R v Michael Basanovic; R v Wade Basanovic - [2016] NSWSC 292 - NSWSC 2016 case summary — Zoe

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R v Michael Basanovic; R v Wade Basanovic

[2016] NSWSC 292

Supreme Court of NSW|2016-03-21|Before: Davies J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2016-03-21

Before

Davies J

Source

Original judgment source is linked above.

Judgment (15 paragraphs)

[1]

Solicitors: Korn Macdougall Legal (Michael Basanovic - Accused) Korn Macdougall Legal (Wade Adil Basanovic - Accused) Solicitor for Public Prosecutions (Crown) File Number(s): 2013/63525; 2013/88487

[2]

Judgment

Just before 4pm on Tuesday, 15 January 2013 the deceased Zeljko Mitrovic was shot and killed in the upstairs office of his company known as Dynamic Transport at 138 Hassell Street, Wetherill Park. At the same time an employee of the deceased, Michael Bell, was shot in the right arm and suffered a fracture of the lower end of the right humerus.
Michael Basanovic, Wade Basanovic and Brian Brown were jointly indicted that each did murder the deceased and that each did cause grievous bodily harm to Michael Bell with intent to cause grievous bodily harm.
The trial took place from 4 to 28 August 2015. At the conclusion of the case for Michael Basanovic and Wade Basanovic application was made by Senior Counsel for Brian Brown that I should direct the jury to acquit Mr Brown on the basis that there was no case to answer. On 25 August 2015 I acceded to that application and directed the jury to acquit Mr Brown which they duly did. A similar application was made on behalf of Michael Basanovic and that application was refused: R v Basanovic (No 5) [2015] NSWSC 1197.
The jury returned their verdicts on 31 August 2015. In respect of Michael Basanovic they found him guilty of the murder of the deceased and guilty of causing grievous bodily harm with intent to cause grievous bodily harm to Michael Bell. In respect of Wade Basanovic they found him not guilty of the murder of the deceased but guilty of manslaughter. In addition, they found him guilty of causing grievous bodily harm with intent to cause grievous bodily harm to Michael Bell. They now stand for sentence in relation to those verdicts.

[3]

