R v Bentley; R v Davies; R v Thomas; R v Tilley - [2019] NSWSC 1649 - NSWSC 2019 case summary — Zoe

NSWNSWSC

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

[2019] NSWSC 1649

Supreme Court of NSW|2019-10-17|Before: Harrison J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2019-10-17

Before

Harrison J

Source

Original judgment source is linked above.

Judgment (44 paragraphs)

[1]

int criminal enterprise - whether offenders remorseful - whether offenders provoked or acting in self-defence - whether moral culpability of offenders equal - where manslaughter is above the mid-range of objective seriousness - whether need for general deterrence - offenders' prospects of rehabilitation

[2]

CRIMINAL LAW - sentence - where offenders pleaded guilty to knowingly conceal a corpse - where offenders liable on basis of joint criminal enterprise - where deceased's body has not been located - whether failure to disclose location of deceased's body aggravates objective seriousness of the offence - where offence is above the mid-range of objective seriousness

[3]

CRIMINAL LAW - sentence - where offenders pleaded guilty to supplying a commercial quantity of methylamphetamine - where offenders supplied different quantities of drug - whether moral culpability of offenders equal - where Form 1 offences also taken into account - accumulation and concurrency of multiple sentences Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(i) Crimes Act 1900 (NSW), ss 112(2), s 188(1) Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2) Cases Cited: Galvin v The Queen [2015] NSWCCA 88 Huang v The Queen [2019] NSWCCA 144 Johnson v The Queen [2010] NSWCCA 124 Pham v The Queen [2013] NSWCCA 217 R v Aljubouri [2019] NSWSC 180 R v Davis (1942) 42 SR (NSW) 263 R v Downey (1994) 15 Cr App R (S) 760 R v Doyle [1996] 1 Cr App R (S) 341 R v Heffernan (1951) 69 WN (NSW) 125 R v Hunter [1974] QB 95 R v Lang [2002] 2 Cr App R (S) 15 R v Parry & McLean (1986) 8 Cr App R (S) 470 R v Reeves [2017] NSWSC 813 R v Skinner (1993) 14 Cr App R (S) 115 R v Sukkar [2011] NSWCCA 140 R v Swindle (1981) 3 Cr App R (S) 255 R v Whiteley [2001] 2 Cr App R (S) 25 R v Wong [2018] NSWCCA 20 Somba v R [2012] NSWCCA 214 Wong v The Queen (2001) 207 CLR 584 Category: Sentence Parties: Regina (Crown) Mitchell James Bentley (Offender) Jack Davies (Offender) William Patrick Thomas (Offender) Jamie Michael Tilley (Offender) Representation: Counsel: D Scully (Crown) J Trevallion (Offender Bentley) M Cunneen SC (Offenders Davies and Tilley) N Carroll (Offender Thomas)

[6]

Manslaughter and conceal corpse - agreed facts

Brendan Vollmost lived with his partner and her two children at 79 Cox Street, South Windsor. The offenders and Mr Vollmost were drug dealers in the Hawkesbury area. Prior to 31 March 2015, the offenders had a falling out with Mr Vollmost.
On the evening of 31 March 2015, the offenders acted in a joint criminal enterprise with the intention of assaulting Mr Vollmost at his premises at Cox Street. It is no longer alleged that any of the offenders intended to cause grievous bodily harm to Mr Vollmost, or that any of them foresaw the possibility that another offender would intentionally inflict grievous bodily harm upon him. 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 the Cox Street premises.
Shortly before he was killed, Mr Vollmost was a passenger in a white Holden Commodore station wagon driven by Ronald Byrnes, with Brendan Knight in the rear passenger seat. The offenders pursued them in a white Hyundai station wagon driven by Mr Thomas through the streets of South Windsor to Cox Street, before leaving their vehicle and chasing Mr Vollmost up his driveway.
Mr Davies was first up the driveway, carrying an extended metal baton. He was followed by Mr Bentley, then Mr Tilley and finally Mr Thomas. Mr Davies and Mr Bentley chased Mr Vollmost and Mr Byrnes through the gates at the top of the driveway and into the shed. Mr Knight attempted to get out of the Commodore, but was prevented from doing so by Mr Tilley, who stood guard. After parking the Hyundai, Mr Thomas ran into the backyard towards the shed to assist Mr Davies and Mr Bentley.
Once inside the shed, Mr Bentley and Mr Davies acted together to inflict at least three violent blows upon Mr Vollmost, at least two of which were delivered while he was already wounded and either crouched down or kneeling. Mr Vollmost suffered substantial blood loss and died directly as a result of the injuries he sustained during the assault.
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. Mr Vollmost's blood was also found on the tip of the extendable arm of the baton.
Mr Thomas and Mr Tilley alternated between guarding Mr Knight and briefly entering the shed. Mr Davies then left the shed and was the last to take over the role of guarding Mr Knight. Mr Thomas returned to the Hyundai.
Following the death of Mr Vollmost, the offenders also formed an agreement to take his body away from the premises at Cox Street so that it could be later disposed of by one or more of them. In so doing, the offenders concealed the body so that the police could not conduct proper inquiries. The offenders all knew that Mr Vollmost had died from an abnormal cause, namely violence inflicted upon him in the rear shed. Pursuant to this joint criminal enterprise, Mr Bentley and Mr Tilley carried Mr Vollmost's body from the shed, down the driveway and into the waiting Hyundai.
As this was happening, the next door neighbour, Alex Gorman, walked from his house and onto the driveway. Mr Davies walked up to Mr Gorman and punched him in the face, knocking him backwards.
The offenders then left the scene in the car driven by Mr Thomas.
One or more of the offenders later cut the Hyundai into parts and disposed of them. These vehicle parts have never been found. Mr Vollmost's body was also disposed of and it too has never been found.
Significant portions of the events at 79 Cox Street were recorded on CCTV installed at the premises. These recordings were tendered by the Crown without objection in the sentencing proceedings.

