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

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

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

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

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

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

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

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

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

The applicants each received the following sentence:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It was submitted that what Davies said in evidence satisfied both limbs of s 21A(3)(i) of the Sentencing Procedure Act. At the hearing, counsel for Davies submitted that the evidence given by Davies at the trial was equivocal. She submitted that any lack of logic in his decision making could be explained by panic. She also emphasised that the police never searched the bushland in the Dorrigo area where Davies lived, and that the Crown proffered no alternative theory as to the disposal of the body.

Counsel for Davies also submitted that whilst it may have been open to the sentencing judge to reject remorse in relation to the concealment of corpse offence, it was erroneous in relation to the manslaughter offence where Davies “had in fact grasped the nettle and given evidence in relation to the way in which he accepted responsibility” and had pleaded guilty.

The written submissions filed on behalf of Bentley adopted the written submissions of Davies and Tilley on this ground.

At the hearing, counsel for Bentley submitted that the sentencing judge’s finding that the applicant knew where the body was disposed of was treated by the sentencing judge as a factor which increased the objective seriousness of the offence and reduced the weight given to remorse. She submitted that as it was treated as a matter increasing the objective seriousness, the sentencing judge had to be satisfied beyond reasonable doubt that Bentley knew the location of the body. She submitted that there was no evidence to suggest this. She emphasised that it was not the Crown case that Bentley was a party to the disposal of the body.

Counsel for Bentley submitted that the sentencing judge’s finding on this issue affected his Honour’s conclusion on the issue of remorse in respect of all of the offences and, in that way, had an overall effect on the sentence.

In written submissions filed on behalf of Tilley, the written submissions filed on behalf of Davies were adopted. Further, it was submitted that if the evidence of Davies was rejected there was no basis to make a finding of who disposed of the body or the circumstances of its disposal. It was also submitted that whilst it was possible that the applicants knew of the location, it was also possible that one or more of them did not and it was therefore not possible to find beyond reasonable doubt that Tilley knew of its location, so as to increase the objective gravity of the offence.

At the hearing, senior counsel for Tilley submitted that what was covered by the plea of guilty to the offence of knowingly concealing a corpse was that Tilley was party to an agreement to conceal it, such that each applicant was criminally liable irrespective of who actually carried out the concealment. Referring to that portion of the sentencing judgment which I have set out at [68] above, senior counsel for Tilley submitted that the effect of the sentencing judge’s conclusion that the likely absence of Mr Vollmost’s body elevated the offence from above midrange to a very serious one of its kind involved a finding that the applicants knew where the body was and failed to disclose it. He submitted that that had to be established beyond reasonable doubt.

Senior counsel for Tilley also submitted that the sentencing judge simply rejected the whole of Davies’ evidence, including the fact that Tilley was present when Davies disposed of the body. He submitted that whilst there may be a different test on the question of remorse, it was not open to the judge to be satisfied beyond reasonable doubt that Tilley was present and knew the location of the disposal of the body.

In written submissions filed on behalf of Thomas it was submitted without elaboration that the sentencing judge erred in rejecting the evidence given by Davies. It was submitted “more fundamentally” that it had never been suggested that Thomas was involved in the disposal of the body beyond its immediate removal from the Cox Street premises. It was submitted that the evidence of Davies that he did not tell the other applicants the whereabouts of the body was not challenged in cross-examination, and in those circumstances the sentencing judge erred in finding it was inherently improbable that the other applicants were not aware of its whereabouts.

It was submitted that in these circumstances the sentencing judge erred in failing to properly distinguish between the different roles separately played by each applicant. In particular, it was pointed out that Thomas was the first to leave the premises. It was submitted that Thomas’ culpability should have been held to have been significantly less than that of the other applicants.

At the hearing, counsel for Thomas submitted that, even when looked at solely from the perception of remorse as distinct from objective seriousness, the finding that Thomas knew of the whereabouts of the body and had failed to disclose it was an adverse factual finding against Thomas which needed to be established beyond reasonable doubt.

In that context, counsel for Tilley submitted that the Crown was incorrect in submitting that the evidence of Davies, namely that he did not tell the others of the whereabouts of the body, was not challenged. He accepted, however, that a fair reading of the cross-examination showed that the Crown was challenging everything that Davies was saying and there was no question of fairness involved. He also accepted by his plea of guilty that Thomas admitted to being a party to what was a successful concealment, and the success increased its objective seriousness.

