Citation: R v McCulloch; R v Benjamin Biffin; R v Andrew Biffin [2013] NSWSC 894
Court: Supreme Court of New South Wales
Date: 5 July 2013
Judge: Rothman J
Background
Three offenders, Nicholas McCulloch and brothers Benjamin and Andrew Biffin, were originally charged with murder following the death of a man at his rural property at Bilambil Heights on the New South Wales north coast in March 2010. A fourth associate had separately been tried and sentenced for his role. The Crown accepted pleas of guilty to manslaughter from all three in full satisfaction of the indictment.
In the early hours of 26 March 2010, the three offenders and their associate drove to the deceased's property intending to steal money and drugs, believing the occupant would not be home. When the deceased came outside to confront them, an assault took place. The Crown was unable to identify which of the offenders inflicted the force that caused or contributed to death. Forensic examination also revealed the deceased had severe coronary artery disease, which could have caused sudden death independently at any time.
Each offender pleaded guilty on the basis of participation in a joint criminal enterprise to steal property, an enterprise that involved the use of force and in which each offender contemplated that one or more participants might use a level of force carrying an appreciable risk of serious bodily harm. The agreed facts confirmed that this assault was a substantial cause of the deceased's death, even though a definite cause of death could not be ascertained at post-mortem.
Legal Issues
- What was the objective seriousness of the manslaughter offences, given the joint criminal enterprise framework and the inability to identify who directly caused death?
- What weight should be given to each offender's individual subjective circumstances, including background, criminal history, plea, remorse, and prospects of rehabilitation?
- Whether special circumstances existed justifying a variation to the standard non-parole period ratio (that is, the proportion of sentence that must be served before eligibility for parole)?
- How pre-sentence custody and periods of home detention or restricted bail conditions should be taken into account in calculating each sentence.
Decision
Rothman J assessed the objective gravity of the offences as above the mid-range of manslaughter, though not in the worst category. The court identified several aggravating features: the offenders attacked a man at his own home; there were three or four of them against one; the enterprise was planned and motivated by financial gain; and the offenders had an opportunity to leave when they arrived and saw the deceased outside, but did not. The absence of an identifiable individual who delivered the fatal force kept the offences from being placed higher on the scale of objective gravity.
The court acknowledged that each offender was equally responsible for the acts committed within the joint criminal enterprise, regardless of who delivered the injurious force. However, because criminal responsibility derived from the enterprise rather than from direct causation, none of the three could be sentenced as though they personally inflicted the injuries that substantially caused death.
Rothman J considered the distinct subjective circumstances of each offender, including difficult personal histories, drug dependency, limited education, the early pleas of guilty, varying degrees of remorse, and prospects of rehabilitation. Special circumstances were found to exist for all three offenders, primarily because of the significant periods of rehabilitation and treatment required, justifying a lengthened parole period relative to the non-parole period. Discounts for the guilty pleas were applied to each sentence.
Pre-sentence detention was factored in differently for each offender. Andrew Biffin had served home detention, for which 60 per cent was credited as incarceration. Nicholas McCulloch had been on strictly conditioned bail, with one-third of that period credited. Benjamin Biffin had been in full-time custody from the date of arrest.
Orders Made
- Nicholas McCulloch convicted of manslaughter; sentenced to a non-parole period of 3 years and 4 months (commencing 28 January 2011, concluding 27 May 2014) and a remainder of 3 years and 4 months (concluding 27 September 2017); first eligible for parole 27 May 2014.
- Benjamin Biffin convicted of manslaughter; sentenced to a non-parole period of 3 years and 7 months (commencing 21 June 2010, concluding 20 January 2014) and a remainder of 3 years and 6 months (concluding 20 July 2017); first eligible for parole 20 January 2014.
- Andrew Biffin convicted of manslaughter; sentenced to a non-parole period of 2 years and 11 months (commencing 24 January 2011, concluding 23 December 2013) and a remainder of 2 years and 11 months (concluding 23 November 2016); first eligible for parole 23 December 2013.
Key Takeaways
- In a joint criminal enterprise, all participants bear criminal responsibility for force used within the scope of the enterprise, even where the specific individual who inflicted the fatal or serious force cannot be identified by the Crown.
- Where individual causation cannot be attributed directly, the sentencing court will not sentence any participant as though they personally delivered the fatal blow, which operates to limit the placement of the offences at the highest range of objective gravity.
- A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 can be justified where an offender requires an extended parole period to address rehabilitation needs, including long-standing drug dependency or limited education.
- Pre-sentence periods spent under restrictive conditions short of full-time custody, including home detention and heavily conditioned bail, may be credited against the sentence in partial measure, though the proportion applied differs depending on the nature of the restriction.
- Manslaughter committed as part of a planned, financially motivated home invasion, against an isolated victim overwhelmed by numbers, will ordinarily be assessed above the mid-range of objective seriousness for that offence.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 21A(2)
Cases
- 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 465
- Renshaw v R [2012] NSWCCA 91