[9]

Jamie Tilley

Mr Tilley was born in October 1981 and is the eldest of the four offenders.
Mr Tilley tendered a psychological report dated 10 October 2019 prepared by John Machlin, a clinical psychologist. Mr Machlin took a personal history from Mr Tilley which he recorded as follows: "Mr Tilley was born in Sydney and raised in the north-western suburb of Seven Hills. His parents separated when he was about 5, and he stayed with his mother who formed a new relationship. He had an elder half-brother on his mother's side, who moved out of home when Mr Tilley was 11 or 12. At a similar time, another son was born to Mr Tilley's mother and stepfather. Mr Tilley has always been close to his mother. He did not get on with his stepfather, a drinker who was domineering and occasionally violent to his mother. The stepfather favoured his biological son. Mr Tilley feared him, and he regarded his mother as his 'protector'. Mr Tilley would stay reluctantly some weekends with his biological father whom he described as a very hard, stern, 'military style', and averse to any display of affection. The communication between them was minimal, such that he did not even know if his father worked during the week. Mr Tilley said he stopped seeing his father when legally permitted to decline visits from age 16. He said he has had no contact with him whatsoever since then. Mr Tilley's stepfather left a decade ago. Mr Tilley continued living with his mother and his younger half-brother who receives a Disability Support Pension due to a learning disability. When Mr Tilley bought a house, they all moved in. He later 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. He continued living in the granny flat until his admission to prison over four years ago. Mr Tilley attended primary and high schools in Seven Hills. His literacy was good, and he was not placed in special classes. His father made him study on weekend visits. However, he said he had behavioural and attitudinal problems throughout his school career, and he believes he would perhaps have been diagnosed with ADHD had he received clinical attention. He received one or more suspensions but was never expelled. He denied any proneness to fighting or violence, saying he just had 'attitude'. He continued to the end of Year 12, and he matriculated well enough to gain entry to a government position. After leaving school, Mr Tilley worked for CityRail for 13 years, starting as a customer service attendant, and progressing to station manager in a relief capacity at various stations. He enjoyed the job, and had thought of it as a permanent career. He recalled responding to unpredictable and sometimes traumatic demands of the job including an estimated four fatalities and several other incidents where serious injuries had occurred. He said he can still picture some of those scenes vividly. He performed his duties competently until the grief of a relationship breakdown, followed by a bout of depression, at which time he started using drugs. His work performance declined and he was eventually dismissed. He had no legitimate employment for about two years leading up to his arrest. During his four years on remand, he was based at Silverwater for a year and a half where he had the opportunity to work in textiles and in the laundry. He said he would like to enrol in a vocational course after he is sentenced. Mr Tilley's longest relationship lasted 1½ years to 2 years until 2012 or 2013. The breakup triggered a depression and drug use, leading to the loss of his job about six months later. He has since had only brief relationships, and is currently single. He has no dependants. He reported no significant medical history. He is not on any prescription medication. Around the time of his relationship breakup in 2012 or 2013 and the loss of his employment in 2013, Mr Tilley's GP, Dr Varatharajan, referred him to a psychologist. He was not prescribed medication. He attended an estimated seven sessions of counselling. He recalled some relief from the opportunity to talk openly and without judgment. However, his depressive symptoms continued until the onset of drug habits from 2013 to his arrest in 2015. He denied any prior drug use. He started using cocaine in combination with Valium and later Xanax. He said the cocaine made him feel good and 'took the pain away'. The Xanax helped him to calm down and to sleep, and it became an addiction. He did not consider his drug use to be problematic at the time because he enjoyed the effects and he felt he was in control, while in the meantime it kept his depression 'in the background'. Living in the granny flat while his mother was in the house, he managed to hide his drug use from her. Mr Tilley also recalled a gambling addiction from 2013 to 2015. He said he paid his bills first, and would often be inclined to splurge the remainder at the casino."
Mr Tilley has a minor record of knowingly make a statement misleading and reckless in a material particular and import a prohibited import. I have not been provided with the details of these offences which were dealt with in the Local Court in 2010. In each case Mr Tilley was fined. I am unable to draw any assistance from the fact of these convictions either favourable or unfavourable to Mr Tilley in the circumstances. The Crown did not refer to them.

[13]

Remorse and guilty plea

Mr Bentley gave evidence at the second trial but did not give evidence at the sentencing proceedings. He wrote two undated letters that were tendered on his behalf. Some of what he said in those letters is as follows: "Your Honour, it's been over 4½ years since Brendan Vollmost died at my hands. I spent some of that time trying to drown out that memory. I tried to make myself feel better about what happened in all different ways. I tried blaming Brendan, I tried using drugs, I tried using humour, I tried all of these things and more to stop myself having to deal with the fact that Brendan died directly because of my actions. It took over a year for me to accept and fully understand the repercussions my actions caused for multiple families, namely Brendan Vollmost's. Looking back on myself and my behaviour in 2015 and even the second half of 2014, I feel as though I'm looking back on a stranger. I lost my way for a small amount of time in the scheme of an entire life but the negative impact I caused to Brendan's family and also my local community during that time I know will last for their entire lives. Worst of all directly through my actions Brendan's life was cut extremely short. We were of roughly the same age as one another and looking back on myself I feel like I was half a child still, the only difference is I've had the chance to grow older and I took that chance away from Brendan. In the short time since, I've matured a lot and learnt to deal with my emotions surrounding Brendan's death but there is still one feeling I have a hard time with and that is regret. Anger, frustration, sadness, these all go and come and go again. I've realised that regret is something that never leaves. No matter how much I wish I could go back and change everything or avoid the situation all together, what happened remains a part of my history, as the regret remains a part of my being. I've seen first hand the impact my actions have had and as I grow older and I mature, I appreciate and understand more and more the pain that I've caused. Not only have Brendan's family lost him from their lives but also through my taking away Brendan's body I know they've been denied any kind of closure that may have afforded them. It's something I will always regret and always be sorry for. I know that know (sic, no) one should be put through the pain I've put on Brendan's family and friends through and Brendan himself never deserved to die the way he did or have his body disrespected in the way he was carried away. I truly do wish I could take all of these things back. … In the 12 months or so that I went, for want of a better term 'off the rails' I am completely ashamed of all my behaviour that has me sat before you on these serious charges and more. I became a liar, cheater, drug user and dealer and worst of all Brendan Vollmost lost his life because of my actions and his family were denied a proper goodbye. These are all things I will regret for the rest of my life. I know I can never take back the things I've done but I'll never forget them. Each day the memories of that time in my life serve as a continuing reminder to be a better person. To be the better person I should have been at this time, the person my family and friends deserve. To be the person I once was. The person I know I am again. Your Honour, I truly am sorry and do regret what I've done and the pain I've caused. But I know that doesn't make amends. I will accept the sentence you decide to hand down to me and know that it's fair. Thank you for taking the time to read this letter."
The second letter is as follows: "First of all, to Brendan's family, his mother, Mrs Slade and his brothers and sisters and everyone else he cared for and cared for him in return. Brendan was someone you all loved and held dear and I'm someone who is responsible for his death. For that I am truly sorry. It is by my hand that he died and that is something I must live with every day but I know that the guilt I must live with is minute in comparison to the pain and loss you have all been forced to endure. I've lost loved ones in the past 4½ years but none were taken from me the way Brendan was taken from you. I can't begin to imagine the sadness you all feel but also the deserved anger you feel towards myself. I know my words may mean next to little to you but from the bottom of my heart I truly am sorry to all of you. Brendan did not deserve to lose his life and not one of you deserved to lose him from your lives. I'm sorry that not only have you lost your loved one through my actions but have also been denied the opportunity of a burial and any closure that may have brought you. I want you to know that the night Brendan died plays through my mind each and every day. At first I tried to forget it or block it out but I now know that it's something I will live with for the rest of my life. I'm reminded every day of the unending grief I've caused all of you and I don't ever expect any of you to forgive me. Mrs Slade through these last 2 trials I've learnt what a close and caring relationship Brendan and yourself shared. The way he would go out of his way to make sure you had enough fire wood and how you would stop what you were doing at the drop of a hat if he ever needed you for anything. This spoke volumes to me of the love you shared for one another and I'm sure that what we saw was only the tip of the iceberg. I wish I had words that could ease even the smallest amount of your pain and anger that I've caused but the truth is I know I don't. All I can say is I honestly do wish none of this ever happened. I wish you still had your son and brother and loved one and even though you will never be able to forget, I hope one day you'll be able to accept my apology and know in your heart that I mean it sincerely. I will always remember the pain I've caused you and I will always be sorry."
Mr Bentley's expressions of remorse are detailed and profound. I remain concerned that he did not feel able to indicate to Mr Vollmost's family where his body is located or even to refer to that issue.
Mr Bentley submitted that I should find special circumstances. He has never before been in gaol. He has good prospects of rehabilitation, and has a demonstrated ability to sustain employment. He has no previous criminal record of any kind and no disciplinary incidents since being taken into custody.