The Crown submitted that it was acknowledged by counsel for Davies in the sentencing proceedings that in order for Davies’ account to be accepted, the sentencing judge would need to accept that Davies was concerned with dropping off the drugs in the car trip to Dorrigo before he took steps to deal with the body, though the latter involved far more serious criminality.

The Crown submitted that the finding that all the applicants knew but would not disclose what became of Mr Vollmost’s body was well open as a matter of inference arising from the agreed facts, the CCTV footage and the various expressions of remorse relied upon by each applicant.

The Crown submitted that, in addition to the advantage enjoyed by the sentencing judge in seeing Davies give his evidence, there were clear obstacles to accepting it. It was submitted that Davies’ evidence was given at a late stage in the sentencing hearing after two trials; it required acceptance of an implausible scenario where Davies travelled to Dorrigo in a ute (subsequently cleaned with ammonia) to dispose of drugs before dropping off the body in a scrap yard. It was submitted that the evidence was internally inconsistent about a critical and presumably straightforward matter of whether Mr Vollmost’s body had been in the ute before it had been cleaned with ammonia.

The Crown submitted that the agreed facts, together with the CCTV footage, showed the applicants to be a close-knit group acting as a coherent unit in carrying out the joint criminal enterprise. It was submitted that clearly each offender sought to avoid apprehension for an unlawful death, and it could be inferred, especially given the closeness of the applicants, that each would take an active interest in the disposal of the body.

It was submitted that the submissions filed on behalf of the various applicants were incorrect in asserting that the Crown did not challenge Davies’ evidence that he did not discuss the disposal of the body with the co-offenders. The Crown referred in that context to Davies’ evidence in cross-examination that Tilley was with him and that the applicants had agreed that “whatever happened next we would never talk about it” (see [17] above).

It was also submitted that the cogency of the conclusion by the sentencing judge was not diminished by the letters tendered by Bentley, Thomas and Tilley, which did not touch upon the subject of what happened to the body, let alone provide some indication that they had no knowledge about it.

The Crown also pointed out that these grounds of appeal also contended that the sentencing judge erred in his evaluation of remorse. In that context, it was submitted that it was entirely reasonable to expect that a genuine attempt at reparation for both the death and the concealment of the body would involve revealing the body’s location. It was noted that at the sentencing hearing counsel for Davies acknowledged that his explanation of what happened to the body was a necessary component of demonstrating remorse.

The Crown submitted that there were different considerations in failing to identify a co-offender in a drug offence and failing to identify the location of a victim’s body to his or her family. As I indicated at [88] above, I agree with that proposition.

The Crown referred to the submissions made by the applicant, in particular Thomas, whose submissions were adopted by the other applicants, that the non-disclosure of the body could only have involved the tempering of remorse in respect of the conceal corpse offence. It was submitted that matters tending to detract from the force of the expression of remorse must affect the assessment of remorse for the offending as a whole, given that the statements of remorse appear to have been made for the benefit of the sentencing proceedings, rather than a genuine remorse for the deceased, his family and the wider community.

The Crown also pointed to the fact that in the case of Bentley, Thomas and Tilley the expressions of remorse were confined to statements made in unsworn and untested letters. The Crown also pointed to the fact that listening device material showed Bentley and Tilley laughing about media reporting of the event.

It was submitted that in these circumstances the conclusion of the sentencing judge was not effected by error.

The Crown at the hearing agreed with the propositions that the very fact that the whereabouts of the corpse had not been disclosed and was likely to remain so, of itself elevated the objective seriousness of the offence. It was further submitted that it was not a matter of significance that, as having regard to the manner of accumulation, the effective sentence for the conceal corpse offence was only one year.

In dealing with the question of the standard of proof, the Crown submitted that it was clear from the manner in which the sentencing judge expressed his reasons that his Honour had made his findings beyond reasonable doubt.

These grounds of appeal as developed in the submissions raise a number of overlapping issues. The first is whether the sentencing judge erred in determining whether the applicants were aware of the location at which the body of Mr Vollmost was disposed of. That involves a subsidiary question of whether the Crown bore the onus of proving beyond reasonable doubt that each of the applicants were aware of the body’s location but chose not to reveal it, or whether the onus was on the applicants in demonstrating remorse to establish on the balance of probabilities that they did not know of the whereabouts of the body.

