R v Nicholas Joseph McCulloch; R v Benjamin Biffin; R v Andrew Biffin
[2013] NSWSC 894
•05 July 2013
Supreme Court
New South Wales
Medium Neutral Citation: R v Nicholas Joseph McCULLOCH; R v Benjamin BIFFIN; R v Andrew BIFFIN [2013] NSWSC 894 Hearing dates: 9, 11/04/2013, 15/05/2013 Decision date: 05 July 2013 Jurisdiction: Common Law - Criminal Before: Rothman J Decision: Nicholas McCulloch
Sentenced to a non-parole period of 3 years and 4 months, commencing 28 January 2011 and concluding 27 May 2014, with a remainder of sentence of a further 3 years and 4 months, concluding 27 September 2017. First eligible for parole on 27 May 2014.
Benjamin Biffin
Sentenced to a non-parole period of 3 years and 7 months, commencing 21 June 2010 and concluding 20 January 2014, with a remainder of sentence of a further 3 years and 6 months, concluding 20 July 2017. First eligible for parole on 20 January 2014.
Andrew Biffin
Sentenced to a non-parole period of 2 years and 11 months, commencing 24 January 2011 and concluding 23 December 2013, with a remainder of sentence of a further 2 years and 11 months, concluding 23 November 2016. First eligible for parole on 23 December 2013.
Catchwords: CRIMINAL LAW - sentence - manslaughter - joint criminal enterprise - no issue of principle - special circumstances - sentence imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: Berrier v R [2009] NSWCCA 40
Hill v R (1981) 3 A Crim R 397
R v Blacklidge (Court of Criminal Appeal, 12 December 1995, unreported)
R v Dodd (1991) 57 A Crim R 349
Salah v R [2009] NSWCCA 2
Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465Category: Sentence Parties: Regina
Nicholas Joseph McCulloch
Benjamin Biffin
Andrew BiffinRepresentation: Counsel:
J McLennan (Crown)
P Young SC (N McCulloch)
C Bruce SC (B Biffin)
D Yehia SC (A Biffin)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid Commission (N McCulloch)
Anderson Randall (B Biffin/A Biffin)
File Number(s): 2010/154656; 2010/154663; 2010/154829 Publication restriction: None
REMARKS ON SENTENCE
HIS 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.
For 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
The 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.
The 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.
Late 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.
Some 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.
At 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.
On 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).
The 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.
Of 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.
One 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.
The 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.
There 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.
One or more of them, who is or are unknown, used a level of force which caused an appreciable risk of serious bodily harm.
Nevertheless, 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.
Mr 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.
Further, 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.
Leaving 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.
It 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.
It 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.
Circumstances relating to the individuals
Andrew Biffin
Andrew Biffin was born in Mudgee on 20 November 1981 and was at the time of the sentence proceedings 31 years of age. As is probably obvious, he is the younger brother of Benjamin Biffin, who is also required to be sentenced for this offence.
Andrew Biffin never met his biological father, his mother having entered into a relationship with the person whom he regarded as his father while Andrew (and Benjamin) were very young. He also has two older stepsisters through his stepfather and two younger half siblings from the relationship between his mother and his stepfather.
Andrew Biffin was raised on a property in Wollar. His father was a farmer and his mother worked, from time to time, in aged care and other such employment. When a teen, Andrew Biffin relocated to Raymond Terrace. He left home at the age of 14 years and resided with a friend. He later relocated to Mudgee and other places.
Andrew Biffin discovered that his stepfather was not his biological father at the age of 22, when he was required to deal with his birth certificate to arrange identification. He described, to a psychologist, that this was "a slap in the face" and made him feel angry, resentful and upset. Andrew Biffin told the psychologist that it was in response to this information and these feelings that he rebelled and used illicit substances in larger amounts.
Andrew Biffin did not give evidence on sentence. Benjamin Biffin, in his affidavit, described the stepfather as a disciplinarian and a "hard man".
Not surprisingly, for a person who left home at 14 years of age, Andrew Biffin had a number of relationships, some displaying significant instability.
He has a child by an early relationship who is 10 years of age and lives with her mother. The relationship between Andrew Biffin and the mother was never intended to be a "committed relationship". Andrew Biffin used illicit substances from an early age as his record discloses.
