R v Basanovic [2019] NSWSC 1770

Supreme Court New South Wales

Medium Neutral Citation: R v Basanovic [2019] NSWSC 1770 Hearing dates: 4 December 2019 Decision date: 11 December 2019 Jurisdiction: Common Law - Criminal Before: Button J Decision: (1) Convicted of the offences of manslaughter and inflicting grievous bodily harm with the intent to do so.

(2) Total head sentence of 13 years 8 months with a total non-parole period of 10 years 3 months imposed, to commence on 8 May 2013. Catchwords: CRIMINAL LAW – Sentence – Manslaughter – Causing grievous bodily harm with intent to do so – Conviction for murder the subject of successful appeal – Pleas of guilty – Reduction of culpability to manslaughter by partial defence of excessive self-defence – Planned shooting of deceased with handgun – Uninvolved bystander seriously wounded – Parity – "Ceiling principle" limiting re-sentence after successful appeal on offence involving grievous bodily harm Legislation Cited: Crimes Act 1900 (NSW), s 421 Cases Cited: R v Bedford (1986) 5 NSWLR 711 R v Michael Basanovic; R v Wade Basanovic [2016] NSWSC 292 R v Michael Basanovic; R v Wade Basanovic [2018] NSWCCA 246 Category: Sentence Parties: Regina (Crown) Muho Mick Basanovic (Offender) Representation: Counsel: Mr G Newton (Crown) Ms A Francis (Offender)

Solicitors: Solicitor for Public Prosecution (Crown) Hanna Legal (Offender) File Number(s): 2013/63525

Judgment

Background 1. Many years ago, Mr Muho Mick Basanovic (the offender) was charged with two offences that arose from a shooting that occurred on 15 January 2013 in the Sydney suburb of Wetherill Park. The first was the murder of Mr Zeljko "Steve" Mitrovic (the deceased). The second was the causing of grievous bodily harm, with intent to do so, to Mr Michael Bell. 2. The offender subsequently stood trial in 2015 before Davies J and a jury, along with his son, Mr Wade Basanovic (the co-offender), who was jointly charged with the same offences. 3. The Crown case was as follows. The offender and co-offender had travelled to the business premises of the deceased one afternoon. They were accompanied by other men. The co-offender repeatedly shot the deceased to the chest with a handgun provided to him by his father, the offender. Mr Bell was shot and seriously wounded in the arm whilst the co-offender was attempting to shoot the deceased yet again. All of the acts of the co-offender were in accordance with a joint criminal enterprise between himself and his father. 4. The position at trial of the co-offender was that he had indeed shot those two persons, the deceased with the intention to kill him, and Mr Bell "accidentally", in the sense that he had indeed been intending to shoot the deceased with that projectile as well, but missed him. His position was that he had been acting in "complete" self-defence, and should be acquitted of both murder and manslaughter with regard to the death of the deceased. His contention was that he should also be acquitted of the intentional infliction of grievous bodily harm upon the other man, for the same reason. 5. In the event, the co-offender was found not guilty of murder, but guilty of manslaughter, and guilty of the other offence founded upon grievous bodily harm. He was ultimately sentenced by his Honour on the manslaughter on the basis of "excessive" self-defence. 6. At trial, the position of the offender however was a more fundamental denial. He gave evidence that there was no joint criminal enterprise whatsoever between his son and himself, and that, as far as the offender was concerned, they had travelled to the workplace of the deceased merely to have a discussion with him. All that his son did, according to the sworn evidence of the offender, was entirely his own doing. In accordance with that position, of course the offender said nothing about anything having been agreed in by him in an effort at self-defence, and the trial judge did not leave that doctrine to the consideration of the jury. 7. The jury rejected the evidence of the offender, and found him guilty of the murder of the deceased, and of the infliction of really serious physical injury upon the other victim. 8. In 2016, Davies J imposed two sentences upon each of the men, featuring some partial cumulation (R v Michael Basanovic; R v Wade Basanovic [2016] NSWSC 292). Inevitably, in light of the different homicide verdicts, the total sentence imposed upon the offender was far greater than the total sentence imposed upon his son. Because of the need for my sentence to reflect considerations of parity and also of the "ceiling principle", I attach to these remarks in their written form diagrams setting out those two original sentencing structures. 9. Subsequently, an appeal against convictions by the offender to the Court of Criminal Appeal succeeded (R v Michael Basanovic; R v Wade Basanovic [2018] NSWCCA 246). That was on the basis that it was incumbent upon the trial judge to leave self-defence to the consideration of the jury, despite his basal denial of having committed any crime at all. 10. The matter was listed before me this year for a retrial of the two counts. Before that occurred, however, the offender was rearraigned on an indictment that contained the two of them. He pleaded guilty to the infliction of grievous bodily harm upon Mr Bell with intent to do so. As for the homicide of the deceased, he pleaded not guilty to murder, but guilty of manslaughter. The Crown accepted that plea in full satisfaction of that count. It was immediately agreed between counsel that I should regard that as an acceptance that the offender did indeed believe that his conduct was necessary to defend himself, but that his response was not reasonable in the circumstances as he perceived them (Crimes Act 1900 (NSW), s 421).