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Court of Criminal Appeal 26 February 2021

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

[2021] NSWCCA 18

Assault & violenceHomicide
CRIME APPEALS APPEAL AGAINST SENTENCE SENTENCE ACCUMULATION OF SENTENCE SPECIAL CIRCUMSTANCES

Citation: Bentley v R; Davies v R; Thomas v R; Tilley v R [2021] NSWCCA 18
Court: Court of Criminal Appeal
Date: 26 February 2021
Judge(s): Bathurst CJ at [1]; N Adams J at [224]; Ierace J at [235]

Background

Four men pleaded guilty to manslaughter by unlawful and dangerous act and concealing a corpse, after two trials on murder charges had each resulted in a hung jury. They also each pleaded guilty to supplying a commercial quantity of methylamphetamine. The offences arose from what the sentencing judge described as a drug turf dispute in South Windsor, during which the group pursued the deceased to his home and fatally assaulted him in a shed.

Following the killing, the body was removed and disposed of in circumstances that were never conclusively established. Only one of the four gave evidence at the sentencing hearing, describing taking the body to a scrap metal yard. The sentencing judge rejected that account entirely and found that all four applicants knew where the body had been disposed of but chose not to disclose it.

The applicants sought leave to appeal against their sentences on several grounds, including that the sentencing judge erred in finding they knew the body's location, erred in reducing the weight given to their expressed remorse, failed to account for the effect of accumulating sentences on the overall non-parole period ratio, and imposed sentences that were manifestly excessive.

Legal Issues

  • Whether the sentencing judge erred in finding that all four applicants knew where the deceased's body was located but chose not to disclose it
  • What standard of proof applied to that adverse factual finding
  • Whether the sentencing judge erred in reducing the weight given to the applicants' expressions of remorse based on that finding
  • Whether the effect of accumulating the sentences constituted a special circumstance that the sentencing judge failed to take into account
  • Whether Thomas's moral culpability was meaningfully less than that of his co-offenders, warranting a lighter sentence
  • Whether the sentencing judge erred in treating the drug offences as equally serious across all applicants
  • Whether Thomas's deprived background required greater weight under the principles in Bugmy v R
  • Whether the disparity in circumstances between Thomas and his co-offenders gave rise to a justifiable sense of grievance under the parity principle
  • Whether the sentences were manifestly excessive

Decision

Knowledge of the body's location and remorse

The Court confirmed that a finding adverse to an applicant, namely that the applicants knew the body's location but refused to disclose it, had to be established beyond reasonable doubt (at [124]). The Court held that it was plainly open to the sentencing judge to reject the account given by Davies as to how he disposed of the body, describing it as inherently improbable that he would prioritise concealing a modest drug stash over disposing of a body that implicated the group in a far more serious crime (at [126]-[128]). Once that account was rejected, the Court accepted that it was open to the sentencing judge to be satisfied beyond reasonable doubt that, given the close-knit and family-like nature of the group, none of the others could have been kept ignorant of what happened to the body (at [129]-[130]). The sentencing judge had not wholly rejected the applicants' remorse but had reduced the weight given to it, and the Court found no error in that approach (at [122], [132]).

Accumulation of sentences as a special circumstance

This ground succeeded. The sentencing judge found special circumstances and varied the statutory ratio for individual sentences to approximately 66.7 per cent. However, once the sentences were accumulated, the overall ratio of non-parole period to total term rose to 73.3 per cent, a reduction of only 1.7 per cent from the statutory 75 per cent (at [149]). The sentencing judge made no reference to this consequence. Bathurst CJ concluded, with some hesitation given the care otherwise evident in the judgment, that this omission showed the effect of accumulation had been overlooked (at [150]-[151]). The Court resentenced all four applicants, adjusting the manslaughter non-parole period from eight years to seven years and producing an overall non-parole period of ten years (at [217]-[220]).

Thomas's separate grounds: culpability, drug offences, Bugmy, and parity

The Court rejected the argument that Thomas's physical role in the joint criminal enterprise, primarily driving the car and guarding a bystander, reduced his moral culpability below that of his co-offenders. His role in the dangerous car chase that enabled the fatal assault, and in preventing intervention during it, was found to be vital to the enterprise (at [167]-[169]). On the drug offences, the Court confirmed that quantity alone is not determinative of objective seriousness, and the agreed facts supported treating the applicants as equally involved in the same flat-structure supply operation (at [183]). On the Bugmy ground, the Court found the sentencing judge had expressly considered Thomas's severely deprived background; the real complaint was about the weight given to it compared to co-offenders, which was a parity question rather than a Bugmy error (at [190]-[191]). On parity, the Court found no marked disparity giving rise to a justifiable sense of grievance, noting that all applicants had difficult backgrounds and that the subjective differences did not reach the threshold for appellate interference (at [199]-[202]).