Over and above that relationship, Andrew entered into a longer term relationship at the age of 16. From that relationship there were two children, now aged 13 and 11 respectively, the first of them born when Andrew Biffin was 17 years of age. The couple separated shortly after the birth of the second child, which separation Andrew blames for further increased illicit substance abuse and antisocial activities.
Andrew Biffin is currently in a relationship which has subsisted over the last seven years with a person named Kristy. She has given a character reference for Andrew, as has her father. They have two sons aged 6 and 2 and their relationship is described by each of them as positive and close.
Andrew Biffin completed primary school at Mudgee having commenced at Wollar. He described himself as not fitting in at Mudgee. He attended Mudgee High School and was expelled during his second year for persistent poor behaviour and fighting. Andrew describes himself as having suffered ADHD, being frequently in trouble and his behaviour resulting in poor academic achievement. Andrew completed a TAFE course in welding and automotive studies and obtained a forklift licence, including tickets in traffic control, occupational health and safety and the like.
As earlier stated he worked on his parents' property and had worked in various positions, the longest of which was approximately 12 months in duration.
Notwithstanding his belief that he suffered ADHD as a child, he denies any ongoing symptoms of the disorder. He also denies any history of mental health related illnesses.
He commenced using cannabis at the age of 13 and, within a short time, was using on a daily basis. He has not used cannabis in 18 months. He has also used amphetamines regularly and depended upon it, but has not used since the commencement of the relationship with Kristy. Andrew also recounts the use of ecstasy and ice, heroine and cocaine. Andrew Biffin consumes alcohol regularly and, while he drank daily immediately after being released into bail, he has now reduced his intake to between one and two drinks, on average, per week, apart from "social bingeing".
Andrew Biffin has a criminal history which, apart from the possession of an illegal weapon, is generally confined to drug offences (possession) and driving whilst disqualified. The offences for which Andrew Biffin has been convicted are, it seems, offences in which drug and alcohol played a significant role.
The psychologist's report dealt with the associated behavioural problems caused by the ADHD and the reduction of symptoms, the effect of relocation on the developing adolescent and of substance abuse. Andrew Biffin told the psychologist, which statement was correct, that he had been significantly affected by substances at the time of the offence.
The psychologist records that Andrew Biffin did not attempt to minimise responsibility for his involvement or blame his actions on his use of substances. Andrew Biffin expressed to the psychologist that he was sorry for his participation in the criminal enterprise and for "even being there". He expressed remorse to the victim's family, and acknowledged responsibility given his decision to join in the criminal enterprise upon which the co-offenders had embarked. As stated, Andrew Biffin did not give evidence.
Andrew Biffin has ceased using illicit substances since his arrest. The Court has seen pathology results from a number of urine screen tests that, together with other evidence, corroborate this aspect of his rehabilitation. In the words of the psychologist:
"[Andrew Biffin] evidenced unprompted remorse for his involvement, the death of the victim, and for the victim's family. For Andrew the offence and his resultant incarceration appear to have been a salutary experience. He is utilising this to gain control over his lifestyle and make the necessary changes to improve his future prospects. Based on the client's presentation at interview, obtained historical information, as well as information obtained from people known to Andrew, he appears to have matured considerably as a result of this experience.
Andrew reports having ceased all illicit substance use since his arrest. ... Andrew has however continued drinking and although this also appears to be in a more controlled manner at present, he would benefit from assistance to ensure this does not become problematic again in the future. Treatment in the form of a drug and alcohol program is recommended to assist Andrew to develop appropriate relapse prevention skills for both alcohol and illicit substances.
Despite the negative circumstances that have prompted these changes, it is extremely positive that Andrew has regained close connections with family members and now has their support. He has plans in place for the future and a position of employment available to him. He has the ongoing support of what appears to be a pro-social partner and has taken positive steps to cease antisocial associations. ... Psychometric assessment indicates he is suffering from Mild symptoms of depression. This is likely reactive to current circumstances. ....
... Andrew's intelligence level is within the Average range, suggesting amenability to treatments. The success of any interventions will be dependant upon Andrew's motivation to engage in these. Should he resume substance use or contact with antisocial associates he will be at greater risk for relapse and recidivism."
