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

1. [1]

   HIS HONOUR: Jamie Tilley, Mitchell Bentley, William Thomas and Jack Davies have all pleaded guilty to the manslaughter of Brendan Vollmost on 31 March 2015 and to the disposal of his body and to supplying a commercial quantity of methylamphetamine. The maximum penalty for manslaughter is imprisonment for 25 years. There is no standard non-parole period. Unlawful disposal of a corpse is a common law offence for which no specific penalty is prescribed. Supplying a commercial quantity of methylamphetamine is an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 and carries a maximum penalty of imprisonment for 20 years with a standard non-parole period of 10 years.

2. [2]

   The pleas of guilty to manslaughter follow two trials in which these offenders were charged with Mr Vollmost’s murder as well as some associated matters. In neither trial was the jury able to reach a verdict with respect to any single count on the indictment. The Crown subsequently accepted pleas of guilty from each offender to manslaughter by unlawful and dangerous act and unlawful disposal of a corpse. As I have noted, all offenders have also separately pleaded guilty to a series of different drug supply charges. These are referred to in more detail later in these remarks.

Manslaughter and conceal corpse – agreed facts

1. [3]

   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.

2. [4]

   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.

3. [5]

   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.

4. [6]

   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.

5. [7]

   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.

6. [8]

   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.

7. [9]

   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.

8. [10]

   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.

9. [11]

   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.

10. [12]

    The offenders then left the scene in the car driven by Mr Thomas.

11. [13]

    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.

12. [14]

    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.

13. [15]

    During the course of the investigation into Mr Vollmost’s death in March 2015, police learned that the offenders were dealing drugs in the Hawkesbury region. In contrast to the manslaughter, the drug charges to which the offenders have pleaded guilty involve discrete offending, even though they were committed in circumstances of a close association among all offenders. Accordingly, the agreed facts with respect to these offences are referred to individually in the case of each offender.

Subjective considerations

1. [16]

   The elements of the manslaughter and conceal corpse offences are common to all offenders. The individual differences in the roles attributable to the offenders and the separate acts performed by them in committing these offences are not in my view particularly significant in the sense that they do not indicate different levels or degrees of criminality or moral culpability. This is considered later in these remarks. The same is true in a slightly modified way with respect to the commercial supply offences.

2. [17]

   It is convenient, therefore to deal with the subjective factors and considerations that are unique to each offender, before turning to consideration of the factors relevant to the offending that is common to all of them.

Jamie Tilley

1. [18]

   Mr Tilley was born in October 1981 and is the eldest of the four offenders.

2. [19]

   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:

3. [20]

   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.

4. [21]

   Mr Tilley did not give evidence but composed a letter tendered in evidence that included the following:

5. [22]

   As I explain elsewhere in these remarks, the revelation of the whereabouts of Mr Vollmost’s body seems to me to be an essential or at least persuasive indicator of genuine remorse. I do not accept that Mr Tilley does not know where Mr Vollmost’s body is located or that there is any reason why he would not or could not make this clear in his letter. The making of reparation for the loss caused by the killing ought at least to include the provision of that information if it is to be accepted as a genuine expression of remorse. In the absence of that detail, I consider that the extent to which Mr Tilley is entitled to the benefit of remorse as a mitigating factor is correspondingly reduced.

6. [23]

   Mr Tilley’s plea of guilty to manslaughter comes at what must be close to the very latest stage in the criminal trial process. However, he 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.

7. [24]

   Mr Tilley has pleaded guilty to the supply of a prohibited drug, namely a commercial quantity of methylamphetamine. He often sourced methylamphetamine for the other offenders to supply. Mr Tilley also supplied directly to customers of the co-offenders on a few occasions. The amounts involved ranged from 14 grams to 28 grams. Mr Tilley also supplied directly to the same customers on some occasions.

8. [25]

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

9. [26]

   Mr Tilley also pleaded guilty to the supply of a prohibited drug, namely an indictable quantity of cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act. That offence is listed on a Form 1. Briefly, between 26 March 2015 and 3 September 2015 Mr Tilley supplied at least 20 grams of cocaine to his co-offenders or directly to customers.