[15]

William Thomas

Mr Thomas was born in February 1990 and is currently 29 years of age.
Mr Thomas tendered a psychological report dated 3 October 2019 prepared by Dr Peter Ashkar, a forensic psychologist and clinical neuropsychologist. Dr Ashkar took a personal history from Mr Thomas which he recorded as follows: "11. 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 (who died three days prior to this assessment). 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: 'She was very sick for many years … We had our days … I got close to her the older I got … We were close when she died'. 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 (his father was released from custody six months ago) and they maintain their relationship today. He is close to his sister Alison (she is married with children): 'She's the best'. He has little or no contact with his other siblings and described them to be 'junkies'. 12. His birth and early development were normal to the best of his knowledge (and he did not think he was exposed to alcohol or other drugs in utero). He enjoyed good physical health as a child and his developmental milestones were normal (i.e., with no delays in walking, talking etc.). He grew up playing football and riding BMX. He described himself to be 'a thrill seeker' which sometimes got him into trouble at school (e.g., he was suspended for jumping off a building in secondary school). He was also suspended once for fighting in primary school (but never for fighting or other violent behaviour during secondary school). He did not have any learning difficulties and he described himself to have been an average student academically. He left school during Year 11 and pursued an apprenticeship in carpentry after that, but he became increasingly involved with drugs and partying at that time and failed to complete the apprenticeship after his third year: 'I found girls'. He nonetheless continued to work in the carpentry trade in the years that followed until his arrest for these offences: 'Always employed'. 13. Mr Thomas has been involved in what he described to be an 'on again off again' relationship with his current partner Crystal (a childcare worker) since the age of 16 years. They have a daughter together (aged seven years and in grade one at school). His daughter has epilepsy and learning difficulties and is receiving extra learning assistance with a tutor: 'She is everything … She's the reason to live … She makes me want to change my life … I've missed a big chunk of her life … I don't want to miss any more … She keeps me in check … She keeps me in line'. He said of his partner: 'She's perfect … She doesn't drink, doesn't party … She just does mum'. He told me he had a mix of friends (some of whom used drugs and some of whom did not) and other than his co-offenders, he has no history of ongoing involvement or affiliation with antisocial or criminal peers. 14. Mr Thomas has a history of heavy alcohol, cocaine, ecstasy, and benzodiazepine use. He began using alcohol at the age of 16 years and he reported a pattern of binge drinking behaviour in social settings on most weekends until his early twenties. He regularly used ecstasy in social situations (typically at nightclubs) between the ages of 16 and his early twenties, but he reported no use since that time. He began using cocaine in his early twenties and he used this substance (smoking or snorting but never injecting) on most days in the years that followed until his arrest for the current offences. He also began using benzodiazepine in his mid-twenties to 'come down' from cocaine. He has also used steroids. He has never used heroin or methamphetamine (and he reported no use of any other illicit substances). He reported no use of any illicit substances since his arrest and incarceration for these offences. 15. Mr Thomas has no medical or psychiatric history of note (other than facial injuries from a biking accident at the age of 16, knee operations at 23, and an ankle operation at 24). He did not report any symptoms of trauma following his involvement in the subject offences: 'This is the first time I've thought about it … I've suppressed it pretty well'. He mentioned feelings of sadness and depression associated with the offences today: 'I get down thinking about it … The hardest part is thinking about his mum … Being in here, you learn about the pain of loss'. He has no history of self-harming or suicidal behaviour and he denied suicidal ideation or intent."