The psychologist recommends vigilance by Andrew himself, attendance in a program aimed at addressing problematic substance abuse (both illegal substances and alcohol), being one that incorporates an educational component. These are available, it is said, in correctional centres and in community based programs. The psychologist also recommends a period of psychotherapy to enhance coping skills and "close and consistent monitoring by Probation and Parole" within the community including ongoing urine drug screening.
There is no doubt that Andrew Biffin enjoys the support of many in the community. His mother gave evidence on his behalf, as did his stepfather, his partner, an ex-partner (and mother of two of his other children) and his de facto spouse's father, who also offers him employment once he is released from incarceration.
I accept, notwithstanding the absence of direct evidence from Andrew Biffin, that he has some remorse for his conduct. I do not accept that it is at the level that it could be. I take that view because his responsibility for that which occurred was relatively late and his expression of remorse concerns the effect of his conduct, more than the conduct itself.
Nevertheless, I pay significant regard to the level of remorse that has been displayed and to the features of his rehabilitation, which are evident. His rehabilitation is nowhere near complete and he must also obtain insight into the abuse of alcohol, as well as the abuse of illicit substances.
I accept that the need for longer supervision than would ordinarily occur, even with a substantial sentence, is sufficient to warrant a finding of special circumstances. I also accept, as was put by counsel for Andrew Biffin, that he is, to some extent at least, at the "crossroads", warranting the structure of a sentence that is unusual but allows the rehabilitation that he has undertaken for himself to be continued, either immediately or after any sentence that I impose is completed.
Lastly, I refer to the fact that Andrew Biffin committed this offence on 26 March 2010 in circumstances where he was significantly affected by drugs, which I take into account to his benefit, particularly in circumstances where he has taken the significant step of ceasing his use of such substances. He was arrested on 21 June 2010 and remained in custody until 8 December 2011. On 21 December 2011 he was released into bail, the conditions of which included home detention and I will make an allowance for that home detention in the starting date of the sentence that I shall impose.
Benjamin Biffin
The family circumstances associated with Andrew Biffin are, necessarily, as relevant to Benjamin Biffin as they were to Andrew. I do not repeat them. Likewise, I also take into account the support given Benjamin by his mother and stepfather. Further, Benjamin Biffin enjoys the support of a former partner, slightly older than he is, who explains much about the issues and history of the offender. Benjamin Biffin is the older of the two offender brothers and they have been in contact only intermittently.
Further to that which has been explained in relation to Andrew Biffin, Benjamin Biffin recalls a bowl of cannabis and a bong being a feature of the kitchen table in their family home. Benjamin Biffin started smoking cannabis in Year 7 and stealing it from his stepfather and taking it to school. As a consequence he became very popular with the wrong crowd.
When his stepfather found out about the stealing of the cannabis, his method of "risk reduction" was to require Benjamin to smoke the cannabis with the stepfather, so that the stepfather could keep an eye on him. Benjamin Biffin was 13 at the time.
Benjamin Biffin was in trouble with the law over a significant period. His criminal conduct (apart from the smoking of the cannabis) commenced in Year 7 when he truanted from most of his classes and, with a number of associates, began stealing cars.
Benjamin Biffin was arrested for the first time in 1995, at the age of 15, and thereafter he continued to offend and spent time in Minda Detention Centre from just before his 16th birthday. On his release, he returned to school and stole the Principal's car. It was intended to be a "muck up day prank", but Benjamin was suspended from school.
Benjamin Biffin kept leaving home and came into significant conflict with his stepfather over his behaviour. When, at the age of 15, he discovered that his stepfather was not his biological father, he refused to take direction from him. At that time he was smoking cannabis every day for significant portions of the day. He continued to be the subject of juvenile detention, which was the only place at which he received schooling. He completed his School Certificate at Mount Penang Detention Centre.
At the age of 17 he met and formed a relationship with his first partner. She was more than five years older than he was and had a five-year-old son. Benjamin Biffin moved in with her, to which his parents objected, and thereafter communications between Benjamin and his parents ceased completely.
The relationship with his first partner lasted 10 years during which time Benjamin Biffin and his partner had two children. She attests to the support that he gave her through an extremely troubling time and as a result of which they formed, and still have, a very strong bond.