Mitchell Bentley

1. [27]

   Mr Bentley is currently 29 years of age. His parents’ relationship broke down when he was about 14 years old. He is supported by his three sisters aged 30, 27 and 11. After completing Year 12 in 2008, Mr Bentley worked full-time until 2015 in property maintenance, labouring and in the care of captive animals, at one time involving the supervision of up to six staff. He has authored a publication on animal husbandry, has experience as a zoological photographer and hopes to study accounting and business management. He tendered a large series of supportive references, including a reference from the Featherdale Wildlife Park. Mr Bentley has a Certificate III in Captive Animals from the New South Wales Technical and Further Education Commission in 2010.

2. [28]

   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:

3. [29]

   The second letter is as follows:

4. [30]

   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.

5. [31]

   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.

6. [32]

   Mr Bentley pleaded guilty to the supply of a prohibited drug, namely a commercial quantity of methylamphetamine.

7. [33]

   Between 26 March 2015 and 31 August 2015 Mr Bentley sold methylamphetamine on a daily basis to customers in quantities of 1.75 grams, 3.5 grams or 7 grams. Mr Bentley primarily sold to five customers, not being customers of his co-offenders. In total, Mr Bentley supplied 950 grams of methylamphetamine between March and August 2015.

8. [34]

   Mr Bentley pleaded guilty to the supply of a prohibited drug, namely an indictable quantity of cocaine. Between 26 March 2015 and 3 September 2015, he supplied at least 20 grams of cocaine to customers in the Windsor area.

9. [35]

   Mr Bentley also pleaded guilty to receiving stolen property contrary to s 188(1) of the Crimes Act 1900. Briefly with respect to that offence, on 24 February 2015, a number of items were stolen from the bedroom of Connor Thompson at an address in Marrickville. The items included a Nixon brand 51-30 Crono wristwatch valued at $300. Some time after 24 February 2015, Mr Bentley received the watch from an individual associated with the theft, knowing it to be stolen.

10. [36]

    Those offences are both listed on a Form 1.

William Thomas

1. [37]

   Mr Thomas was born in February 1990 and is currently 29 years of age.

2. [38]

   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:

3. [39]

   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:

4. [40]

   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.

5. [41]

   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.

6. [42]

   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.

7. [43]

   Mr Thomas has a very limited criminal history, being a single conviction for possession of a prohibited weapon for which he was fined.

8. [44]

   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.

9. [45]

   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.

10. [46]

    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.

11. [47]

    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.

12. [48]

    Mr Thomas pleaded guilty to the supply of a prohibited drug, namely a commercial quantity of methylamphetamine. Between 26 March 2015 and 31 March 2015, Mr Thomas on-sold methylamphetamine to customers on a daily basis in amounts of 7 grams, 14 grams and 28 grams. He primarily sold methylamphetamine to five regular customers, not being customers of his co-offenders. In total, Mr Thomas supplied 567 grams of methylamphetamine between March and August 2015.

Jack Davies

1. [49]

   Mr Davies was born in March 1990 and is currently 29 years of age.

2. [50]

   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:

3. [51]

   Mr Davies was the only offender to give evidence at the sentencing proceedings. Some of his evidence was as follows:

4. [52]

   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.

5. [53]

   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:

6. [54]

   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.

7. [55]

   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.

8. [56]

   Mr Davies pleaded guilty to the supply of a prohibited drug, namely a commercial quantity of methylamphetamine. Between 26 March 2015 and 31 August 2015, Mr Davies on-sold methylamphetamine on a weekly basis to two regular customers in amounts of 56 grams or 28 grams, not being customers of his co-offenders. In total Mr Davies supplied 505 grams of methylamphetamine between March and August 2015.

Mr Davies and Mr Tilley

1. [57]

   Mr Davies and Mr Tilley also pleaded guilty to conspiracy to commit aggravated break, enter and commit a serious indictable offence in company: see s 112(2) of the Crimes Act. That offence is listed on a Form 1 for each offender. Briefly, between 31 March 2015 and 2 September 2015, these offenders and a female co-offender conspired to commit an aggravated break, enter and steal upon Leigh Brown at his residence in Kellyville. At the time of the offences, the victim was known to the female co-offender who discussed meeting the victim with Mr Tilley and, later, with Mr Davies’ girlfriend. During those conversations, the female co-offender mentioned to Mr Tilley and Mr Davies’ girlfriend that the victim was in possession of a number of gold chains and other valuable items.