[16]

Remorse and guilty plea

Mr Thomas did not give evidence at any time, either during the trials or in the sentencing proceedings. However, he wrote a letter to the Court that was tendered in these proceedings. It is undated but in the following terms: "After spending over 4 years on remand I have had ample time to think over my actions. It's with great regret and a heart full of sorrow that I write this letter to apologise to the victims of my crimes, but also to accept my mistakes and take another step towards becoming a better person. I want to say how truly sorry I am to the Vollmost family, with the time I have had to reflect on my actions and the pain I have caused their family I can truly say this is something I will never forgive myself for. I never got into the car thinking it was going to change so many lives, it was the worst decision I've made in my life. After 2 weeks of the first trial and witnessing the pain it was causing the Vollmost family, I tried to bring the trial to an early end by advising my legal team to put forward a offer to plea to manslaughter, so I'm also sorry that a 2nd trial had to run causing their pain to surface again. Growing up in housing commission with a single mum and 5 other siblings I became aware of drugs from a very young age, both my mum's use to my mum's sale of drugs. Her use caused me to spend time in and out of rehabs with her. The step into using drugs myself was taken around the age of 16, it was mainly on weekends with friends. I started using more regularly after my dad was arrested and gaoled for the manufacture of drugs where he spent over the next 10 years, my use was fairly consistent up till my early 20s. At the age of 21 I found out I was about to become a father. I had always maintained a healthy working life but I decided it was time to stop partying and time to start building a healthy life for my daughter. I ended up hurting my knee at work which resulted in me having 2 knee operations. After the first operation and being out of work after working consistently from the age of 16, struggling to support my family I found myself turning back to drugs to numb the pain. After the second operation my use of cocaine got a lot worse, but I also found myself heavily using prescription drugs (Endone, Xanax , Diazepam). After my habit and lack of work causing my family a financial burden I felt at the time I had no other choice but to start selling drugs, this ultimately caused my relationship to break down. As of 31st March up until my arrest I was still heavily using prescription drugs, and coke. Coming to gaol and focusing on living a healthy lifestyle it has given me the clear mind I've needed to realise the true affect of drugs, and I can honestly say this is something I never will be involved in again. I am truly sorry to my community that I was taking part in the destruction of our community. I have learnt a lot in my time behind bars, the hardest being the pain of loss after my mother passed away just over 2 years ago, and most recently my nan's passing on the 3rd September. I was refused by corrective services the chance to attend their funerals. In their passing I was shown firsthand the pain I have caused the Vollmost family, this is the pain I will never forgive myself for. I would also like to apologise to my daughter, for not being there to support her emotionally, physically, and financially through her own battles with illness which resulted in her diagnosis with epilepsy. Also to my daughter's mother Krystal Mervin, for forcing her into a life of raising our daughter alone, and for all the other pain I've caused our family. Upon my release I want to maintain a very healthy and honest lifestyle, making it up to the people that supported me through my time behind bars. I will also be putting a lot of time into being the father my daughter so desperately deserves on a daily basis. Another important thing is also taking the time to go say my final good byes to my mum and nan. Your Honour, I don't want the main focus of my letter lost amongst all I've written. My main focus is how truly sorry I am to the Vollmost family and the other families hurt by my actions, but also how truly sorry I am to my daughter."
In much the same way as his co-offenders, Mr Thomas's expressions of remorse are clearly articulated. However, I do not accept that Mr Thomas does not know what happened to Mr Vollmost's body. His failure even to refer to that topic, and in my opinion his 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 contained in his letters.
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.
Mr Thomas has a 7 year old daughter who was 3 years old when he was taken into custody, and their separation has been extremely difficult for both of them. His daughter has in more recent times been diagnosed with epilepsy and heat seizures, which means she is hospitalised frequently. She has also experienced behavioural difficulties at school and the separation from her father has resulted in the need for counselling, despite her young age.
Mr Thomas has a very limited criminal history, being a single conviction for possession of a prohibited weapon for which he was fined.
Mr Thomas has been in custody now for over 4 years in a high security prison on remand at Long Bay. He has had only two internal cautions and one punishment for possession of a prohibited good.
Two tragic events have occurred during the four years that Mr Thomas has been in prison. His mother died about two years ago and he was unable to attend the funeral. Recently his grandmother also died and he was again refused permission to attend her funeral. Both deaths have had an impact on him, exacerbated by the guilt and pain of not being with his family before their deaths, nor being able to attend their funeral and grieve in the normal course.
Mr Thomas submitted that he has good prospects of rehabilitation, if he can maintain a drug free lifestyle when released from prison and disassociate himself from people involved in drugs. He has a work opportunity and has previously been committed to gainful employment.
He submitted that I should find special circumstances as he and the community would benefit from the supervision of Community Corrections on parole to ensure he does not relapse upon release. His abstinence whilst in custody is supportive of his prospects of rehabilitation, although that will not be known until he returns to the community. Extended parole will also assist with reintegration and transition into the community as he will by then have spent many uninterrupted years in custody.

[18]