The second issue which was raised by Thomas is that, regardless of the position so far as the manslaughter and conceal corpse offences are concerned, the sentencing judge erred in concluding that no account should be taken of remorse for the drug offences.

Before dealing with these issues it is important to have regard to two matters. The first of these is the manner in which the sentencing judge was said to have erred in dealing with the fact that the location of the body was unknown and second, the manner in which his Honour in fact dealt with the question of remorse.

So far as the first matter is concerned, a fair reading of the judgment demonstrates in my opinion that the sentencing judge treated the fact that the location of the body was unknown, as distinct from the failure by the applicants to disclose its whereabouts, as the matter which increased the objective seriousness of the conceal corpse offence. In my opinion, that is clear from the passage of the judgment of the sentencing judge to which I have referred at [67] above. It should be noted that in the paragraph immediately following the one to which I have referred (that is, at [68] above), the sentencing judge stated that the fact that the body was never likely to be recovered and the applicants’ actions of disposing of it in that way increased the objective seriousness of the offence.

The approach of the sentencing judge was consistent with authority. In Davis Jordan CJ, with whom the other members of the Court agreed, stated the elements of the offence in the following terms at 265:

Chief Justice Jordan also concluded that the secretive fashion in which the body had been disposed of aggravated the offence. His Honour made the following remarks at 266-267:

It is also important to bear in mind that the sentencing judge did not find that the applicants’ stated remorse for their actions should be rejected in entirety, but rather their failure to disclose the whereabouts of the body reduced the extent to which each applicant was entitled to the benefit of the remorse (see [67] and [77] above). The relevant issue thus is whether the sentencing judge was correct in concluding that the applicants were not entitled to the full benefit of their expressions of remorse for failing to disclose the location of the body in circumstances where they knew of its location.

The question of the onus of proof on this issue is one of some difficulty. On the one hand, a finding that the applicants knew of the location of the body but failed to disclose it is a finding adverse to the applicants which needs to be established beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54. On the other hand, being solely relevant to the issue of remorse, it could be argued that it is a matter for the applicants to establish on the balance of probabilities that they were not aware of the location of the body.

In my opinion, although it is correct that it was up to the applicants to demonstrate remorse, the finding of a particular factual matter which would tend to demonstrate a lack of such remorse is a finding adverse to the applicants and was required to be established beyond reasonable doubt.

The question thus is whether it was open to the sentencing judge to be satisfied beyond reasonable doubt that the applicants knew of the whereabouts of the body. The Crown submitted that to succeed on the appeal the applicants were required to establish that the impugned finding was not open to the sentencing judge, rather than substituting its own finding: AB v R [2014] NSWCCA 339 at [52]-[59]; Azzopardi v R [2019] NSWCCA 306 at [34]-[39]. That approach, which is consistent with a preponderance of authority in this Court (cf Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim 150; Hordern v R [2019] NSWCCA 138; (2019) 278 A Crim R 353), was not suggested to be the incorrect approach by any of the applicants.

In my opinion it was plainly open to the sentencing judge to reject the evidence of Davies as to the manner in which he disposed of the body. His evidence involved the somewhat astonishing proposition that he retained the body from the time it was removed from the Cox Street premises on 31 March whilst he drove to Dorrigo the following day, carefully disposed of the drugs in the Dorrigo area, returned to Sydney, cleaned the utility the next morning and then left the body in a toolbox at a scrap metal yard, placing it in the back of a car that was to be crushed and then left it. I have set out that evidence at [17] above. In my opinion the sentencing judge was entitled to reject it.

Further, a review of the evidence at the trial which was relied upon by counsel for Davies lends no support for his version and indeed casts further doubts on its veracity. Davies initially stated that there was a machine bearing down on the roof of the car in which the toolbox was placed when he was about to leave the scrap metal yard. He subsequently described the machine as a forklift and said quite inconsistently with his initial version that he saw a forklift putting another car on top of the car containing the toolbox. The latter portion of evidence was given after the Crown had obtained a statement from the scrap metal merchant that there was no crusher at the yard.

The inconsistencies in the evidence given by Davies coupled with the inherent improbability of his versions of events meant that it was well open to the sentencing judge to be satisfied beyond reasonable doubt that Davies did not dispose of the body in the manner he suggested. The sentencing judge did not, however, reject Davies’ evidence that he was the person who disposed of the body, as distinct from rejecting his evidence as to the manner of disposal.