2. [58]

   Between 28 April 2015 and 6 June 2015, in conversations that were monitored covertly by police, Mr Davies and Mr Tilley and the female co-offender discussed the victim, the victim’s possessions and their value, the victim’s dog and the fact that the victim did not keep his possessions in a safe or otherwise secured. They also discussed that the female co-offender had confirmed that the victim’s house had an alarm, and the methods by which they could enter the property. Later, Mr Tilley and the female co-offender had a further conversation concerning the alarm at the victim’s house, including how to use the keypad to disable it.

3. [59]

   In some of these conversations, Mr Davies and Mr Tilley speak in a jocular manner, but the details concerning the victim are genuine and the discussions are about real preparations to break into his residence.

4. [60]

   On 29 April 2015, Mr Davies and Mr Tilley covertly monitored a meeting between the female co-offender and the victim at Westpoint Shopping Centre at Blacktown. Mr Davies and Mr Tilley and the female co-offender did not at any time actually attempt to break into the victim’s property or steal anything belonging to him.

Victim impact statements

1. [61]

   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:

2. [62]

   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.

Findings of fact – general

1. [63]

   Before proceeding further, there are some matters that arise for consideration in the sentencing proceedings that in my view apply with equal force in the case of all offenders. Many of these have been referred to in submissions made on their behalf and should be addressed before proceeding further.

2. [64]

   It was submitted on behalf of Mr Thomas that Mr Vollmost’s actions or conduct in the circumstances leading up to his death somehow operated as provocation in the sense that they appear to have intensified the already apparent tension that existed between Mr Vollmost and the offenders. It was submitted that Mr Vollmost’s conduct, when as a passenger in the Commodore with Mr Byrnes and Mr Knight being driven to Cox Street, he threw objects from the vehicle at the pursuing offenders, may have inflamed his pursuers in a way that somehow caused or contributed to the harm that befell him. It was submitted in effect that the events in the shed were to some extent capable of explanation by reference to the aggressive behaviour shown by those in the Commodore during the journey from Porpoise Crescent to Cox Street.

3. [65]

   I am unable to accept that contention. Much attention was given to this journey during both trials. I mention that only for the purpose of isolating the evidentiary reference point upon which the submission is based. An examination of the considerable evidence about what occurred suggests to me that the so-called provocation was insignificant in the scheme of things in the first place and largely, if not entirely, a reaction to the fact that the offenders were showing an unwarranted interest in Mr Vollmost in the second place. That includes what appears to be a minor collision between the two vehicles at a roundabout in South Windsor. I prefer to conclude that the offenders had determined in advance to follow Mr Vollmost to Cox Street and that they did not do so as the result of any provocative conduct on his part, whether on the evening in question or at any time beforehand. I reject the contention that the offenders were unexpectedly pursued by Mr Vollmost in the Commodore with Mr Byrnes and Mr Knight.

4. [66]

   It was also submitted on behalf of Mr Thomas and Mr Bentley that Mr Vollmost and Mr Byrnes had fled or retreated to the shed where Mr Vollmost was killed in order to arm themselves. In the circumstances of this sentencing proceeding, and having regard to the offenders’ plea of guilty to manslaughter on the basis agreed, that issue is completely irrelevant. That is for at least two reasons.

5. [67]

   First, the reason for Mr Vollmost attempting to take refuge in the shed says nothing about the offenders’ culpability for killing him there in the events that occurred. The offenders’ plea is not based upon the fact that Mr Vollmost was killed by one of them in an act of excessive self-defence. Indeed, as the agreed facts make clear, self-defence has no role to play in the present sentencing exercise.

6. [68]

   Secondly, I 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 were) that there was in any event sufficient time for him to have done so in the seconds available to him on the other hand. If the suggestion is made that Mr Vollmost confronted his assailants with a sawn-off shotgun immediately before, or as, he was killed, I would reject it. The most obvious and compelling reason for that is that no such weapon was found at the scene. I would also not accept that the weapon was secreted on Mr Vollmost’s body when he was taken from the shed or the suggestion that it was removed in order to foreclose the prospect that Mr Byrnes might have chosen to arm himself with it.