Jack Davies

Mr Davies was born in March 1990 and is currently 29 years of age.
Mr Davies tendered a psychological report dated 14 October 2019 prepared by John Machlin, a clinical psychologist. Mr Machlin took a personal history from Mr Davies which he recorded as follows: "Mr Davies was born in Sydney and raised from age five in Dorrigo, a small town west of Coffs Harbour, where his father still runs a recycling centre. He has a younger sister, Lily. He also has an elder half-brother on his mother's side, and four elder half-brothers on his father's side, who mainly lived separately. Mr Davies said both his parents were heavy drinkers, they both gambled, and his mother had a marijuana habit. He said they would fight 'whenever they were together', recalling that his father would come home from the pub drunk after work, and his mother would already be drunk when he arrived. His parents' relationship was violent, and he would often wake to the sound of them fighting. For the most part, he attributed the violence to his mother who would initiate attacks when his father was asleep, and would persist in her attacks fuelled by long-held grudges. Mr Davies recalled trying to protect his father. He also recalled that his father would sometimes retaliate, and he appeared particularly affected by one violent scene that remained etched in his memory from age 6 or 7. His parents were not physically violent toward him but they could be verbally abusive. The family returned to Sydney for a year when Mr Davies was nine, at a time when two grandparents were terminally ill, and then returned to Dorrigo. His parents separated when he was 12, and he remained in Dorrigo with his father. At age 15, he left for Sydney to stay with his elder half-brother with whom he had a close relationship, and who had assisted a lot in his care as an infant when they all lived in Windsor. Mr Davies stayed with his half-brother and partner for a few years while doing a plumbing apprenticeship, and has since lived self-sufficiently with friends. He has remained on good terms with his father in Dorrigo. He has not maintained a close relationship with his mother who now lives in Coffs Harbour. He appears to remain close to his younger sister who lives alone in Sydney, and he expressed some guilt that he lived separately from her after their parents separated. Mr Davies attended a small school in Dorrigo where he recalled chronic social and academic struggles. He related to an early memory of a female teacher who used to touch him and several other boys sexually while giving them inappropriate advice about future relationships. Mr Davies said he had never talked about this before, and it was not possible in the current forum to explore its impact at length, but he did link it to anxiety that later affected his school experience. He was bullied for his height, being extremely tall in primary school, as well as his passive nature, and he recalled one older boy who 'bashed' him on his way to and from school regularly. His father refused to intervene. He was otherwise anxious about leaving the house, given that his mother would be home alone, drinking, and he recalled acute fears of her dying in his absence. He conveyed that he did not reach his potential at school and was always in the lower academic stream. When he re-moved to Sydney at age 15, he did a plumbing apprenticeship without impediment, and held solid employment in the industry over the following years. He worked for various companies in general plumbing and solar hot water systems, and in large scale construction that took him to a project in Canberra for 10 months. In the last year before his arrest, he was unemployed for six months during a time of severe drug abuse; he recovered partially out of a need to 'create a cash flow' for his partner, and was self-employed for the last six months. Mr Davies was in a four-year relationship up to 2013 with Amy who is the half-sister of one of his co-offenders, William Thomas. He said he was badly affected by the breakup. He then formed a relationship with a woman named Sienna who had similar anxiety problems to his, and they formed a close connection. Several years into his remand, the relationship was no longer sustainable, and he said he has faced a struggle since they parted. He has no dependants. He gave no significant [physical] medical history. Mr Davies described childhood anxiety problems in the context of his recollections of sexual abuse by a primary school teacher, school bullying, domestic violence between his parents, and separation anxiety from his mother. He described having maintained a significant element of social anxiety and possible depression in combination with long-standing drug habits. He did not receive any mental health treatment other than a prescription of antidepressants. He recalled having booked psychotherapeutic appointments on more than one occasion after his relationship breakup in 2013, and failing to attend due to his anxiety and the daunting prospect of addressing life problems. He relied on pills at times of high anxiety, and was so fearful of situations where he might panic that he would carry a bottle of Xanax with him everywhere he went. He had used antidepressants for a number of years, and is currently on prescriptions of Sertraline and Endep which are both used in the treatment of depression and anxiety. Mr Davies said he started using alcohol and marijuana at 12 or 13. By the end of school it was a daily habit and he recalled he was 'always in a fog'. Through his late teens and early adult years, he used alcohol, marijuana and ecstasy in varying amounts, often heavily, to the extent that he would spend all his money on the drugs after his bills were paid. His habits increased substantially after the break-up with Amy in 2013. He became addicted to cocaine, and would use Serapax to bring himself down in order to sleep. He said he took cocaine to work, and was 'constantly using for months'. He was ashamed to say that he also used ice intermittently. He spent his savings and a sum of money that his father had given him toward a deposit on a property. The breakup, his depleted finances, and his eventual unemployment were sources of increasing anxiety and depression. He became reliant on Xanax to manage acute anxiety. On reflection he said he was embarrassed to admit that he has used drugs his 'whole life' until his admission to prison where he said he has remained sober and has had to learn to face up to stressful situations without relying on drugs."

[19]

Remorse and guilty plea

Mr Davies was the only offender to give evidence at the sentencing proceedings. Some of his evidence was as follows: "Q. Sir, do you accept responsibility for your part in the death of Mr Vollmost? A. I accept responsibility for the whole thing. 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."
Mr Davies' expressions of remorse are necessarily tied to the question of the offenders' disposal of Mr Vollmost's body and whether or not he, or they, know where it is now located. His evidence before me tacitly reflects the fact that he recognised the uncontroversial proposition that the genuineness of his expressions of remorse would be in question if he were otherwise thought to be withholding information about that issue. For the reasons later discussed, I am unable to accept that Mr Vollmost's body was taken to the scrap metal yard and left there. It follows that I do not accept that Mr Davies does not know where his body is. I do not accept Mr Davies' apology to Mr Vollmost's mother that he is unable to provide her with the location of her son's remains.
Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 provides that remorse may be taken into account as a mitigating factor but only if: "(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)…"
The words used by Mr Davies literally accept responsibility for his actions and literally acknowledge the injury caused as a result. However, I reject that evidence as disingenuous having regard to my view that Mr Davies and his co-offenders know where Mr Vollmost's body is but will not say.
Mr Davies' plea of guilty to manslaughter comes at what must be close to the very latest stage in the criminal trial process. Mr Davies offered to plead guilty to manslaughter on the basis of excessive self-defence on Day 11 of the first trial in 2018. He submitted that a discount of 10 percent to 15 percent was attracted in those circumstances. He submitted that his plea of guilty to the conceal corpse offence should attract a discount of 25 percent as it was made at the first available opportunity.

[22]