However, once the evidence given by Davies as to the manner of disposal is rejected, there is no evidence that Tilley was actively involved in the disposal. He is thus in the same position as Bentley and Thomas.

It seems to me that it was open to the sentencing judge to be satisfied on the material before him that it was unbelievable that Davies had not told the other members of the group (including Tilley if he was not involved in the disposal) of how he disposed of the body, something in which they would be vitally interested. As the sentencing judge pointed out, it was an agreed fact that the applicants were a very close-knit group who considered themselves to be family. That made it even more unlikely that the person or persons who disposed of the body did not tell the others of how and where he or they disposed of it.

So far as remorse for the drug offences was concerned, the matter was only raised by Thomas. The sentencing judge referred to the letter written by Thomas which expressed remorse for the drug offences, as well as the manslaughter offence. Although he did not refer to the expression of remorse for the drug offences, it cannot be inferred he failed to have regard to it, particularly having regard to the relatively lenient sentence imposed for that offence. As I have already indicated, the sentencing judge did not entirely reject the expressions of remorse, but rather stated that they were not entitled to the full benefit by reason of the failure to disclose the whereabouts of the body.

It follows that these grounds of appeal have not been made out.

In written submissions filed on behalf of Tilley it was submitted that the sentencing judge was correct in his conclusion that the statutory ratio for the non-parole period could be varied to a moderate extent to take into account the fact that the offenders all had reasonable prospects of rehabilitation and were all in custody for the first time.

However, it was submitted that the sentencing judge made no reference to cumulation of sentences as a special circumstance, and that it should be inferred that it was not taken into account. It was noted that the finding of special circumstance with respect to the sentences for manslaughter and drug supply, made pursuant to s 44(2) of the Sentencing Procedure Act, resulted in a ratio of 66.7 per cent which was described as moderate, but once cumulation was taken into account, the overall ratio was 73.3 per cent.

It was submitted that it was well established that partial cumulation can be a special circumstance and that in dealing with non-parole periods it was appropriate to consider the overall non-parole period. It was submitted that an absence of expressed reasons for imposing an overall non-parole period that negates, or substantially negates, a finding of special circumstances may lead to the inference that the sentencing judge overlooked the effect of partial cumulation.

At the hearing, senior counsel for Tilley submitted that, in linguistic terms, it was difficult to describe a variation of 1.7 per cent to the statutory ratio as moderate. However, senior counsel for Tilley stated that the stronger argument, which he said was based on authority, was that if cumulation or partial cumulation impacts significantly on a finding of special circumstances, then the sentencing judge should give reasons as to why he or she determined the overall ratio as appropriate.

In that context, senior counsel for Tilley referred to two cases, namely Dawson v R [2013] NSWCCA 61 (“Dawson”) and Elwood v R [2019] NSWCCA 315 (“Elwood”), where, notwithstanding that the overall ratio was less than 75 per cent, the Court was satisfied that the impact of cumulation was overlooked.

So far as the submission made by the Crown to the effect that there was not much point in extending the non-parole period beyond three years, which is the practical limit of parole supervision, senior counsel for Tilley referred to GP v R [2017] NSWCCA 200 (“GP”) where the overall ratio of the sentence imposed by the sentencing judge was 81.5 per cent. He pointed out that this Court in that matter found that the effect of the cumulation had not been taken into account and extended the non-parole period from two years, six months to four years.

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

In its written submissions the Crown submitted that the ultimate constraint on the finding of special circumstances is that the non-parole period must appropriately reflect the criminality of the offence, and there was no requirement for a sentencing court to impose the same degree of variation in the statutory ratio as that provided for in the individual sentence.

It was submitted that there was no inadvertence or miscalculation in the present case. It was noted that the sentencing judge indicated his intention that the variation was to be modest and provided a table to show how he arrived at the overall sentence. It was submitted that the variation was entirely consistent with the bases on which the sentencing judge found special circumstances. The Crown also submitted that four years is a long time for community-based supervision, stating that the sentencing judge would have been aware that three years was the practical limit for parole supervision.

The Crown also submitted that the effective non-parole period was required to reflect the criminality of the offences, and that the two offences concerning Mr Vollmost were serious. It was submitted that the sentencing judge was correct in stating that there was a need to punish the offenders in a way that is proportionate to the seriousness of the case and to reflect the community’s understandable expectation of the disapprobation of the conduct.

