New South Wales Supreme Court CITATION : R v Bikic [2001] NSWSC 571 CURRENT JURISDICTION: Comon Law Division FILE NUMBER(S) : SC 70204/99 HEARING DATE(S) : 22/05/01; 29/06/01; 02/07/01 JUDGMENT DATE : 6 July 2001 PARTIES : Regina (Crown) Nedjelko Bikic JUDGMENT OF : Hidden J at 1 COUNSEL : D Howard - Crown G. Nicholson QC - Bikic SOLICITORS : Solicitor for Public Prosecutions - Crown Susan N Goodsell - Bikic CATCHWORDS : CRIMINAL LAW - Sentence - verdicts of guilty of murder and manslaughter arising from the same incident CASES CITED : R v Isaacs (1997) 41 NSWLR 374 DECISION : Seventeen years imprisonment with non parole periods aggregating twelve years (see para 15 for details on each count) THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HIDDEN J Friday, 6 July 2001 Regina v Nedjelko Bikic Remarks on Sentence 1 HIS HONOUR: The offender, Ned Bikic, was tried before me on an indictment charging the murders of Orhan Yildirim and Mehmet Unsal at Bankstown on 5 April 1998. Manslaughter was left to the jury as an alternative verdict in respect of each count. In the event, the jury found him guilty of the murder of Mehmet Unsal and the manslaughter of Orhan Yildirim. 2 He had earlier faced trial with six other men but, for reasons which I need not recite, it was necessary to discharge that jury from giving any verdict in respect of him. The trial of the other six men proceeded and each of them was found guilty of manslaughter in respect of each count. I sentenced those men on 30 March 2001: R v Puta & Ors [2001] NSWSC 225. I summarised the facts briefly in those remarks on sentence and it is unnecessary to set them out here. The present offender is the ninth man referred to in para 1 of those remarks. 3 It was not the Crown case that Mr Bikic himself shot either of the deceased. There was evidence from which it might be inferred that he had a gun at the house, but I do not find that evidence satisfactory and I would not make that finding against him. When sentencing the other six offenders, I did not find that it was Mr Nitrovic who shot Mr Yildirim and I dealt with each of them upon the basis that he contemplated that a gun might be fired but without the intent to kill or inflict grievous bodily harm. 4 The verdicts in the present case necessarily lead to different conclusions of fact for the purpose of sentence. The jury must have been satisfied that Mr Bikic was aware of the presence of a gun or guns and contemplated that a gun might be fired with the intent requisite for murder, but thought it reasonably possible that Mr Nitrovic shot Mr Yildirim under provocation. No other view of the facts is compatible with the verdicts and I propose to pass sentence upon that basis. 5 I am no better equipped than I was when sentencing the other six offenders to determine who shot Mr Unsal or in precisely what circumstances. Nor, apart from Mr Nitrovic, can I make any finding about who among the offenders had guns. Equally, I remain unable to determine who struck each of the deceased upon the head with the butt of a gun. From the nature of their gunshot wounds it is easily inferred that both deceased were shot with the intent to kill. On that, senior counsel for Mr Bikic did not wish to be heard to the contrary. 6 Implicit in the verdicts is the jury's acceptance that Mr Bikic was present at the 777 café when the offenders gathered there earlier in the evening, and that he was one of those who travelled via Mr Vincent's home at Marrickville to the house at Bankstown. I heard competing submissions about his role in the planning of the ambush, as I did in relation to the other six offenders prior to sentencing them. Again, I am no better placed than I was then to determine the motive for the ambush and I am unable to arrive at any firm conclusion about Mr Bikic's involvement in the planning and direction of it. In any event, I do not consider that it is a matter which needs to be resolved for the purpose of assessing his culpability for these crimes of homicide, for the same reasons I gave when dealing with the other six men: see paras 12 & 13 of those remarks. I remain unable to conclude who made the decision to carry guns or that that decision was made any earlier than after the offenders had gathered at the house. Subjective case 7 Mr Bikic was forty-five years old at the time of the offences and is now forty-eight. He has a brief criminal record, the only matter of significance being a conviction in 1989 for supplying heroin for which he was sentenced to a term of imprisonment. He was born in Croatia of Serbian parents, and has an older brother and a younger sister. He came to this country in 1977 but maintained contact with his family. 