Victim impact statements

Statements by Ms Tammy Slade, Mr Vollmost's mother, his brother Jesse Moor and his sister Tahnee Moor were read to the Court by a support person. Ms Slade's statement was in these terms: "Each day without Brendan only gets worse. Where is he? Where is my son? That is all that goes through my mind and it is ripping me apart. Each day I cry. There are always so many reasons to cry, so many reminders. The other night at work, I heard that Brendan's ex-girlfriend has just got married. Something I will never see Brendan do. I finished out my shift crying all night, thinking about all the lost moments I should have been able to have with my son. Everyone is moving on with their lives but I just can't. The damage this has done to my family is huge. We used to do so much together but now we are fractured and all in our own private pain, affected in different ways. Sometimes we can't even talk about Brendan as it hurts so much. I just work, work, work to keep myself distracted. I find it easier if I'm too exhausted to think. I can't feel joy anymore and I find myself just going through the motions of life for the sake of my younger children. I had three boys with my first husband. Brendan was the middle child. He and I were always close, being so similar in nature - he was a Mummy's boy! After my third son, Harley, was born severely physically and mentally handicapped, my boys' father left us. We were on our own and it was tough, but we managed with the help of my Mum and sisters. So many times I was advised to just put Harley in a home but I swore that would never happen as long as I was alive. Brendan was brilliant with Harley - he had a big heart and would do anything to help me with his little brother. I met my current partner when Harley was seven. He took us all on and was a father to my boys. We added another son and then a daughter to our family and lived a happy normal life. We love camping, motorbikes and lots of outdoor activities. We did everything together. Unfortunately, the area we were living in had a major problem with drugs. We were devastated to find out that Brendan had got involved in all of that. He started using drugs and apparently started selling some to fund his habit. But he was no big time drug dealer. He didn't own a house or an expensive fast car. When I had to go and sort out his belongings after he was murdered, all that he owned fitted in to one suitcase and he had one old bomb of a car. We have had no opportunity to lay Brendan to rest in peace or give him a decent respectful funeral. No chance to say a last goodbye. No grave to go and visit. Every day we have to wonder where he is, what has been done to him? We are just left with the mental image of Brendan running for his life, of his body being stuffed in to a sleeping bag and a tool box, just left there like he was nothing. As his mother, the thought just rips me apart. There must be other mothers and fathers in this courtroom today - can you for a moment imagine this is your precious child, a child you carried, a child you loved and raised? How would you feel? I would not wish this pain on anyone. Maybe one day these offenders will become parents and come to know every parent's constant worry and anxiety about the welfare of their child. I hope they think of Brendan then, and the true cruelty of what they have put me through finally dawns on them. Our suffering could so easily be brought to a close if these offenders would do the right thing. Why won't they? There must be a reason they will not talk. They have shown no remorse nor one ounce of compassion for Brendan's loved ones. No respect for the court with their laughing and carrying on despite the judges reprimanding them. I was shocked to hear from the Police that one of these offenders had recently been granted leave from prison to attend his grandfather's funeral. Can you imagine what a slap in the face that was to us? He was actually allowed to go and do the very thing he continues to deny to us! What an insult! My mother died not knowing where her grandson was. It broke her heart - she just became sicker and too ill to even come to court. She didn't want her illnesses treated anymore and she left us, unable to die peacefully as she should have. Brendan didn't get to go to his grandmother's funeral. I am left constantly trying to explain to two young teenagers why this world doesn't work the way they thought it did - that there is no justice for their beloved brother. They were only 7 and 9 when Brendan went missing. They adored him and have hated living without him being there for all their important achievements since. They shouldn't have to know there is such evil in the world at this young age. They shouldn't have to see counsellors to help them with their anger, confusion and grief. They should just be normal happy kids. We try to come to terms with the fact that we will never have Brendan in our lives again, never get to see him happy and settled or become a father - never having him at our family get-togethers or major milestones in our lives. But there is no way we can ever really accept this. He was not ill. He did not die in an accident. His life was taken from him. We have received a life sentence of pain and grief through the malicious cold-hearted choices of these offenders."
None of the authors of these statements was cross-examined. I have had regard to these statements for the purposes of understanding the effect of Mr Vollmost's death upon the members of his family. The matters referred to in the statements accord with what one might reasonably expect to be the devastating effect upon family members of the death of a loved-one in circumstances such as the present. However, having regard to the fact that the evidence before me, including statements tendered by the offenders, uncontroversially establishes, and I accept, that Mr Vollmost's death is an awful and tragic event, with continuing consequences for his family and the community, it is important to emphasise that repetition of these same matters cannot give them more force for sentencing purposes than they already have.

[26]

Disposal of the body

As I have already noted, Mr Davies was the only offender to give evidence at the sentencing proceedings. Part of his evidence included the proposition that Mr Vollmost's body was taken by him and Mr Tilley to a Penrith scrap metal yard in the back of a utility or its trailer together with the Hyundai car parts and left there. Mr Davies said that Mr Vollmost's body was in a metal trunk or tool box and that he confidently anticipated that it would not be subjected to inspection once it had been left at the yard. I reject that evidence completely.
Mr Davies' evidence included the fact that he drove the same utility around lunchtime on 1 April 2015, which was the day following Mr Vollmost's death, to Dorrigo in order to dispose of the offenders' drug stash. He denied that Mr Vollmost's body was in the trunk or tool box that is visible in the rear of the utility on its journey north. He accepted that the utility was cleaned and cleaned again using ammonia and a gurney following the trip to Dorrigo, but denied that that 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, Mr Davies agreed that it had been in the utility at some stage, as his evidence reveals: "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."
On his account, Mr Davies gave priority to the task of hiding the relatively modest amount of drugs that might have inculpated the offenders 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. I do not believe that account. It is inherently improbable that either Mr Davies or his co-offenders would not have taken the earliest opportunity to dispose of Mr Vollmost's body, such as the following day, or that instead they would have been prepared to allow it to remain upon even a large property associated with one of them.
Furthermore, the caution apparently associated with a carefully planned and executed operation to dispose of drugs and with scrupulously sanitising the vehicle in which they are said to have been transported is wholly inconsistent with carelessly dumping 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 Mr Vollmost's body. This is particularly so having regard to Mr Davies' evidence at the sentencing proceedings, which included the following: "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, non-metals? A. Mm hmm. Q. Just wondered if the prospect that someone at the scrap metal yard might open 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."
Mr Davies' evidence in the 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. I do not believe the account that he gave in evidence before me in the sentencing proceedings to the same effect that he took Mr Vollmost's body to the scrap metal yard.

[28]

