Citation: Bentley v R; Davies v R; Thomas v R; Tilley v R [2021] NSWCCA 18
Court: NSW Court of Criminal Appeal
Date: 26 February 2021
Judge(s): Bathurst CJ; N Adams J; Ierace J
Background
Four co-offenders, acting in a joint criminal enterprise, assaulted a man at his premises in South Windsor on 31 March 2015. The assault resulted in the victim's death from severe injuries. All four applicants pleaded guilty to manslaughter by unlawful and dangerous act, concealing a corpse, and separate but related drug supply offences, including supply of a commercial quantity of methylamphetamine.
After the killing, the applicants transported the victim's body and later disposed of it. The body was never found. The destroyed vehicle used to transport the body was also never recovered.
At first instance, each applicant was sentenced to 15 years' imprisonment with a non-parole period of 11 years and a balance of term of four years. All four sought leave to appeal against their sentences on several grounds.
Legal Issues
- Whether the sentencing judge erred in finding that the applicants knew the location of the victim's body but chose not to disclose it, and in rejecting their claims of remorse on that basis
- Whether the sentencing judge failed to properly account for the cumulative effect of accumulated sentences when finding and applying special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Whether the sentences imposed for manslaughter and concealing a corpse were manifestly excessive
- Whether one applicant (Thomas) received a disproportionately high sentence relative to his culpability, given his lesser physical role and more significant subjective case
Decision
Knowledge of the body's location and remorse
The Court confirmed that the sentencing judge had not treated the unknown location of the body itself as a distinct aggravating factor. Rather, his Honour treated the applicants' failure to disclose the location, in circumstances where they knew it, as the matter that increased the objective seriousness of the concealment offence. The Court held this approach was consistent with authority.
The Court affirmed that, while it is for an offender to demonstrate remorse, any factual finding that tends to demonstrate a lack of remorse is adverse to the offender and must be established beyond reasonable doubt. The sentencing judge was satisfied beyond reasonable doubt that it was unbelievable Davies had not told the others where or how he disposed of the body, making the finding that all four applicants knew the location open on the evidence. The rejection of full credit for remorse therefore stood.
Accumulation and special circumstances
The Court accepted that the cumulative effect of accumulated sentences can constitute special circumstances warranting a variation to the statutory ratio under s 44(2), which prescribes that the non-parole period should be no more than three-quarters of the total sentence. The sentencing judge had found special circumstances and purported to vary the ratio to a "moderate" extent. However, the resulting ratio between the non-parole period and the total sentence was 73.3 per cent, only 1.7 percentage points below the statutory ratio. The Court found this was not a moderate variation and bore no resemblance to the ratio applied to the individual sentences. The sentencing judge had overlooked this, constituting a sentencing error.
Manifest excess and parity
The Court rejected the manifest excess grounds. The manslaughter was described as a most serious offence, and the sentence of 12 years (after a 10 per cent plea discount) was appropriate. The concealment offence warranted a fixed term of three years, reflecting its capacity to obstruct justice and prevent the victim's family from laying him to rest. Thomas's argument that his lesser physical role and more difficult background warranted a lower sentence was rejected. His role in the enterprise was crucial, the differences in subjective circumstances were not significant, and the Bugmy principles did not, in the circumstances, require a further reduction in moral culpability. On re-sentence, all four applicants received 15 years' imprisonment with a non-parole period of 10 years and a balance of term of five years.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Court of Criminal Appeal confirmed that the cumulative effect of accumulated sentences can constitute special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), but a purported "moderate" variation that produces only a 1.7 per cent reduction from the statutory ratio is insufficient to reflect that finding properly.
- A factual finding that tends to demonstrate an absence of remorse is adverse to the offender and must therefore be established by the prosecution to the criminal standard, beyond reasonable doubt, even though the onus lies on the offender to establish remorse as a mitigating factor.
- Sufficient evidence existed to support the inference that all four applicants knew the location of the victim's body, making the rejection of full remorse credit open to the sentencing judge.
- Under the Bugmy principles, full weight must be given to an offender's deprived background at every sentencing, but that does not automatically reduce moral culpability in every case. Such a background may be accounted for in other ways through the process of instinctive synthesis.
- In joint criminal enterprise cases, parity of sentence does not require mathematical equivalence between co-offenders. Where each participant had an assigned and crucial role, the sentencing court is not required to impose lesser sentences on those who played a less direct physical role.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly s 44(2)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Coroners Act 2009 (NSW)
- Crimes (Administration of Sentences) Regulation 2014 (NSW)
Cases
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Calhoun (a pseudonym) v R [2018] NSWCCA 150
- AB v R [2014] NSWCCA 339
- Azzopardi v R [2019] NSWCCA 306
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Lowe v R (1984) 154 CLR 606; [1984] HCA 46
- Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49
- Dawson v R [2013] NSWCCA 61
- Elwood v R [2019] NSWCCA 315
- Hili v R (2010) 242 CLR 520; [2010] HCA 45