R v Wade Basanovic [2016] NSWSC 292
R v Michael Basanovic
Source
Original judgment source is linked above.
Catchwords
R v Wade Basanovic [2016] NSWSC 292
R v Michael Basanovic
Judgment (11 paragraphs)
[1]
Solicitors:
Solicitor for Public Prosecution (Crown)
Hanna Legal (Offender)
File Number(s): 2013/63525
[2]
Background
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
[3]
Fundamental aspects
That is the complicated and protracted procedural context in which I am now called upon to sentence the offender for the separate offences of manslaughter and the intentional infliction of grievous bodily harm. In doing so, I have borne in mind as guideposts the maximum penalty of imprisonment for 25 years for the former offence; the maximum penalty of imprisonment for 25 years, with a standard non-parole period of 7 years, for the latter offence; the need for aggravating features above and beyond the elements of the offences to be proven beyond reasonable doubt; the need for mitigating features to be proven merely on the balance of probabilities; and the fact that some matters may remain unclear to me.
[4]
Objective features
With the agreement of counsel at the proceedings on sentence, I shall further discuss the offences themselves and their context only briefly. Because of the fact that excessive self-defence underpins the manslaughter, it is impossible for me to separate objective and subjective features sharply in this thumbnail sketch.
The offender, a mature man aged 47 years as at the date of the shootings, was well entrenched in the criminal milieu. He lived in the very profitable and very dangerous world of persons who manufacture and supply prohibited drugs. Indeed, his expertise as a "meth cook" was highly valued. The deceased inhabited the same unlawful world. Although they had been close associates at one stage, a souring developed between them when the deceased started having problems with one of the associates of the offender. Thereafter, the offender came to believe that the deceased intended to kill him, and had the wherewithal to do so. The Crown before me did not deny that, speaking generally, that belief could have been well-founded.
The offender decided to defend himself from the threat of fatal violence by "getting in first"; that is, by way of a planned, brazen, undisguised, fatal shooting, in front of witnesses, in broad daylight, at the workplace of the deceased. He obtained a handgun and provided it to his son. As I have said, the two men travelled to the premises of the deceased, accompanied by others. The intention to kill was well in place. The offender and his son confronted the deceased. The latter - who was not armed with any weapon, let alone a firearm - spoke of the two of them as being "all fucking dead". Thereafter the co-offender fatally shot him repeatedly to the chest, thereby concluding the homicide. As I have recounted, in the confusion, an employee who was wholly uninvolved in the criminal world was shot by a stray bullet and severely wounded in the arm.
Later, the offender unsuccessfully sought to flee Australia for South America. Later again (as I have recounted) he now concedes by his pleas of guilty that he committed perjury in this Court when he denied before the jury that there had been any joint criminal enterprise between himself and his son on the day of the shootings.
[5]
Objective gravity
I turn now to the question of objective gravity. Manslaughter is notoriously varied, legally and factually, and it can be difficult to construct a coherent structure of objective seriousness with regard to all of its forms. Still and all, one must try, not least to give meaningful effect to the maximum penalty.
In assessing the objective gravity of this homicide, I have borne steadily in mind that the Crown accepts that the offender was in well-founded fear of death, and that is the reason why he inflicted death himself. It could also be said, perhaps, that the offence was unsophisticated and straightforward in its brutality. To be weighed against that are the following facts: it was impossible for the offender to go to the police and tell them of his fears because the dispute arose in the lawless world in which the offender had chosen to place himself; the alternative "solution" was the formation of a joint criminal enterprise to commit planned, wanton, fatal violence in open premises; it was committed with a weapon that was itself inherently unlawful, terrifying, and pernicious; and, at the time when the life of the deceased was extinguished, he presented no immediate threat, not least because there was no sign of him being armed.
In my assessment, this is undoubtedly a very grave example of the offence in question, even making full allowance for the belief on the part of the offender that reduces his culpability from murder to manslaughter.
For the same reasons, and even accepting that it was underpinned by the same mitigating belief, the same assessment must be made of the objective gravity of the infliction of grievous bodily harm on the uninvolved bystander.
[6]
Subjective features
Subjectively, counsel were agreed that, in light of the timing and utilitarian value of the pleas of guilty, there should be a discount of 10% upon the starting point of both sentences. I accept that joint submission.
Another matter - which does not require elaboration here - but upon which I have reflected carefully, and in a way that is only favourable to the offender, calls for a further discount of 10%, without further subdivision.