Despite his partner's attempts to control his offending, and despite a relatively stable domestic relationship during that period, Benjamin Biffin still continued to offend, although not to the degree that he had previously been offending.
In 2001, having participated in the stealing of a car, he was involved in an accident. He was a passenger and thrown through the back window of the car and seriously injured. Another passenger was killed. Benjamin Biffin took about six months to recover from injuries, after which he was sentenced to gaol for the offence.
After his release, Benjamin Biffin continued to use cannabis and continued to offend. He had used other drugs, but only socially. The relationship with his first partner ended because of the periods Benjamin Biffin spent in prison, although he still has contact with her and the children. He tried to reduce or cease smoking cannabis unsuccessfully and attended a drug and alcohol course for that purpose in custody. On his release after that period of custody, he commenced abusing alcohol.
Benjamin Biffin was drinking alcohol every day and that was the situation during the period that the offence for which he is now being sentenced was committed. The consumption of alcohol was more than significant.
Benjamin Biffin commenced a new relationship approximately two years before the offence in question. They commenced living together approximately 12 months before the offence and, at the time of the offence, his then partner was pregnant. The relationship no longer subsists.
On his 21st birthday Benjamin Biffin met his biological father. He was an alcoholic and, at the time of sentencing, was on dialysis and terminal from kidney and liver failure. Benjamin Biffin expresses the view that he wishes to give up drugs and alcohol and has researched rehabilitation programs that may be available to him after he completes his sentence. Since being in custody he has completed a welding certificate and a metal fabrication certificate and he has shown a desire to obtain the skills to be employed and has undertaken the work necessary to obtain those skills.
Benjamin Biffin gave evidence. His evidence in chief was by affidavit and, even though he was not subject to cross-examination, made himself available for that purpose. He has accepted responsibility for the conduct in question and has shown, in his evidence, a realistic, believable and significant level of contrition both as to the effect on Mr Ogilvie, the effect on Mr Ogilvie's family and likening it to the effect that losing one of his own children would have on him.
As indicated earlier in this discussion, Benjamin Biffin has a significant criminal record, both as a juvenile and as an adult. It includes stealing; illegal use of motor vehicles; break, enter and steal; malicious damage to property; stealing from a dwelling; possession of prohibited drugs and equipment for administering drugs; assault occasioning; domestic violence offences; common assault; breaches of community service orders; driving whilst disqualified; driving in a manner dangerous and the like. His record includes acts of dishonesty and acts of violence, but I accept that his drug and alcohol abuse was a significant factor in his offending. Nevertheless, one cannot be as confident of his capacity for rehabilitation and one must take account of the need for general and specific deterrence to a level significantly greater than would otherwise be the case were there no criminal record.
Having said that, I accept, in relation to Benjamin Biffin, that there are prospects of rehabilitation, particularly given what seems to be an attitudinal change to his abuse of alcohol and drugs. That changed attitude needs as much support as possible and I accept, also, in relation to Benjamin Biffin, and notwithstanding the need for condign punishment, the need for significant supervision by Probation and Parole for a period longer than might otherwise have been available. I also find special circumstances in relation to Benjamin Biffin.
Benjamin Biffin was arrested on 21 June 2010 and has been incarcerated, on remand, since that date. That period will be taken into account in determining any sentence imposed. The offence was committed while Benjamin Biffin was on conditional liberty, being a bond to be of good behaviour, which is an aggravating circumstance in the fixing of any sentence.
Nicholas McCulloch
Nicholas McCulloch was born in Brisbane in 1986 and was 23 at the date of the offence.
Nicholas McCulloch's early life involved living with his parents, with his father a member of the armed forces. His father now works in another career, is suffering lung cancer and undergoing chemotherapy.
The time spent with his father was intermittent, his parents having separated at or soon after Nicholas McCulloch's birth. He has one sister.
Nicholas McCulloch became involved in drugs from the age of 13. He was involved in criminal activity and was in a juvenile detention centre for periods during his youth.
Like his co-offenders, he was educated at high school in Mudgee, in Nicholas McCulloch's case until Year 8. At that stage he was expelled for truancy. He was an average student.
Nicholas McCulloch has done a number of TAFE courses, not all of which he has completed, and is currently doing a personal training course which he has not yet completed. He completed the first two modules whilst in prison and wishes to complete modules 3 and 4. He would like to study biometrics.