8 His sister married in 1979 and has two sons. Their comfortable lifestyle in Croatia was shattered by the civil war in Yugoslavia and Mr Bikic encouraged them to migrate to Australia. Written statements by his sister and her husband attest to his kindness and to the practical assistance he afforded them in settling in this country. They speak also of his devotion to their sons and his support of them, emotionally and financially. I have no doubt that he will enjoy the continuing support of his sister and her family. 9 I received two other testimonials from people who appreciated Mr Bikic's compassion and assistance during difficult periods in their lives, one of them being the wife of one of his co-offenders. I have no evidence about his personal circumstances or his employment (apart from such evidence as there was about his involvement in the 777 café). Nevertheless, the material which has been presented is to his credit. Sentence 10 Mr Bikic was in custody from the date of his arrest, 14 November 1998, until 10 July 2000, when I granted him bail following the discharge of the jury in respect of his case in the previous trial. The verdicts in this trial were given on 14 May 2001, and he has been back in custody since that date. Accordingly, his periods of pre-sentence custody aggregate something in excess of one year and nine months. I shall recognise this by backdating the first sentence which I pass by one year and ten months. 11 I have regard to the fact that the bail to which he was subject contained stringent conditions. In addition, during his earlier period in custody he was classified as a "high risk" prisoner, which rendered the conditions of his custody more onerous and subjected him to exceptional security when travelling to and from court during the earlier trial. That is a matter properly to be taken into account, as it was in relation to those of his co-offenders who were classified in the same way: see para 57 of my earlier remarks on sentence. There are special circumstances warranting of departure from the usual proportion between head sentence and non-parole period, for much the same reasons as there were with the co-offenders (para 59). Now, as then, the Crown prosecutor has made no submission to the contrary. 12 As I observed when sentencing the other offenders (para 58), the plan to assault the two victims whilst some of the participants were armed with loaded guns was extremely dangerous. There was a very great likelihood that death or serious injury would result. I accept that homicide occurs in a wide variety of circumstances and that there can be a degree of overlap between the criminality of offences of murder and manslaughter. Nevertheless, I cannot accede to the submission of senior counsel for Mr Bikic that his objective criminality is less than that of his co-offenders, Arben Puta, Zeljko Nitrovic and Raymond Curry. The fact that he has been found guilty of one count of murder necessarily elevates his overall criminality significantly above that of all his co-offenders. 13 For the manslaughter of Orhan Yildirim he stands for sentence on a different legal basis from his co-offenders. The various forms of manslaughter do not necessarily dictate different ranges of sentence, the range of sentencing available for that crime being "notoriously wide": R v Isaacs (1997) 41 NSWLR 374 at 381. For the same offence I sentenced Zeljko Nitrovic, Raymond Curry, Goran Mackic and Russel Oldham to imprisonment for nine years. (Arben Puta and Satuala Nanai were sentenced differently, in each case for reasons which have no application here. However, I consider that Mr Bikic's contemplation of the use of a gun to kill or to inflict grievous bodily harm renders his culpability for the manslaughter somewhat greater than that of the other four men. The jury classified that killing as manslaughter rather than murder because of the circumstances in which Mr Yildirim met his death, not because of any conduct of Mr Bikic. 14 I propose to pass a sentence on each count reflecting the criminality of the offence charged, directing that one be served partly cumulatively upon the other. This is the course which I adopted with the other offenders: see para 61 of those remarks. In this way I believe that effect will be given to the principle of totality, recognising that the two offences were components of one brief episode. 15 Ned Bikic, for the manslaughter of Orhan Yildirim you are sentenced to imprisonment for ten years, to date from 6 September 1999, with a non-parole period of seven years. For the murder of Mehmet Unsal you are sentenced to imprisonment for sixteen years, to date from 6 September 2000, with a non-parole period of eleven years. 16 Effectively, you have been sentenced to imprisonment for seventeen years, with non-parole periods aggregating twelve years, dating from 6 September 1999. You will be eligible for release on parole on 6 September, 2011. ********** Last Modified: 08/15/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.