the less active participant more leniently.
4. The submissions made on behalf of Thomas pointed to what were described as a number of points of contradistinction: see [156] above. It should be noted that in respect of these matters, the statement of agreed facts stated that all applicants had a "falling out" with Mr Vollmost, and the sentencing judge stated that he was not satisfied that the extendable baton was used in the assault.
5. Those submissions ignore the fact that Thomas was not only the driver but, in that capacity, was instrumental in the car chase at South Windsor which preceded the fatal attack and enabled it to occur. The submissions further ignore the fact that after Thomas left the car, he followed Bentley and Davies into the shed and then guarded Mr Knight, preventing him from going to the assistance of Mr Vollmost. Thomas' role was vital to the successful completion of the enterprise. In these circumstances his moral culpability was no less than that of the other offenders.
6. This ground of appeal has not been made out.

Ground 1(b)(ii) - The sentencing judge erred with respect to the conceal corpse offence 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.

a Thomas

1. In written submissions in support of this ground it was submitted that Thomas was not involved in the disposal of the body and did not ever know of its location. I have already rejected the latter contention.
2. 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

1. 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

1. The same principles apply to this ground as apply to the previous ground.
2. 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.
3. 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.
4. 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

a Thomas

1. 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.
2. 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.
3. 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

1. 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

1. 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.
2. 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.
3. 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

a Thomas

1. 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

1. 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.
2. At the hearing the Crown accepted it was not necessary for there to be such a connection for the principles in Bugmy to apply.
3. 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.
4. 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

1. 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.
2. 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.

a Thomas

1. 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.
2. 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

1. 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.
2. 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.
3. It was submitted that in those circumstances, the disparity was not so marked as to give rise to a justifiable sense of grievance.

Consideration

1. 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.
2. 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."
3. 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.

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

1. 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.

a The applicants

1. Each of Bentley, Thomas and Tilley adopted the submissions made on behalf of Davies.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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

1. 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".
2. 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.
3. 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.
4. 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.
5. 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

1. 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.
2. 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].
3. 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.
4. 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.
5. 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.

Conclusion

1. 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.
2. 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.
3. 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.
4. 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.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 February 2021