The facts

It is necessary for me to find facts consistent with the jury's verdicts. That is by no means an easy task given the verdicts and the circumstances of the offending. The Crown's case was based on a joint criminal enterprise between Michael Basanovic and Wade Basanovic to murder the deceased. The reason they intended to kill the deceased was related to the previous membership of Michael Basanovic in the Hells Angels Motorcycle Gang to which gang the deceased belonged at the time of his death, and to the souring of a relationship between Michael and the deceased who was also a member of that organisation.
The jury's conviction of Michael Basanovic for the murder of the deceased means that they must have accepted the Crown case of a joint criminal enterprise to kill the deceased. That is because it was Wade not Michael who shot and killed the deceased. The evidence demands that the arrangement must have been made before the offenders and Mr Brown went upstairs into the deceased's offices as I shall relate. Yet the conviction of Wade Basanovic for manslaughter must mean that the jury considered that he acted in self-defence, albeit using excessive or unreasonable force. Although provocation was left to the jury neither the Crown nor counsel for Wade contended that the manslaughter verdict was explicable by reliance on provocation. I agree with that assessment.
It must be said, however, that a joint criminal enterprise to kill the deceased involving the presence of the offenders and others at the premises on that day in circumstances where Wade carried a gun in his pocket to effect that enterprise sits uneasily with a conclusion that Wade alone shot the deceased as a defensive measure to protect his father.
The background facts are relatively uncontroversial. I note that any facts I find against the offenders must be found beyond reasonable doubt but facts found in their favour may be found on the balance of probabilities.
The deceased became a full member of the Hells Angels on 16 December 2007. At the time of his death he was a member of the Brisbane City Chapter.
Michael Basanovic had been a member of the Bandidos Motorcycle Gang in the late 1990s. He then left the Bandidos. He became a prospect in the Hells Angels gang from July 2009 or a little earlier. He became a full Hells Angels member on 6 July 2010. He ceased being a member of the gang somewhere between November 2010 and April 2011 but probably closer to the latter date.
Whilst he was associated with the Hells Angels he was a methamphetamine cook for the deceased. He had previously had a good relationship with the deceased but relations soured between them when the deceased started having problems with one of Michael's mates in the Hells Angels, a man known as Shovel. The deceased questioned Michael's loyalty because of his friendship with Shovel.
Shovel died on 1 April 2010 and Michael said that from that time onwards he just slowed down in what he was doing for the deceased, principally cooking methamphetamine. That does not sit easily with the fact that it was some three months after Shovel's death that Michael became a full Hells Angels' member.
In any event, two other things occurred that appeared to cause Michael to lose motivation particularly for the work he was supposed to be doing for the deceased. His brother was found to have cancer and died in April 2011, and a little before that time Michael had his hands operated on for carpel tunnel syndrome.
Relations between the deceased and Michael must have deteriorated significantly because the deceased called a meeting of the Hells Angels at the Petersham clubhouse to sort things out. Michael said that this meeting was six to eight months after Shovel's death which would place it towards the end of 2010, but at another time in his evidence he said it was in 2011. The latter time fits more easily with subsequent events. At that meeting Michael was seriously assaulted and, although he does not know who assaulted him, the deceased was close by to him before he was struck on the left hand side and Michael believed that the deceased was responsible for the assault. Wade had accompanied Michael to a hotel near the clubhouse where he waited for his father to return from the meeting. Wade observed the condition of his father immediately after the assault.
Shortly after that time Michael decided to leave the club and he handed his colours in outside a clubhouse. At that time the deceased was present. The deceased said words to the effect that they could work things out but Michael said there was nothing to work out. As Michael walked away from the clubhouse the deceased followed him and said "You know this is going to get nasty if it is not sorted".
Michael gave evidence that after that time but before his brother died in April 2011 he was advised by the police that his life was in danger because there was a contract out on him. They said they could help him, but Michael rejected their offer. It was at about this time that Michael moved from Waterloo to Brighton Le Sands because Brighton Le Sands was within an area that another outlaw motorcycle gang controlled. He thought he would be safer there. Subsequently, the Hells Angels made two visits to Michael's parents' place, presumably looking for him or for the purposes of intimidation.
After the second visit by the Hells Angels to his parents' place just after New Year 2013 Michael gave evidence that he was ropeable, and he found out the deceased's Berry number and sent him a text saying "You're a weak dog going to an old person's home who is dying of cancer at my parents' place". He received a response from the deceased saying, "I'm not a dog. You're the dog that's hiding. Let's catch up." Michael responded, "What, so I can get bashed again?" The deceased replied, "You know how to fix this. We can sort it out. You know what to do. You need me. Let's sort it out". Michael responded "I don't need you or the fucking Club. I can go elsewhere. I have changed Clubs before and I can do it again." The deceased replied, "You're not going anywhere. You're a dead man". This exchange took place just after the new year 2013, probably two weeks before 15 January 2013.
After the exchange of texts Michael said that he realised he had said the wrong thing, like putting fuel on a fire. He said he knew that the deceased was going to knock him, that is, kill him. Michael said that he decided he wanted to sort it out with the deceased and see if he could buy his way out of it by a payment of money as somebody else he knew had done.
Whether that evidence of Michael about realising he had said the wrong thing and deciding he wanted to sort it out by paying money is true or not is difficult to determine. What seems clear, and I find, is that it was at about this time that the joint criminal enterprise to kill the deceased was hatched.
Wade gave evidence of knowing about the bashing of his father at the Hells Angels's clubhouse in Petersham and that his father told him that Steve (the deceased) was responsible. He gave evidence of knowing that the police told his father there was a contract out on him, of knowing about the visits of the Hells Angels to his grandparent's house at Strathfield, and of knowing about the subsequent text message exchanges between his father and the deceased, culminating in the deceased telling his father he was dead.
Through Mr Brown Michael met Frank Bacic who was a friend of the deceased's. Michael spoke to Frank Bacic to get him to set up a meeting with the deceased. Michael asked Wade and Mr Brown and a few other men he knew to go with him to see the deceased. Wade told his father he wanted to go there in any event. Michael asked the others to go with him in case the deceased had his own men around him as he usually did.
The Crown does not accept this background evidence of threats and visits on behalf of the Hells Angels and the deceased because, as the learned Crown Prosecutor quite properly said, she had no way of testing or determining whether these matters were true or not. Wade's evidence in that regard is largely dependent upon acceptance of his father's evidence except for his observations of his father after he was bashed at the Petersham clubhouse. His evidence about who was responsible for that bashing also comes from his father.
Nevertheless, I accept this evidence from both Michael and Wade. Conscious as I am of how easy it is to defame the dead when they cannot respond, there was enough other evidence given at the trial for me to conclude that the deceased was a ruthless and violent man who had few, if any, scruples in dealing with those who crossed him in any way he thought appropriate. This was particularly evident from the sentencing remarks of Hidden J in relation to the deceased's conviction for manslaughter involving two Turkish men in 2000: R v Puta & Ors [2001] NSWSC 225.
The offenders, and their companions travelled in two cars to the deceased's premises in Wetherill Park on the afternoon of 15 January. Wade and Frank Bacic went first to see if there was anyone else there with the deceased. If there was, Michael was not prepared to meet the deceased.
When the car carrying Wade and Frank arrived at the premises Wade waited until Frank Bacic and the others in the car got out. He then took his father's gun from a compartment in the front of the car and put it in his pocket. Frank Bacic went upstairs and eventually persuaded the deceased to come downstairs. The deceased had a heated conversation with Wade saying that he did not know either Wade nor his father. He then went back upstairs. Wade rang his father and told him that the deceased claimed not to know him but he said the deceased was very angry. Michael arrived at the premises with Mr Brown. Michael, Wade and Mr Brown went upstairs to speak to the deceased. The Crown submitted that the offenders knew from what Frank Bacic had told them that employees of the deceased's company were present upstairs in the office. In any event, it would have been obvious to them when they entered the upstairs part of the offices that there were a number of employees present.
There was a heated argument between the deceased and the three men. A viewing of the CCTV footage, which captured the whole argument visually but not aurally, then shows Wade to pull a gun from his pocket quite quickly and commence shooting. According to both Michael and Wade, just before the shooting commenced the deceased had said to them, "You're all fucking dead". Wade then turned to Michael and asked him if heard what the deceased said. Michael then said, "Let's get out of here". Mr Brown had started to leave at that point. Wade claimed that he just "lost it", and that's when he started shooting.
As the deceased started staggering after he was first shot he moved around towards his own office and away from the entrance door. Wade kept shooting (five bullets were fired) and one of those hit Michael Bell. Three of the bullets struck the deceased. The fifth passed out through the wall of the premises.
The Crown case was, and the Crown continued to submit at the sentence hearing, that Wade pulled out the gun after receiving a nod from Michael. The nod was said to be significant because it clearly demonstrated the prior arrangement for Wade to shoot the deceased. Mr Bell gave evidence that he saw Michael nod to Wade before the shooting.
The DVD was played during the trial on a number of occasions. I have subsequently watched the DVD a number of times. I cannot be satisfied beyond reasonable doubt that Michael Basanovic nodded to Wade before Wade commenced shooting. I do not consider that it is necessary for the jury to have concluded that there was such a nod for the jury to have come to the view that there was a joint criminal enterprise between Michael and Wade to kill the deceased.
The offenders and those with them then drove from the premises. The next day Wade and Mr Brown travelled on one-way tickets to Chile paid for by Michael. The principal reason for that was said to be so that they were out of the reach of the Hells Angels who might seek revenge for the deceased's death. However, although both returned voluntarily a few months later, I consider that part of their motivation was to avoid detection for their involvement in the shooting.