The offender is now a mature man of 54 years. He grew up in Bosnia in what was then the former Yugoslavia, before moving to Australia at the age of 5 years. He has a de facto partner of 10 years, and two children, including the co-offender. The father of the offender passed away in 2013, and his mother is in aged care and suffers from poor health. No doubt, her condition is a source of concern to him during his incarceration.
After finishing high school, the offender worked as a mechanic, and then became a truck driver from his early 20s.
From the 1990s, he began using illicit drugs, but has reported to psychiatrists that he has abstained for about a decade.
As for the mental health of the offender, he has had a long history of depression, as well as instances of overdoses. He has also been on anti-depressant medication for a number of years.
His criminal record is sparse but significant. Over 30 years ago, he was placed on a bond for possessing a shortened firearm. Two years later, he was fined and placed on a bond for possessing another firearm, possessing a firearm that had had its identification defaced, carrying an unlicensed pistol, and possessing a loaded firearm in a public place; in the offender's favour, I proceed on the assumption that they were all the one weapon.
More recently, though admittedly over 13 years ago, he was imprisoned for maliciously inflicting grievous bodily harm. On appeal to the District Court, his sentence was reduced to a head sentence of imprisonment of 2 years with a non-parole period of 1 year. It is noteworthy that the unsuccessful exculpatory proposition of the offender about that crime was that he had acted in self-defence.
In other words, on the one hand the offender has not been convicted of many offences throughout his life; on the other hand, there is a flavour of violence and contact with firearms that is surely troubling, in light of what occurred on 15 January 2013.
I have also had the benefit of detailed psychiatric reports obtained by both legal teams. It is not disputed that the offender has suffered a cognitive impairment as a result of a motor vehicle accident many years ago. The same proposition is supported by a letter from his brother. I accept that he is to some degree impaired, and that therefore he is, to some degree, a less appropriate instrument for expressions of general deterrence. It is also possible that that condition was not fully appreciated when the offender has interacted with the criminal justice system in the past. But as I have said, this man had the cunning to be able to survive in a very complicated and dangerous world; he has had the skill and knowledge to be a much-valued manufacturer of a prohibited drug; and he was quite capable of forming and implementing a homicidal joint criminal enterprise. In short, the mitigation based upon all aspects of his mental state must be quite limited.
The offender has been in custody now for over 6 years. My understanding is that he has been very strictly segregated from other prisoners for all of that time, and it is expected that that will continue into the future for the entirety of his incarceration. Some may say that that is simply the result of his own choices in life, and should not be the subject of any reflection on sentence. In my opinion, however, the simple objective reality is that his imprisonment will be very physically and psychologically constrained, and my sentence reflects that to some degree.
As for remorse, it is true that there have been some recent positive signs; again, they need not be discussed further here. But it is to be recalled that at first the offender sought to absent himself from Australia, in order to avoid entirely any punishment for what he had done. And it is also to be recalled that he committed admitted perjury at the trial. It is possible, I think, that all that has happened recently is motivated very largely by self-interest. Having said that, the offender has finally come to admit that he committed the offence of homicide, and it is possible that there has been a sincere acceptance of responsibility and a measure of reflection over many years of isolation; I go no further than that.
In similar vein, I think that the most one can say about the future, when the offender is eligible for released to parole some years from now, is that there are some grounds for guarded optimism in this matter.
[7]
Parity
Turning to questions of parity, it is true that the co-offender was the shooter. Speaking very generally, it is sometimes the case that the individual who actually commits the criminal act is judged to be deserving of harsher punishment than his or her confederates. But in this case it was the offender who was in dispute with the deceased; it was he who was the instigator of the joint criminal enterprise; and it was he who provided the handgun to his son. In the circumstances, I assess the objective role of the offender as at least equal to that of his son, despite the fact that the offender never pulled the trigger.
As well as that, on the day of the shooting, the offender was aged 47 years. His son was 21. And as I have recounted, the offender had convictions as an adult for violence and to do with firearms, whereas (except for an adult offence to do with steroids) his son had committed only juvenile offences. It is true that one of them involved causing grievous bodily harm, but it led to a control order of 12 months with a non-parole period of merely 3 months.
That is not to say that I find as an aggravating feature that the offender inveigled, or persuaded, or forced his son into the commission of these crimes. It is to say, however, that I believe that I can and should adopt a starting point for the manslaughter head sentence of the offender that is somewhat longer than the undiscounted head sentence for the manslaughter imposed upon his son, without creating erroneous disparity between them.
[8]
Various aspects
I attend now to a few discrete matters.
First, there is no reason not to grant a full backdate to 8 May 2013.
