R v Nicholas Joseph McCULLOCH; R v Benjamin BIFFIN; R v Andrew BIFFIN

REMARKS ON SENTENCE 1HIS HONOUR: On 21 June 2010, each of Benjamin Biffin, Andrew Biffin and Nicholas McCulloch were arrested and charged as a result of the death of Luke Ogilvie (hereinafter, "Mr Ogilvie", "the deceased" or "the victim"). Each was originally charged and arraigned for murder. 2For reasons, which will become obvious when the relevant facts are understood, the Crown offered to accept a plea to manslaughter in full satisfaction of the indictment and, on or just before the date of trial, each offender pleaded guilty to manslaughter. It is necessary to sentence each of them.

The circumstances of the offence 3The facts are agreed. The deceased was born in 1959 and, at the time of his death, lived on a rural property in Bilambil Heights, on the north coast of New South Wales. He used, supplied and manufactured amphetamines. His property was used in that manufacturing process and surveillance cameras had been installed that could be monitored by the deceased through close circuit television. 4The deceased was known to a fourth person, an associate of the co-offenders, who has been tried separately and sentenced for his role in the death of the victim. Mr Smith lived in Tweed Heads with his mother and girlfriend. His residence is approximately 11 kilometres from the deceased's property. Andrew Biffin and Mr McCulloch shared a residence, also in Tweed Heads, with their respective girlfriends. Benjamin Biffin, who also lived in Tweed Heads, had separate premises occupied by another couple who played no relevant part in these events. 5Late in the evening of 25 March 2010, the three offenders were at Mr Smith's premises. There was a conversation, involving the four of them, in Mr Smith's bedroom, which conversation concerned the potential theft of money and drugs. Mr Smith nominated Mr Ogilvie as someone who would have money and drugs. Mr Smith agreed to show the offenders the deceased's premises. 6Some time after 1.00am on 26 March 2010, the three offenders and Mr Smith left together in a motor vehicle owned by the male partner of the couple with whom Benjamin Biffin resided. 7At the time that the offenders and Mr Smith agreed to steal the money and/or drugs, they believed or expected that Mr Ogilvie, the deceased, would not be at home. Each of the four young men consumed amphetamines before driving to Mr Ogilvie's residence. The amphetamines were supplied by Mr Smith. 8On arrival at the deceased's premises, the four young men, the three offenders and Mr Smith, drove into the front yard of the deceased's property. At that stage, Mr Ogilvie came out of his house to confront the intruders. A short distance from the entrance to his house, Mr Ogilvie was assaulted. The Crown case, accepted by the offenders, is that one or more of the offenders took part in the assault on Mr Ogilvie. The Crown cannot nominate which offender or offenders may have been involved (or may not have been involved). 9The three offenders each accept responsibility on the basis that each were a party to a joint criminal enterprise to steal money and/or drugs, the property of Mr Ogilvie, and the enterprise involved the use of force such that each offender contemplated that one or other of them might use a level of force which carried with it an appreciable risk of serious bodily harm. 10Of necessity, and arising from the plea, each of the offenders accept that the use of such force was an unlawful and dangerous act. Each of the offenders accepts that this assault was a substantial cause of the death of Mr Ogilvie, although, notwithstanding a post-mortem examination, a definite cause of death was unable to be ascertained. 11One of the reasons may be that the post-mortem revealed that the deceased, at the time of his death, had a serious heart condition, in that all three major coronary arteries were more than 80 per cent occluded. The expert forensic pathologist, qualified by the Crown, is of the opinion that this condition could have caused the deceased to die suddenly and unexpectedly at any time. 12The deceased's body was located at around 11.00am on 26 March 2010. Subsequently, the victim's blood was located on paving stones and on the front offside of the deceased's motor vehicle, just a short distance from the entrance to his house. The police investigation revealed that a quantity of property belonging to the deceased was taken from his premises, including a Harley Davidson motorcycle, a small safe containing only monopoly money and a television set. The safe was later recovered from the premises occupied by Benjamin Biffin. 13There are a number of obvious aspects to the foregoing that require particular comment. First, three (or possibly four) persons attacked Mr Ogilvie in his own home. Four of them arrived there for the purpose of stealing his property and, once confronted by him, the three offenders (at least) carried out their agreement, being to steal money and use such force as was necessary. 14One or more of them, who is or are unknown, used a level of force which caused an appreciable risk of serious bodily harm. 15Nevertheless, the three offenders are responsible as participants in a joint criminal enterprise for the use of the force, in circumstances where it was contemplated that one or other of them might use a level of force, which carried with it an appreciable risk of serious bodily harm and which level of force was a substantial cause of the death of Mr Ogilvie. 16Mr Ogilvie was faced with an overwhelming number of persons creating significant issues associated with his safety in his own home. Each of the foregoing are factors going to the objective seriousness of the offence and I take them into account in that way. Once I take them into account in that way I do not also treat them as aggravating factors pursuant to the terms of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. 17Further, the agreement between the three offenders was to steal money and that agreement involved the use of force, to the extent necessary. As such, it seems to me that the force used (albeit not the force which carried with it an appreciable risk of serious bodily harm) was a planned activity committed for financial gain. 18Leaving aside factors that relate to each one of the individual offenders, the objective circumstances of the offence put the offence above mid-range of manslaughter offences, but not in the worst category. Even though the offenders expected that Mr Ogilvie would not be home, they had the opportunity, when they arrived in his front yard, were still in the car, and saw Mr Ogilvie, to depart the premises and not carry forward their original intent. 19It is difficult to imagine the application of force in such circumstances not carrying with it an appreciable risk of serious injury. Each offender is responsible for the acts of the others in such a joint criminal enterprise and the fact that the Crown cannot identify which of the three offenders inflicted the level of force that carried an appreciable risk of serious injury does not mean that all three of them are not responsible for the criminal conduct. 20It does, however, mean that none of the offenders can be sentenced on the basis that it was that offender who inflicted the injuries that were the substantial cause of the death of Mr Ogilvie. It is for that reason that the objective gravity of the offence is at or above the middle range. If the Court were able to sheet home responsibility to one or more individuals for the occasioning of their violence, in a direct sense, the offence would be well above the middle range of objective gravity for that particular offence.