7. [69]

   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.

8. [70]

   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:

9. [71]

   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.

10. [72]

    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:

11. [73]

    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.

12. [74]

    I have elsewhere discussed what I consider to be the relationship between the offenders’ revelation of the whereabouts of Mr Vollmost’s body and the genuineness of their respective expressions of remorse. As only Mr Davies gave evidence on sentence, the only version favourable to the offenders on this issue came from him. His evidence on that topic included the following:

13. [75]

    To the extent that either Mr Thomas or Mr Bentley contends that he does not know, and therefore cannot say, where Mr Vollmost’s body is, relying upon this evidence of Mr Davies, I should indicate that I do not accept the contention. It is inherently improbable, and simply unbelievable, that Mr Davies and Mr Tilley disposed of Mr Vollmost’s body without ever telling either Mr Thomas or Mr Bentley what became of it. All of the offenders were close to each other; they considered themselves to be family. They acted together in concert. All four offenders had what might be described as the presence of mind on 31 March 2015 to remove Mr Vollmost’s body from the scene of his death. It is in my view inconceivable that Mr Thomas and Mr Bentley did not thereafter take an active interest in what would be done with it or that they are not both aware of where Mr Vollmost’s body was taken by Mr Davies and Mr Tilley.

Sentencing considerations

1. [76]

   The Crown submitted that the death of Mr Vollmost represented “a very grave example of manslaughter” when account was taken of the following matters.

2. [77]

   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.

3. [78]

   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.

4. [79]

   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.

5. [80]

   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.

6. [81]

   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.

7. [82]

   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.

8. [83]

   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.

9. [84]

   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.

10. [85]

    With respect to the individual drug supply offences, the Crown submitted as follows.

11. [86]

    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. (1)

       Mr Bentley – 950 grams methylamphetamine

    2. (2)

       Mr Davies – 505 grams methylamphetamine

    3. (3)

       Mr Thomas – 567 grams methylamphetamine

    4. (4)

       Mr Tilley – 950 grams methylamphetamine.

12. [87]

    At the relevant time, the Schedule 1 quantities for methylamphetamine were as follows:

13. [88]

    The relevant principles relating to drug supply cases were summarised by Garling J in R v Wong [2018] NSWCCA 20:

14. [89]

    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.

15. [90]

    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.

16. [91]

    With respect to the individual offenders, the Crown contended that:

    1. (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. (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. (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. (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.

Objective seriousness

1. [92]

   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.

2. [93]

   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.

3. [94]

   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.

4. [95]

   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.

5. [96]

   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.

6. [97]

   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.

7. [98]

   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.

8. [99]

   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.

9. [100]

   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.

10. [101]

    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.

11. [102]

    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.

12. [103]

    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.

13. [104]

    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.

14. [105]

    The discrete drug offences to which the offenders have separately pleaded guilty are all contrary to the same provision of the Drug Misuse and Trafficking Act. Although there are obvious differences among the offenders, it is in my view somewhat artificial, in the particular circumstances of this case, to attempt to dissect and examine the individual characteristics of their separate supply offences, in order to attempt possibly to identify differing levels of criminality. The reality appears to me to be that all of the offenders were in the same business together doing much the same work supplying illegal drugs in various quantities from time to time to the same community. Although the amounts of drugs listed in the charges are not in all cases identical, a factor of less than overriding significance, all of the offenders occupied a similar role in a flat command structure. Any attempt to differentiate their respective roles, and hence their criminality and moral culpability, would in my opinion be specious, patently artificial and disingenuous.

15. [106]

    I note in this last respect that Mr Bentley specifically contended that it was his conduct that had to be considered and not that of the offenders as a group. That submission cannot be faulted. However, for the avoidance of doubt, it is my view that none of the other offenders has committed a supply offence that is more serious than that committed by Mr Bentley.

16. [107]

    I consider that the s 25(2) offences to which all offenders have separately pleaded guilty are below the middle of the range of objective seriousness.