Manifest excess

The Court found no manifest excess. It noted that manslaughter by unlawful and dangerous act attracts the widest sentencing range of any serious offence, and that the comparable cases relied upon by the applicants did not reflect the particular seriousness of the offending here (at [216]-[218]). The concealing a corpse offence was found to involve criminality not subsumed within the manslaughter sentence, and the fixed term of three years was confirmed (at [218]).

Orders Made

  • Leave to appeal granted for all applicants
  • Appeal allowed
  • Sentences quashed and the following imposed on each applicant:
  • Drug supply offence (s 25(2) Drug Misuse and Trafficking Act 1985): non-parole period of two years commencing 3 September 2015, expiring 2 September 2017; balance of term of one year expiring 2 September 2018
  • Concealing a corpse: fixed term of three years commencing 3 September 2016, expiring 2 September 2019
  • Manslaughter: non-parole period of seven years commencing 3 September 2018, expiring 2 September 2025; balance of term of five years expiring 2 September 2030

Key Takeaways

  • A factual finding that an applicant knew the location of a victim's body but refused to disclose it is an adverse finding that must be established beyond reasonable doubt before it can reduce the weight given to expressed remorse (at [124]).

  • Where a sentencing judge finds special circumstances and varies the statutory non-parole period ratio for individual sentences, the judge must also address the effect of any accumulation on the overall ratio. Failure to do so, leaving the overall ratio materially closer to the statutory default than the individual sentences suggest, may constitute an error warranting resentencing (at [149]-[151]).

  • Genuine remorse for a killing can properly be assessed as diminished where the offender, found to know the location of the victim's body, declines to disclose it to the victim's family. This was distinguished from the line of authority holding that failure to identify co-offenders in drug matters does not reflect on remorse (at [110], [122]).

  • In a joint criminal enterprise, equal sentences across participants are not necessarily erroneous even where individual physical roles differ, provided each participant's role was essential to the enterprise. The parity principle requires a marked and objectively unjustifiable disparity, not merely a difference in circumstances (at [167]-[169], [197]-[202]).

  • Quantity of drug supplied is a relevant but not determinative factor in assessing objective seriousness. Where co-offenders operate within a flat command structure supplying the same community, treating their drug offences as equally serious may be open to a sentencing judge even where quantities differ (at [183]).

Legislation and Cases Referenced

Legislation
- Coroners Act 2009 (NSW)
- Crimes Act 1900 (NSW)
- Crimes (Administration of Sentences) Regulation 2014 (NSW)
- Crimes ( Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- AB v R [2014] NSWCCA 339
- Azzopardi v R [2019] NSWCCA 306
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- Calhoun (a pseudonym) v R [2018] NSWCCA 150
- Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim 150
- Dawson v R [2013] NSWCCA 61
- Deakin v The Queen (1984) 58 ALJR 367; [1984] HCA 31
- Elwood v R [2019] NSWCCA 315
- GP v R [2017] NSWCCA 200
- Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49
- Hili v R (2010) 242 CLR 520; [2010] HCA 45
- Hordern v R [2019] NSWCCA 138; (2019) 278 A Crim R 353)
- Johnson v R [2010] NSWCCA 124
- Kliendienst v R [2020] NSWCCA 98
- Lloyd v R [2017] NSWCCA 303
- Lowe v R (1984) 154 CLR 606; [1984] HCA 46
- Mulato v R [2006] NSWCCA 282
- Pham v R [2010] NSWCCA 208
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
- R v Aljubouri [2019] NSWSC 180
- R v Bryant [1999] NSWCCA 181
- R v Davis (1942) 42 SR (NSW)
- R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
- R v Heffernan (1951) 69 WN (NSW) 125
- R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
- R v Lavender (2005) 222 CLR 67; [2005] HCA 37
- R v Merrick (No 5) [2016] NSWSC 661
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Simpson (1992) 61 A Crim R 58
- Ramos v R [2015] NSWCCA 313
- Sabongi v R [2015] NSWCCA 25; (2015) 249 A Crim R 167
- Spark v R [2012] NSWCCA 140
- Wong v R (2001) 207 CLR 584; [2001] HCA 64