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Supreme Court 29 November 2019

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

[2019] NSWSC 1649

HomicideDrugsPublic order & justice offences
CRIMINAL LAW SENTENCE WHETHER OFFENDERS REMORSEFUL DEFENCE WHERE MANSLAUGHTER IS ABOVE THE MID RANGE OF OBJECTIVE SERIOUSNESS

Citation: R v Bentley; R v Davies; R v Thomas; R v Tilley [2019] NSWSC 1649
Court: Supreme Court of New South Wales
Date: 29 November 2019
Judge: Harrison J

Background

Four offenders, Jamie Tilley, Mitchell Bentley, William Thomas, and Jack Davies, pleaded guilty to the manslaughter of Brendan Vollmost on 31 March 2015, to unlawfully disposing of his body, and to supplying a commercial quantity of methylamphetamine. The manslaughter and concealment pleas followed two earlier trials on a murder charge, in which juries had been unable to reach a verdict on any count. The Crown then accepted guilty pleas to the lesser offence of manslaughter by unlawful and dangerous act.

The four offenders, all drug dealers in the Hawkesbury area, had a falling out with the deceased prior to the assault. On the night in question, they pursued him to his home in South Windsor, chased him into a rear shed, and inflicted fatal blows upon him. The assault was captured on CCTV. After the death, the offenders removed and disposed of the body, which has never been found.

The drug supply charges arose separately from the investigation into the death. The offenders had been dealing methylamphetamine in the Hawkesbury region, and each faced discrete charges, with some individual variation in the quantities and roles involved.

  • Whether the objective seriousness of the manslaughter fell above the mid-range, and how the offenders' moral culpability compared to one another given their different roles in the joint criminal enterprise
  • Whether any element of provocation or self-defence was relevant to the sentencing exercise
  • Whether the failure to disclose the location of the deceased's body aggravated the objective seriousness of the corpse concealment offence
  • Whether the offenders had demonstrated genuine remorse and what weight to give their prospects of rehabilitation
  • How to assess the seriousness and relative culpability of each offender for the commercial drug supply charges, given differing quantities and Form 1 matters
  • How to structure the accumulation and concurrency of multiple sentences across the three categories of offending

Decision

Harrison J found that the manslaughter sat above the mid-range of objective seriousness. The assault was a planned, group attack on a man at his home, involving at least three violent blows, at least two of which were delivered after the deceased had already been wounded and was crouched or kneeling. The use of an extendable metal baton and the deliberate nature of the pursuit underscored the gravity of the offending.

Although the offenders played somewhat different physical roles during the assault, the court found those differences did not indicate meaningfully different levels of moral culpability. All four were participants in a joint criminal enterprise and all were sentenced on that basis for both the manslaughter and the corpse concealment. The fact that the body has never been found was treated as an aggravating factor for the concealment offence, because it has caused ongoing harm to the deceased's family and has prevented proper inquiry by police.

On the question of provocation and self-defence, the court did not accept that either consideration materially reduced the offenders' culpability to any significant degree. The court acknowledged each offender's subjective circumstances, including backgrounds of disadvantage, psychological reports, and varying degrees of expressed remorse, and took those matters into account individually. However, the need for general deterrence remained a significant sentencing consideration for offences of this nature.

For the drug supply charges, the court recognised that each offender's role and the quantities involved differed to some extent. Sentences for the drug offences were structured to run before the manslaughter sentences, with the manslaughter terms beginning once those earlier sentences were completed or substantially served.

Orders Made

Mitchell Bentley:
- Commercial drug supply (s 25(2)): non-parole period of 4 years from 3 September 2015, balance of term of 2 years (expiring 2 September 2021)
- Concealing a corpse: fixed term of 3 years from 3 September 2016 (expiring 2 September 2019)
- Manslaughter: non-parole period of 8 years from 3 September 2018 (expiring 2 September 2026), balance of term of 4 years (expiring 2 September 2030); eligible for parole 3 September 2026

Jamie Tilley:
- Commercial drug supply (s 25(2)): non-parole period of 2 years from 3 September 2015, balance of term of 1 year (expiring 2 September 2018)
- Concealing a corpse: fixed term of 3 years from 3 September 2016 (expiring 2 September 2019)
- Manslaughter: non-parole period of 8 years from 3 September 2018 (expiring 2 September 2026), balance of term of 4 years (expiring 2 September 2030); eligible for parole 3 September 2026

William Thomas:
- Commercial drug supply (s 25(2)): non-parole period of 2 years from 3 September 2015, balance of term of 1 year (expiring 2 September 2018)
- Concealing a corpse: fixed term of 3 years from 3 September 2016 (expiring 2 September 2019)
- Manslaughter: non-parole period of 8 years from 3 September 2018 (expiring 2 September 2026), balance of term of 4 years (expiring 2 September 2030); eligible for parole 3 September 2026

Jack Davies:
- Commercial drug supply (s 25(2), including Form 1 matter): non-parole period of 2 years from 3 September 2015, balance of term of 1 year (expiring 2 September 2018)
- Concealing a corpse: fixed term of 3 years from 3 September 2016 (expiring 2 September 2019)
- Manslaughter: non-parole period of 8 years from 3 September 2018 (expiring 2 September 2026), balance of term of 4 years (expiring 2 September 2030); eligible for parole 3 September 2026

Key Takeaways

  • Where multiple offenders act under a joint criminal enterprise, differences in their individual physical roles during the commission of an offence do not necessarily translate into meaningfully different levels of moral culpability for sentencing purposes.
  • The Supreme Court treated the ongoing non-disclosure of the location of a victim's body as an aggravating feature of the unlawful disposal of a corpse offence, because it compounds harm to the deceased's family and obstructs police inquiry.
  • A manslaughter involving a premeditated group assault, the use of a weapon, and blows delivered to a defenceless victim was assessed as falling above the mid-range of objective seriousness, even in the absence of an intention to cause grievous bodily harm.
  • General deterrence remained a significant sentencing factor for violent group offending of this kind, notwithstanding individual offenders' subjective circumstances and expressed remorse.
  • Sentencing for multiple discrete categories of offending (drug supply, corpse concealment, and manslaughter) involved careful structuring of accumulated and concurrent sentences so that the most serious offence, the manslaughter, carried the heaviest and most prominent penalty.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(i)
- Crimes Act 1900 (NSW), ss 112(2), 188(1)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)

Cases:
- Galvin v The Queen [2015] NSWCCA 88
- Huang v The Queen [2019] NSWCCA 144
- Johnson v The Queen [2010] NSWCCA 124
- Pham v The Queen [2013] NSWCCA 217
- R v Aljubouri [2019] NSWSC 180
- R v Davis (1942) 42 SR (NSW) 263
- R v Downey (1994) 15 Cr App R (S) 760
- R