General and specific deterrence, retribution, denunciation and punishment

1. [108]

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

2. [109]

   The conceal corpse offence is demonstrably one that involved a conscious decision to take steps to dispose of Mr Vollmost’s body. It was neither an impetuous act nor an act that was committed without the possibility for time to reflect upon its significance. Mr Vollmost’s body was not discarded in the heat of the moment or as an ill-considered surrender to passion or emotion.

3. [110]

   The manslaughter offence should also be denounced as a frightening example of extra-judicial behaviour with tragic consequences. The manner and circumstances of Mr Vollmost’s death could never be sanctioned or lawfully excused and the penalty imposed on the offenders should say as much.

4. [111]

   I am however satisfied, having regard to my conclusions about prospects of rehabilitation, that there is very little likelihood of re-offending generally and no measurable prospect that the offences concerned with Mr Vollmost’s death are ever likely to be replicated. As the offenders’ own statements and professional medical opinions have indicated, the avoidance of a return to drug use will be heavily dependent upon professional assistance both in custody and following release on parole.

5. [112]

   The sentences that I intend to impose take account of the need to punish the offenders in a way that is proportionate to the seriousness of the crimes in question and to reflect the community’s understandable expectation of the disapprobation of their conduct.

Prospects of rehabilitation

1. [113]

   The prospects of rehabilitation of all of the offenders seem to me to be reasonable. Only Mr Tilley and Mr Thomas have a previous criminal history of any kind. However, in my opinion, this prior offending is effectively irrelevant for present purposes and does not set either of them apart from their co-offenders.

Totality, accumulation and concurrence

1. [114]

   As will be apparent from the graph depicted below, I have provided for the conceal corpse sentence to run concurrently with the commercial supply sentence for a period of 1 year and for the manslaughter sentence to run concurrently with the conceal corpse sentence for a period of 1 year. The first of these periods requires no further comment. The second period is a recognition of the importance of the principle of totality while at the same time giving emphasis to the seriousness of the conceal corpse offence as a distinct and separate act of criminality.

Guilty pleas

1. [115]

   With respect to the offences of manslaughter, I consider that the offenders are each entitled to a discount of 10 percent. I allow a discount of 20 percent in respect of the offences of supplying a commercial quantity of methylamphetamine and a discount of 25 percent in respect of the offences of concealing a corpse.

Remorse

1. [116]

   As I have indicated already, I acknowledge the offenders’ respective expressions of remorse. I remain of the view that the extent to which they are entitled to the benefit of those indications is tempered by the fact that they have not revealed the whereabouts of Mr Vollmost’s body in circumstances where I have found that they know where it is.

Special circumstances

1. [117]

   I have varied the statutory ratio to a moderate extent to take account of the fact that the offenders all have reasonable prospects of rehabilitation and are all in custody for the first time.

Form 1

1. [118]

   In the case of Mr Tilley, Mr Bentley and Mr Davies, at their request, I have taken account of the offences listed on the relevant Form 1 in sentencing them for the offence of supplying a prohibited drug. For clarity I should indicate that I would not have been inclined to impose custodial penalties for any of these offences if they had been separately charged and I were required to impose a sentence. I intend in that respect to indicate that the effect of the Form 1 offences is not in any case such as to provide a basis for sentencing Mr Tilley, Mr Bentley or Mr Davies more severely than or differently from Mr Thomas. In like fashion, I have disregarded Mr Thomas’ prior conviction as a basis for distinguishing his prospects of rehabilitation from theirs.

Sentence – Jamie Tilley

1. [119]

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

2. [120]

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

3. [121]

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

4. [122]

   The first date upon which you will become eligible for release on parole is 3 September 2026.

Sentence – Mitchell Bentley

1. [123]

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

2. [124]

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

3. [125]

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

4. [126]

   The first date upon which you will become eligible for release on parole is 3 September 2026.

Sentence – William Thomas

1. [127]

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

2. [128]

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

3. [129]

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

4. [130]

   The first date upon which you will become eligible for release on parole is 3 September 2026.

Sentence – Jack Davies

1. [131]

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

2. [132]

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

3. [133]

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

4. [134]

   The first date upon which you will become eligible for release on parole is 3 September 2026.