[4]

Submissions

Although counsel for each of the offenders initially submitted that I should sentence according to the facts involving each of them individually without regard to the verdict against the other, they ultimately accepted the Crown's submission in reliance on Mariam v R; R v Mariam [2013] NSWCCA 338 that it was necessary for me to sentence having regard to all of the facts and the verdicts found notwithstanding that the task might entail "an exercise in mental gymnastics": Mariam at [20]. That is what I have done.
Counsel for Wade submitted that the planning and premeditation in relation to the joint criminal enterprise did not extend to the killing of the deceased. In oral submissions, this was expanded to a submission that I could not find beyond reasonable doubt that any intention to kill existed prior to the offenders being present in the offices with the deceased. Similarly, counsel for Michael submitted that if there was any intention it was only an intention to go there to talk to try to sort the matter out but that if it could not be sorted out an intention to kill might arise. I reject these submissions.
If I had found that Michael nodded to Wade immediately before the shooting that would have necessitated a finding that there was a plan already agreed that the deceased would be killed at some point when the offenders went to the premises. There was no evidence from any of the witnesses who heard what was said during the argument including the offenders that would enable a finding that the intention to kill only arose during the discussions with the deceased.
The only finding that I can make consistent with the jury's verdict in relation to an intention to kill the deceased is that this was agreed between Michael and Wade at or about the time Michael was endeavouring to organise a meeting with the deceased with the assistance of Frank Bacic. If there was no nod, that makes it even more likely that the intention to kill must have been agreed before the offenders went to the premises.
To make that finding consistent with the verdict of manslaughter by reason of excessive self-defence on Wade's part I find that although there was a joint criminal enterprise between the offenders to kill the deceased, Wade's intention of doing so was to protect his father because of his belief about the danger that his father was facing arising from the bashing, the visits by the Hells Angels to his grandparents, from his belief that the deceased had a contract out on his father's life and because of his knowledge of the violence of the deceased. Although Michael was no doubt concerned for his own safety, the only finding I can make consistent with the jury's verdict of murder in respect of him is that he intended to kill the deceased not so much because of a belief that he needed to defend himself as much as a revenge for what he had suffered at the deceased's hands. I accept, however, that it is difficult to reconcile that evidence with Michael's evidence, which I accept, that he could have killed the deceased in far more discreet circumstances if that was his intention, particularly because he knew where the deceased lived in a somewhat remote location.