Apart from his drug abuse, his childhood seems relatively uneventful. He has, from the appropriate age, received social security throughout his life although, from time to time, he has done casual work of a labouring kind, either in concreting or agricultural work.
Nicholas McCulloch smokes cigarettes. He also smoked cannabis on a daily basis. He was a binge drinker until his last release from prison after which time he drank socially only. He stopped using cannabis prior to the current charge because he wanted to join the Army.
Nicholas McCulloch had, or seems to have had, ADHD as a child. He spent three or four weeks in a psychiatric hospital after blacking out in court after an angry outburst. He has been diagnosed with conduct disorder, potential deficit hyperactive disorder and drug and alcohol abuse disorders, the last of them mainly from the use of ecstasy.
He has had two serious relationships. The first with a person who was lacking in psychological stability and had a child to a friend while Nicholas McCulloch was incarcerated for a past offence.
In the past six months, he has been in a serious relationship with a person he has known since childhood. He considers that that relationship has stabilised his life. He seems committed to her as was the opinion of his psychologist and does not want to lose her. She has informed him that she will wait for his release but, given his history, perhaps understandably, he is worried about the effect of incarceration on his relationship.
Nicholas McCulloch expressed remorse to his psychologist. He is currently depressed, but is not using cannabis. He has also stopped binge drinking, in which he was participating at the time this offence was committed.
His psychologist indicated that, on testing, he has superior verbal and performance intelligence, a mild level of depression and no clinically significant level of anxiety. The psychologist's opinion was that Nicholas McCulloch was suffering from a Mixed Personality Disorder with Antisocial and Addictive Traits and offers a relatively good prognosis on the basis of the alteration in his motivation since the time he formed his new relationship.
The psychologist opines that he would benefit from counselling and should study at tertiary level, given his intelligence testing. The psychologist describes his remorse as high, with good prospects for rehabilitation and, if there were counselling and a continued stable lifestyle, reduced chance of recidivism.
I consider that his remorse is at or about the same level as that shown by Andrew Biffin. I consider his prospects of rehabilitation good and that he, like Andrew Biffin, is somewhat at the crossroads, particularly because of the effect of his current relationship.
For similar reasons to those expressed in relation to Nicholas McCulloch's two co-offenders, I consider that there are special circumstances warranting a longer than usual or prescribed period in the community under the supervision of Probation and Parole.
Nicholas McCulloch's criminal history does not assist him. He has offences of violence and dishonesty. As a juvenile he was convicted of contraventions of apprehended violence orders; break and enter offences; and, as an adult with assault occasioning; common assault; stealing; break and enter; driving with a prescribed content of alcohol; custody of illegal weapon; and other such offences.
Consideration
As earlier stated each of the offenders pleaded guilty to manslaughter. Each was originally charged with murder. The Crown offered manslaughter, given the evidence that was available, which offer was accepted.
The plea of guilty to manslaughter was not made at the earliest possible time, but it did have a significant utilitarian value.
The plea was entered prior to the first day of trial (or indicated prior thereto) and was entered at a time which avoided a significant proceeding as to the separation of trials, the summonsing and empanelling of a jury and the organisation of witnesses to a hearing. Nevertheless, the plea was entered formally before the Court on the first day that otherwise would have been listed for trial and was indicated just prior to the day that the motion for separate trials was listed for hearing. A discount is appropriate for the plea. The discount should be the same for each of the co-offenders. The discount cannot be at the highest level, nor should it be at the lowest level. I allow a discount of one-sixth (16.67 per cent) on the sentence I would otherwise fix for the plea of guilty for each of the co-offenders.
Sentencing involves the resolution of conflicting goals: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. These goals overlap and cannot be considered in isolation from each other, even though they often point in different directions. In this case, given the circumstances of each of the offenders, with the possible exception of Benjamin Biffin, personal deterrence is not as significant as it might be, given the gravity of the offences and prior criminal conduct. Sentencing is, and must remain, an intuitive process.