The Crown at the hearing pointed out that in respect of the total effective sentence, the variation in the ratio from 75 per cent to 73.3 per cent resulted in a reduction of three months on the minimum sentence. The Crown submitted that a reduction to 66 percent as suggested by senior counsel for Tilley would make a very considerable difference, namely one year and three months.

It was submitted that having regard to the table prepared by the sentencing judge which showed clearly the effect of the accumulation, it could not be inferred that the sentencing judge overlooked the matter. The Crown stated that GP and Dawson were cases where there was concern about the inadvertence of the sentencing judge because there was accumulation on an existing sentence. The Crown noted that the ground in question was conceded in Dawson.

It was not disputed between the parties that the effect of cumulation of sentences can constitute special circumstances to warrant a variation to the statutory ratio provided for by s 44(2) of the Sentencing Procedure Act: see, eg, Calhoun (a pseudonym) v R [2018] NSWCCA 150 at [30] (“Calhoun”); R v Simpson (1992) 61 A Crim R 58 at [61] (“Simpson”). However, a finding of special circumstances is a discretionary one and it is necessary to establish error. As was pointed out in each of Calhoun and Simpson, the ultimate constraint on a finding of special circumstances is that the non-parole period must appropriately reflect the criminality of the offence.

It is important to bear in mind the discretionary nature of a finding of special circumstances and the fact that where sentences have been accumulated, an offender has no right to the same variation to the ratio in respect of the overall sentence as was granted for the individual sentences. In Spark v R [2012] NSWCCA 140, Fullerton J (with whom Macfarlan JA and Grove AJ agreed) summarised the principles in the following terms at [35]:

However in a number of cases where the effect of the cumulation has led to an increase in the non-parole period beyond the statutory ratio or beyond what otherwise appeared to be the express intention of the sentencing judge, and the judge has made no reference to this consequence, it has been concluded that the sentencing discretion miscarried: see Sabongi v R [2015] NSWCCA 25; (2015) 249 A Crim R 167 at [90]; Dawson at [45]-[48] (where the error was conceded); Elwood at [61]-[63]. In the latter case, Fullerton J with whom the other members of the Court agreed made the following remarks at [61] and [62]:

In the present case the sentencing judge made an express finding of special circumstances, stating that he had varied the statutory ratio to a “moderate” extent to take into account the fact that the applicants all had reasonable prospects of rehabilitation and were imprisoned for the first time. That finding was reflected in the fact that the non-parole period imposed for the manslaughter and drug offences was 66.7 per cent of the total of each sentence.

However, the sentencing judge made no reference to the fact that the effect of the accumulation resulted in a ratio between the non-parole period and the actual sentence of 73.3 percent, a reduction of 1.7 percent from the statutory ratio.

With some hesitation, particularly having regard to the careful and detailed manner in which the sentencing judge approached the sentencing task, I have concluded that he overlooked the effect of the accumulation. It does not seem to me that a variation of 1.7 per cent for three months on the otherwise minimum term could be said to be a moderate variation of the statutory ratio or bear any resemblance to the ratio imposed in respect of the individual sentences. Whilst there may have been good reason to adopt this approach, in the absence of any explanation I am forced to the conclusion that the matter was overlooked.

It follows this ground of appeal has been made out.

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

In written submissions filed on behalf of Thomas reference was made to the conclusion by the sentencing judge that it was not possible to meaningfully give effect to the discrete role of the offenders in the execution of their joint endeavour: see [66] above.

The submissions referred to what was said by Spigelman CJ in R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [161]-[162] (“JW”) to the effect that although in the case of an offence committed as a result of a joint criminal enterprise each party must bear responsibility for the acts of the others, it is nevertheless always relevant to refer to the particular conduct of each participant with a view to identifying the level of culpability for which each must be sentenced. Referring to Ramos v R [2015] NSWCCA 313 at [28]-[29] (“Ramos”), it was submitted that the difference between responsibility and culpability was important.

It was submitted that the role which Thomas played was essentially driving the car and taking over the guarding of Mr Knight when Tilley went through the gate and into the shed.

The submission referred to what were described as the following points of contradistinction:

It was submitted that had full and proper consideration been given to the different roles of each offender, the culpability of Thomas would have been found to be significantly less than that of the co-offenders.

