Bentley v R; Davies v R; Thomas v R; Tilley v R [2021] NSWCCA 18

Bentley v R; Davies v R; Thomas v R; Tilley v R [2021] NSWCCA 18 · Read the judgment on AustLII

Catchwords: Sentencing – Remorse – Onus of proof

In this unusual case the Court of Criminal Appeal (‘CCA’) has considered the onus of proof in relation to remorse. The overall onus lies upon the offender, on the balance of probabilities, to establish genuine remorse. But where there is a factual issue which might demonstrate an absence of genuine remorse, that must be proven by the prosecution beyond reasonable doubt.

The various applicants were drug dealers who killed another drug dealer with whom they had had a falling out. They then formed a joint criminal enterprise to hide the crime – and the deceased’s body. They loaded the body into a car, then disposed of the body, and cut up the pieces of the car and disposed of those as well. Neither the pieces of the car nor (crucially) the deceased’s body were ever found. All the applicants were variously charged with manslaughter, concealing a corpse, and drug supply offences involving varying amounts of methylamphetamine. They all pleaded guilty – albeit that plea was after two trials for murder where each jury had been unable to reach a verdict. On sentence, each applicant provided evidence in some form purporting to demonstrate remorse. The sentencing judge noted that the fact the deceased’s body was unlocated was relevant and limited the weight that could be given to the claims of remorse. Each of the offenders was sentenced to an aggregate sentence of 15 years, with a non-parole period of 11 years. They each appealed. There were various grounds, of which only one (raised by three of the applicants) is dealt with in this summary. That ground asserted that the failure to disclose the location of the deceased’s body was erroneously used by the judge to increase their sentence, insofar as it was said to demonstrate a lack of genuine remorse.

The issue gave rise to this question: Did the Crown need to prove (beyond reasonable doubt) that the various offenders were failing to disclose the location of the body? Or did the various accused need to demonstrate (on the balance of probabilities) that they did not know the location of the deceased’s body?

In the present case the CCA (Bathurst CJ; N Adams J agreeing, with some additional remarks; Ierace J agreeing with both) rejected this ground, but allowed the appeal on a ground not discussed in this summary.

The sentencing judge treated the fact that the location of the body was unknown – as distinct from the failure of the applicants to disclose its whereabouts – as a matter increasing the objective seriousness of the conceal corpse offence (at [119]). The onus of proof in the context of remorse in these circumstances is a question of some difficulty. On the one hand, a finding that the applicants knew the location of the body but failed to disclose it is a finding adverse to the offender. Such a finding needs to be proven beyond reasonable doubt. On the other hand, because it is only relevant to remorse (that is, a factor in mitigation), it could be argued that it is for the applicants to establish on the balance of probabilities that they were not aware of the location of the body (at [123]). 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 so needs to be established beyond reasonable doubt (at [124]). In this case there was an underlying issue about whether the applicants had talked amongst themselves about where Davies disposed of the body (Davies had given a version – found to be unconvincing – about leaving the body in a tool box in a car which was then crushed at a scrapyard). It was open to the sentencing judge to conclude that it was not believable that Davies had not told the other applicants how he disposed of the body – they were a close-knit group who considered themselves to be a family (at [130]).

This case obviously presents a pretty unique factual scenario, but the question of remorse comes up in almost every matter. In more pedestrian circumstances, practitioners need to be careful to draw distinctions between the finding of remorse itself (the onus for which is on the offender, on the balance of probabilities), and factual findings which might be said to positively demonstrate a lack of remorse (the onus for which is on the prosecution, beyond reasonable doubt).