Secondly, these remarks speak of all of the aggravating and mitigating features that I have taken into account, and I do not propose to repeat them as some sort of list.
Thirdly, the offender should be aware that, in light of the nature of the offences that he has committed, he may not be released, even at the conclusion of his entire head sentence, if it is established at that stage that he presents a danger to the community.
[9]
Length of sentence
As for aspects of sentence structure, the undiscounted sentence that Davies J imposed upon the offender for the offence of inflicting grievous bodily harm was a head sentence of 9 years 4 months. In accordance with what defence counsel called the "ceiling principle" that generally applies after a process of successful appeal against conviction, conviction for a second time, and re-sentence, I consider that the starting point of my sentence for that offence must not be beyond that point: see R v Bedford (1986) 5 NSWLR 711. I certainly do not believe that that sentence should be any shorter.
That means that, with the 20% discount, the head sentence for that offence will be 7 years 5 months (this and subsequent calculations may feature some very minor "rounding down").
In similar vein, there is no doubt but that there must be a measure of cumulation between the two sentences, because it is inconceivable that the sentence for either offence can encapsulate the gravity of the consequences of the other offence. To the extent that the sentence for the offence of inflicting grievous bodily harm will now be a little shorter, I think it appropriate that the degree of cumulation between the two sentences be a little shorter as well: my sentence for manslaughter will commence 2 years 6 months after the commencement of the sentence for the offence of inflicting grievous bodily harm; that is, on 8 November 2015.
As for the starting point of the manslaughter head sentence, it can be seen that the completely undiscounted head sentence imposed by Davies J on the co-offender for that offence was 11 years 6 months. For the reasons I gave a moment ago, I believe that the starting point of the sentence for manslaughter to be imposed on the offender should be longer than that, although not so much longer as to disadvantage the offender by erroneous disparity. After reflection upon all objective and subjective factors, my starting point for the manslaughter is a head sentence of 14 years. I am well aware from my consideration of other examples of "excessive self-defence manslaughter" involving firearms that that is stern; this homicide deserves nothing less.
That must be discounted by 20%, arriving at a head sentence of 11 years 2 months. And by way of cumulation, that leads to a total head sentence of 13 years 8 months.
As for the question of special circumstances with regard to the non-parole period of either sentence, the offender is a mature man, with a short but important criminal record, who has committed homicide, as a result of his involvement in a world of criminality, and who will be the subject of a substantial parole period. And the physical and psychological hardships of custody have already been taken into account in my two starting points. I do not accept that there should be any reduction in either non-parole period, except to ensure that the process of cumulation does not lead to an effective overall ratio that goes beyond the statute.
In short, giving effect to that, one arrives at a non-parole period for the manslaughter of 7 years 9 months.
The ultimate outcome is a total head sentence of 13 years 8 months with a total non-parole period of 10 years 3 months. I have stepped back and reflected upon that; I could not countenance anything less for this offending, the profoundly anti-social aspects of which require no further elaboration.
[10]
Orders
1. Muho Mick Basanovic, you are convicted of the offence of manslaughter, and also convicted of the offence of inflicting grievous bodily harm with intent to do so.
2. For the second of those offences, I impose a non-parole period of 5 years 6 months to commence on 8 May 2013 and to expire on 7 November 2018, with a parole period of 1 year 11 months, to commence on 7 November 2018, and to expire on 7 October 2020.
3. To express that sentence another way, I have imposed a head sentence of 7 years 5 months with a non-parole period of 5 years 6 months, with a full backdate.
4. For the offence of manslaughter, I impose a non-parole period of 7 years 9 months to commence on 8 November 2015 and to expire on 7 August 2023, with a parole period of 3 years 5 months to commence on 7 August 2023 and to expire on 7 January 2027.
5. In other words, for the offence of manslaughter, I have imposed a head sentence of 11 years 2 months with a non-parole period of 7 years 9 months that commences 2 years and 6 months after the date of commencement of the other sentence.
6. For both offences, I have therefore imposed a total head sentence of 13 years 8 months with a total non-parole period of 10 years 3 months, with a full backdate to 8 May 2013.
7. The first date upon which it appears that the offender may be eligible for possible release to parole, pursuant to those sentences, is 7 August 2023.
W Basanovic diagram Davies J (12.3 KB, pdf)
M Basanovic diagram Davies J (10.6 KB, pdf)
[11]
Amendments
12 December 2019 - Paragraph 12: The first sentence was deleted and inserted as the first sentence in paragraph 16.
The name of the second diagram was amended
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Decision last updated: 12 December 2019