Sentencing considerations

The Crown submitted that the death of Mr Vollmost represented "a very grave example of manslaughter" when account was taken of the following matters.
First, the assault upon Mr Vollmost was not a spontaneous event. The offenders pursued him, first by car and then on foot, and chased him into his home where he was beaten to death in a brutal manner. Secondly, the offenders all had ample opportunity to resile from the enterprise. Mr Vollmost's attempt to shut the gate behind him was met by Mr Davies and Mr Bentley aggressively barging through. Thirdly, Mr Vollmost plainly comprehended the gravity of the threat posed to him. As depicted in the CCTV, the last few minutes of his life would appear to have been terrifying. He and his companion were quite literally running for their lives. Fourthly, it was a brazen attack in a residential street. The offenders, emboldened by what they perceived to be the strength of their group, acted as if they were a law unto themselves. When the neighbour Mr Gorman came out to see what was going on, he was dispatched by Mr Davies with a single punch.
The Crown submitted that I could be satisfied beyond reasonable doubt that at least one of the blows inflicted on Mr Vollmost was inflicted by the metal baton which Mr Davies carried up the driveway. Further, but in any event, even on the facts as agreed, this was a brutal attack. There were at least three blows, at least two of which were inflicted when Mr Vollmost was in a completely vulnerable position, already wounded and crouched down or kneeling in a cramped space on the floor of the shed.
The Crown submitted that the offences were aggravated by the fact that they were committed in company. As depicted in the closed circuit television, the Crown contended that the offenders appear to have operated as a well organised team and Mr Vollmost was confronted by their combined force, which presumably elevated his fear and panic. The offence was also committed in Mr Vollmost's home, in which it is apparent that he was attempting to take refuge. The Crown submitted that the offenders worked together reflecting the fact that they were a close-knit group. That is said to be evident from the CCTV footage. The task was carried out with clinical efficiency, each team member being assigned a role. It would be unfair to treat Mr Thomas and Mr Tilley with undue leniency simply because their assigned role was not to enter the shed and carry out the assault the subject of the enterprise: Somba v R [2012] NSWCCA 214 at [45]. Mr Tilley and Mr Thomas, although not in the shed, played vital roles in the enterprise. Mr Tilley stood guard over Mr Knight while Mr Davies and Mr Bentley went to the shed to carry out the assault. Mr Thomas was the driver and also took a turn guarding Mr Knight.
The Crown emphasised that all offenders are to be sentenced for the offence of manslaughter by unlawful and dangerous act. Mr Vollmost was killed by the blows inflicted upon him in the shed. The offenders were all party to the same joint criminal enterprise: Johnson v The Queen [2010] NSWCCA 124 at [4]; R v Sukkar [2011] NSWCCA 140 at [36]. The objectives of this enterprise could not have been achieved unless each offender played his assigned role.
The Crown submitted that the fact that the motivation for the attack on Mr Vollmost was a falling out between him and the offenders does not reduce the offenders' criminality. On the contrary, it elevates the importance of general deterrence to discourage others from taking matters into their own hands in a similar way.
In relation to the conceal corpse offence, the Crown again submitted that this was an extremely grave example of an offence of its type, and significantly more serious than the cases of R v Aljubouri [2019] NSWSC 180 and R v Reeves [2017] NSWSC 813. The Crown also referred to R v Davis (1942) 42 SR (NSW) 263 and R v Heffernan (1951) 69 WN (NSW) 125.
In particular, the Crown emphasised that Mr Vollmost's body has never been located and will probably remain so. That is said to be an extremely important feature which is absent from all of these and all other reported cases in which the body of the deceased has always been recovered: see, for example, R v Hunter [1974] QB 95; R v Swindle (1981) 3 Cr App R (S) 255; R v Parry & McLean (1986) 8 Cr App R (S) 470; R v Skinner (1993) 14 Cr App R (S) 115; R v Downey (1994) 15 Cr App R (S) 760; R v Doyle [1996] 1 Cr App R (S) 341; R v Whiteley [2001] 2 Cr App R (S) 25; R v Lang [2002] 2 Cr App R (S) 15.
The Crown contended that the fact that Mr Vollmost's body has never been recovered magnifies the pain and suffering visited upon his family and operated at an earlier stage to frustrate or undermine the police investigation into his disappearance. Acceptance of the inference that Mr Vollmost's body was removed and disposed of to hinder the investigation into his death or its cause significantly elevates the objective seriousness of the crime as well as the offenders' moral culpability.
With respect to the individual drug supply offences, the Crown submitted as follows.
The offenders are each to be sentenced for one count of supplying methylamphetamine in not less than the commercial quantity pursuant to s 25(2) of the Drug Misuse and Trafficking Act. The relevant quantity for each offender is as follows: 1. Mr Bentley - 950 grams methylamphetamine 2. Mr Davies - 505 grams methylamphetamine 3. Mr Thomas - 567 grams methylamphetamine 4. Mr Tilley - 950 grams methylamphetamine.
At the relevant time, the Schedule 1 quantities for methylamphetamine were as follows: Traffickable Small Indictable Commercial Large Commercial 3.0 g 1.0 g 5.0 g 0.25kg 1.0 kg

[29]

The relevant principles relating to drug supply cases were summarised by Garling J in R v Wong [2018] NSWCCA 20: "[47] Those considerations when sentencing for drug supply offences relevant here can be shortly stated: (a) that whilst all of the objectives of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act must be kept in mind, general and specific deterrence, and protection of the community, are of most direct relevance; (b) having regard to the concealed and covert nature of illicit drug supply which requires the dedication of significant public resources for detection and prosecution, a consistent message of deterrence by a sentencing Judge is necessary; (c) protection of the community is usually of significance because of the social impact of drug use, including it being an underlying cause of other criminal offending; and (d) careful attention must be paid by sentencing Judges to the maximum penalties for offences, and where fixed, to standard non-parole periods."
In assessing the objective seriousness of drug offences, whilst the quantity of drugs involved is a very material consideration, it is not determinative and the offender's role, level of participation and state of knowledge are all important factors: Wong v The Queen (2001) 207 CLR 584, [31], [54] and [129]; see also, Pham v The Queen [2013] NSWCCA 217; Galvin v The Queen [2015] NSWCCA 88; Huang v The Queen [2019] NSWCCA 144.
The Crown submitted that the offenders were motivated by greed. Their supply activities occurred over an extended period and in the shadow of an investigation into the death of Mr Vollmost. This was not enough to deter them. They operated the drug supply business as a relatively sophisticated group. They maintained stash spots. Mr Tilley acted as the up-line supplier at times.
With respect to the individual offenders, the Crown contended that: 1. Mr Tilley's conduct is well above the mid-range for commercial drug supply offences. He was the leader of the group and was concerned only with larger quantity deals of between 14 and 28 grams. He sourced methylamphetamine for his co-offenders who, in turn, were selling in quantities beyond that of an ordinary street-level dealer. Whilst he supplied directly to customers on a few occasions, he ordinarily distanced himself from this side of the operation. The 950 grams supplied by Mr Tilley was nearly four times the commercial quantity and only 50 grams shy of the large commercial quantity at that time. 2. Mr Bentley's offending is above the mid-range, having regard to the fact that he supplied methylamphetamine on a daily basis in quantities of up to 7 grams. Like Mr Tilley, the 950 grams he supplied approached the large commercial level. 3. Mr Davies' offending is within the mid-range for commercial supply offences. The fact that he sold in quantities of 56 and 28 grams to only two regular customers suggests that he was an up-line supplier himself. The total supply of 505 grams was over twice the commercial quantity. 4. Mr Thomas' offending is within the mid-range. He supplied on a daily basis in amounts between 7 and 28 grams, with the total supply being 567 grams. Like Mr Davies, this was over twice the commercial quantity.