The starting point for a consideration of the appropriate penalty, in this case as in others, is the assessment of the gravity of the objective circumstances of the case and an understanding that the offence involves the taking of human life. Whatever view one may take of the victim's lifestyle and conduct, he was entitled to live out his life and his family were entitled to his company. Even the sale and manufacture of drugs does not involve the right to take human life or the lessening of the value of human life.
As stated, the taking of a human life is serious, manslaughter is an extremely serious offence. It involves the felonious or unlawful taking of a human life and the legislature has fixed a maximum sentence of 25 years' imprisonment, to be imposed in the worst category of case. None of the co-offenders in this case deserve a sentence in the range for the worst category. There is no standard non-parole period. As already stated, the objective gravity of the offences put these offenders' conduct in the mid-range of culpability, or slightly above it, and their subjective features ameliorate the severity of any sentence that might be imposed as a consequence.
Nothing that is done by the Court can return Mr Ogilvie to his family. The circumstances that give rise to a conviction for manslaughter are so various, and the degrees of culpability so wide, that it is impossible to establish a sentencing tariff to be applied in all cases. Manslaughter throws up the greatest variety of circumstances affecting culpability: R v Dodd (1991) 57 A Crim R 349; Hill v R (1981) 3 A Crim R 397; R v Blacklidge (Court of Criminal Appeal, 12 December 1995, unreported); Salah v R [2009] NSWCCA 2; Berrier v R [2009] NSWCCA 40.
As earlier stated, sentencing involves the resolution of sometimes conflicting goals: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. These purposes overlap and cannot be considered in isolation from each other, even though they often point in different directions: Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 476, per Mason CJ, Brennan, Dawson and Toohey JJ.
In the case of each of the offenders, I consider that they have, as already stated, good prospects of rehabilitation, notwithstanding, in the case of Benjamin Biffin and Nicholas McCulloch, prior criminal convictions involving violence and dishonesty.
In the case of Andrew Biffin, I consider that he is a person truly at the crossroads, although there are aspects of such a feature in each of the co-offenders.
Nevertheless the offence is a serious one. A full time custodial sentence is appropriate. Each of the co-offenders have, to greater or lesser extent, already served some part of a full time custodial sentence and in the case of Andrew Biffin, as already stated, home detention for a significant period. In the case of Nicholas McCulloch he has been in full time custody and on bail with extremely restricted conditions. In relation to Andrew Biffin I allow 60 per cent of the time spent in home detention as a period of incarceration (see Renshaw v R [2012] NSWCCA 91) and in the case of Nicholas McCulloch I allow one-third of the time spent on bail as a period of incarceration.
The sentences to be imposed, after the discount, as aforesaid, for the plea of guilty, and taking into account all of the objective and subjective factors referred to above and which have been the subject of submissions, are for Andrew Biffin a head sentence of 5 years and 10 months; for Nicholas McCulloch a head sentence of 6 years and 8 months; and for Benjamin Biffin a head sentence of 7 years and 1 month.
Nicholas McCulloch
Nicholas McCulloch, please rise.
You are convicted of manslaughter in that on or about 26 March 2010 at Bilambil in the State of New South Wales you did unlawfully kill Luke Charles Ogilvie.
I sentence you to a non-parole period of 3 years and 4 months, commencing 28 January 2011 and concluding 27 May 2014, with a remainder of sentence of a further 3 years and 4 months, concluding 27 September 2017. You are first eligible for parole on 27 May 2014.
Benjamin Biffin
Benjamin Biffin, please rise.
You are convicted of manslaughter in that on or about 26 March 2010 at Bilambil in the State of New South Wales you did unlawfully kill Luke Charles Ogilvie.
I sentence you to a non-parole period of 3 years and 7 months, commencing 21 June 2010 and concluding 20 January 2014, with a remainder of sentence of a further 3 years and 6 months, concluding 20 July 2017. You are first eligible for parole on 20 January 2014.
Andrew Biffin
Andrew Biffin, please rise.
You are convicted of manslaughter in that on or about 26 March 2010 at Bilambil in the State of New South Wales you did unlawfully kill Luke Charles Ogilvie.
I sentence you to a non-parole period of 2 years and 11 months, commencing 24 January 2011 and concluding 23 December 2013, with a remainder of sentence of a further 2 years and 11 months, concluding 23 November 2016. You are first eligible for parole on 23 December 2013.
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Decision last updated: 12 July 2013
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