At the hearing counsel for Thomas placed reliance on Johnson v R [2010] NSWCCA 124 (Johnson). In that case, Simpson J (as her Honour then was) made the following remarks at [12]:

Counsel for Thomas emphasised that Simpson J was only stating that treating an offender who did not participate in the actual crime differently to the other participants in the joint criminal enterprise may be unfair, submitting that everything depends on the facts. He submitted that this was supported by what James J said in Johnson at [4].

Counsel for Thomas accepted that Thomas was not merely the driver and that after he parked the Hyundai, he ran into the garage towards the shed to assist Davies and Bentley. Counsel for Thomas accepted that, once inside, Thomas took a turn in guarding Mr Knight whilst the others entered the shed for the first time. He also accepted that Mr Knight was guarded so that he could not assist Mr Vollmost.

Counsel for Thomas also accepted that the CCTV footage showed that what happened occurred very quickly, with the four applicants running in to chase Mr Vollmost over the fence and one guarding the person to prevent active assistance. He also agreed that they all left together. However, he submitted that Thomas was not the first to chase Mr Vollmost, he was not carrying any extendable baton, he was not inside the shed, he did not inflict the blows, and he did not carry the body out.

The Crown in written submissions pointed out that the sentencing judge was cognitive of, and expressly referred on more than one occasion to, the individual acts of the applicants. It was noted that all that was put in respect of this ground in the Court below was that the sentencing judge could find “some minor degree of difference in culpability”. Referring to JW, the Crown submitted that the extent to which Thomas’ culpability may be distinguished from his co-offenders was limited.

The Crown submitted that the object of the enterprise, namely the assault of Mr Vollmost, required each participant to play their assigned roles, stating that the sentencing judge was correct to conclude that each offender “provided a unique link of equal strength in the same chain”.

The Crown submitted that the role played by Thomas could not simply be characterised as driving the car and taking over the guarding of Mr Knight when Tilley went through the gate and into the shed. It was submitted first that it was equally important that as soon as he parked the car Thomas was the first to go into the backyard to assist Bentley and Davies. Secondly, the Crown stated that the submission that Thomas was not present when the blows were occasioned to Mr Vollmost was not a finding made by the sentencing judge. Thirdly, the Crown submitted that the driving of the car was significant, noting that Thomas was the driver in the dangerous and relatively long pursuit of Mr Vollmost through the streets of South Windsor which allowed the group to apprehend Mr Vollmost and inflict the assault upon him.

This ground as framed can be dealt with shortly. The sentencing judge concluded that the manslaughter offence was a serious one of its kind.

That finding, which was classically within the role of the sentencing judge (see Mulato v R [2006] NSWCCA 282 at [37] and [45]-[46]), was not disputed. Rather, it was submitted that the moral culpability of Thomas was less than that of his co-offenders. That matter would seem to go to the question of parity rather than to establish error in the determination of the objective seriousness. However, it is convenient to deal with it at this point.

The principles are well known. Whilst each participant in a joint criminal enterprise is criminally responsible for the acts of the other in furtherance of the enterprise, the moral culpability can vary depending upon the individual offenders’ participation in it: JW at [161]-[163]; Ramos at [28]-[29]. However, as Spigelman CJ pointed out in JW at [166], there are limits to what differential can occur with respect to the objective seriousness of the crime because of the existence of the common purpose. Further, as Simpson J pointed out in Johnson in the passage to which I have referred at [158] above, where it was necessary for each participant to perform his or her assigned tasks it may be unfair to treat the less active participant more leniently.

The submissions made on behalf of Thomas pointed to what were described as a number of points of contradistinction: see [156] above. It should be noted that in respect of these matters, the statement of agreed facts stated that all applicants had a “falling out” with Mr Vollmost, and the sentencing judge stated that he was not satisfied that the extendable baton was used in the assault.

Those submissions ignore the fact that Thomas was not only the driver but, in that capacity, was instrumental in the car chase at South Windsor which preceded the fatal attack and enabled it to occur. The submissions further ignore the fact that after Thomas left the car, he followed Bentley and Davies into the shed and then guarded Mr Knight, preventing him from going to the assistance of Mr Vollmost. Thomas’ role was vital to the successful completion of the enterprise. In these circumstances his moral culpability was no less than that of the other offenders.

This ground of appeal has not been made out.

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

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

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

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

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

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

This ground has not been made out.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In the result I would make the following orders:

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

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

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

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

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

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

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

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

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

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

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

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