[30]

Manslaughter

Brendan Vollmost was killed as the result of what appears to be a turf war between competing players in the supply of drugs in the South Windsor area of Sydney. Even if the basis of the offenders' pleas of guilty forecloses the conclusion that his death was planned, it remains open for me to find that the events that preceded his death were the result of a concerted and combined effort on the part of all offenders.
The CCTV footage shows Mr Byrnes' Commodore arriving at the Cox Street address at high speed where it parks at the top of the driveway. Mr Vollmost and Mr Byrnes alight hurriedly from that vehicle and run towards a high fence in front of the car. Mr Vollmost appears initially to attempt to climb over a gate in the fence, which swings open as he does so. Both he and Mr Byrnes retreat through the gate to the shed in the back yard.
The offenders have by this time also arrived at Cox Street in the white Hyundai. Mr Davies and Mr Bentley run from the street where that car is parked and chase Mr Vollmost and Mr Byrnes into the rear of the premises. Mr Davies is carrying the extendable baton to which earlier reference has been made. Mr Tilley takes up a position by the side of the Commodore and clearly does so to prevent Mr Knight from getting out of it. Mr Thomas later runs up the driveway and relieves Mr Tilley who then goes through the gate and into the shed.
Within a very short time thereafter, Mr Tilley and Mr Bentley emerge from the rear of the premises through the gate together carrying Mr Vollmost's lifeless body. They carry it past the Commodore and down the driveway to the street where it is placed into the Hyundai. Mr Davies approaches the neighbour and punches him to the ground. Mr Davies no longer has hold of the extendable baton, which was subsequently recovered from the shed by police. The offenders then all leave in the Hyundai with Mr Vollmost's body apparently propped up in the middle of the back seat. Mr Vollmost was never seen again.
The offenders contended that the assault upon Mr Vollmost was impulsive and took place in the heat of the moment. That submission needs to be considered in the light of the circumstances that reveal the offenders followed Mr Vollmost to his home in what was clearly a dangerous and relatively prolonged pursuit through the streets of South Windsor. My clear impression from the CCTV footage is that the offenders went to Mr Vollmost's home with the intention of assaulting him. The assault upon Mr Vollmost was not a surprise to the offenders 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 either. So much is evident from the fact that they chased him into his shed, carrying a weapon, and that he was in fact assaulted moments later. It would in my view be a serious mischaracterisation of what occurred to suggest that it happened without forethought. It is clear to me that the offenders did not go to 79 Cox Street on 31 March 2015 simply to have a conversation with Mr Vollmost, as some evidence led in the trials attempted to suggest.
The offenders also submitted that they had no intention either to kill or seriously injure Mr Vollmost. I do not understand that submission in the context of their current plea of guilty to manslaughter by unlawful and dangerous act. It is a well-recognised principle of the criminal law that the fact that the crime committed by an offender could have been much worse cannot constitute a mitigating consideration. The absence of both an intention to kill or to cause serious injury is presumably fundamental to the Crown's acceptance of the offenders' pleas.
Nor do I consider that it is possible meaningfully to give effect to the discrete roles of the offenders in the execution of their joint endeavours. Even accepting that the roles were different, each offender contributed to the execution of the joint enterprise in a substantial way. Each offender provided a unique link of equal strength in the same chain.
I am unable to find beyond reasonable doubt that Mr Vollmost was struck by the extendable baton. Although his blood was found upon it in microscopic quantities, the shed where he was killed had significant amounts of Mr Vollmost's blood in several locations. If the baton were used to assault and kill him, I would have expected that traces of Mr Vollmost's blood or other biological material would have been found upon it in much more significant quantities.
I reiterate that in my view this was a very serious example of manslaughter by unlawful and dangerous act and was above the mid-range of objective seriousness for offences of this type.

[31]

Unlawfully dispose of a corpse

In considering the objective seriousness of this offence, it is important to ensure that the offenders are not twice punished for the same thing. In particular, I am mindful of my conclusion that the offenders' failure to reveal the whereabouts of Mr Vollmost's body disentitles them to the full benefit of their otherwise apparent expressions of remorse. It would, however, be an error to magnify the seriousness of the unlawfully dispose of corpse offence by reference to an absence of remorse. 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.
In my view, Mr Vollmost's body is never likely to be recovered. The offenders' actions in disposing of it in a way that leads to or increases the likelihood of that dismal reality correspondingly increases the level of objective seriousness. That relatively uncontroversial proposition can be tested by reference to an alternative situation in which the body of a deceased person is buried in the ubiquitous "shallow grave", only to be recovered shortly thereafter. All other things being equal, such circumstances are in my view less objectively serious.
The disposal of Mr Vollmost's body was also in my view associated with an attempt to avoid detection and responsibility for his death. "Such conduct is an offence because it causes public mischief by its tendency to obstruct the course of justice": R v Davis per Jordan CJ at 265. However, it is not necessary for the Crown to demonstrate an intention to do so: see R v Heffernan per Street CJ at 126. That consideration applies in the present circumstances but is to some extent a factor of limited significance as the offenders were otherwise promptly apprehended despite the absence of Mr Vollmost's body. By the same token, it goes without saying that a far more complete account of what befell Mr Vollmost is almost certain to have been available if his body had been recovered. However, I specifically decline to find or to infer that the discovery of Mr Vollmost's body would conclusively have demonstrated that the offenders were guilty of a different or more serious offence or that it would have meant that their pleas of guilty to the manslaughter offence would not have been accepted. To do otherwise would be improperly to speculate about what an examination of Mr Vollmost's body post mortem might have revealed concerning the manner or cause of his death.
But for the fact that Mr Vollmost's body has not been recovered, the present offence would fall in the middle range of objective seriousness for an offence of its type, bearing in mind the potentially wide variation in scope and content of the acts that it contemplates: see, for example, R v Aljubouri per Wilson J at [50]. However, the present and likely permanent absence of Mr Vollmost's body necessarily elevates this offence well above the middle of the range and is a very serious one of its kind.

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

At a glance

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Judgment (44 paragraphs)

Legislation Cited (3)

Cases Cited (10)

Cited By (1)