[7]

Subjective features

Michael Basanovic was born on 14 October 1965. At the time of the killing he was aged 47 years. He is now aged 50. The offender was born in Bosnia and came to Australia when aged five or six years. When he left school he took up an apprenticeship in automotive engineering, fitting, machining, turning, specialising in motors. He became an interstate truck driver. He suffered a serious motor vehicle accident in 1990 when driving a heavy vehicle and the front steering gave way. He woke up four days later in hospital. He said that he suffered frontal lobe brain damage, damage to his teeth and injury to both his cervical and lumbar spine. There was no suggestion that the frontal lobe brain damage he suffered had any relationship to the killing or any other matters about which evidence was given at the trial. Although Wade told Dr Olav Nielssen that his father subsequently developed bipolar disorder there is no evidence of that.
Michael joined the Black Uhlans Motorcycle Club when aged about 17. Subsequently he hung around with the Comancheros and then the Bandidos. He left the Bandidos on good terms and then in 2009 he commenced his involvement with the Hells Angels. He was first a prospect and then became a member of that Club. He became close to the deceased and worked for him as a meth cook. The circumstances in which he left the Hells Angels were noted earlier.
The offender has a number of convictions on his record. These include firearms and drug offences. On 17 May 2007 he was given a two year prison sentence with an 18 month non-parole period for maliciously inflicting grievous bodily harm. On appeal the non-parole period was reduced to 12 months but the overall sentence was maintained.
On 18 May 2011 he was given a two year section 9 bond for obtaining money by deception. He remained on that bond at the time of the present offences. That is an aggravating factor.
No evidence of any sort was put forward for Michael at the sentencing hearing.

[9]

Cause grievous bodily harm

The intent involved in this offence is transferred intent. However, the offender's intent when he shot Michael Bell was to kill the deceased. In AM v R [2012] NSWCCA 203 Johnson J reviewed the considerations relevant to the determination of the objective gravity of an offence contrary to s 33 of the Crimes Act 1900 (NSW). Two matters relevant to the present offending are (a) the extent of the injuries sustained by the victim, a matter of great significance in assessing the objective gravity (AM at [71]), and (b) the fact that the offence was committed against an innocent citizen going about his ordinary business makes it a crime of increased seriousness (AM at [74]).
Mr Bell was struck by the bullet in the right arm near the bicep muscle. Over a period of time he has undergone four operations on his arm. He has been left in the position where he cannot straighten his arm. The surgeon who treated Mr Bell at Liverpool Hospital gave evidence that the x-ray taken of Mr Bell's arm showed some fractures in his humerus with multiple metallic fragments in that region and multiple pieces of shrapnel in the adjacent soft tissue. There was some swelling around the main artery in his arm and he suffered an injury to the median nerve. One of the veins that accompanies the brachial artery in the arm was also damaged by being cut through. The injuries were described by the doctor as serious injuries. He said the median nerve is an important nerve both for sensation and motor control in the thumb, the index finger, the middle finger and part of the ring finger. It also controls muscles that flex the fingers and the wrist.
Quite apart from the physical damage sustained by Mr Bell was the emotional and psychological damage he experienced. His Victim Impact Statement eloquently detailed those matters. Mr Bell has not worked since the shooting.
I accept that suffering grievous bodily harm is an element of the offence. However, the extent and the permanent nature of the injuries here should be regarded as informing the objective seriousness of the offending.
I also take into account the reckless disregard which the offender showed by continuing to fire at the deceased as he staggered around after he was struck by the first bullet. I am conscious, however, that this matter should not be double counted with the aggravating feature that the unlawful killing of the deceased took place in circumstances of the grave risk of death to other persons.
In my opinion, the offence falls within the mid-range of objective seriousness.

[10]

Subjective matters

The offender was born on 5 July 1991. He was aged 21 at the time of the killing and is now aged 24. He was first convicted of an offence at the age of 16 years of assault occasioning actual bodily harm. He was placed on a 12 month s 33(1)(B) bond. However, he was called up on that bond and a control order of nine months was imposed. On appeal to the District Court the control order was reduced to three months. The occasion for the call up appears to have been the charging of him and his conviction for recklessly causing grievous bodily harm for which he was sentenced to a control order comprising a non-parole period of eight months with a balance of term of ten months. On appeal that was reduced to a non-parole period of three months with a balance of term of nine months.
As an adult he was convicted of possessing or attempting to possess an anabolic or androgenic steroidal agent.
Although the offences of personal violence were committed whilst he was a minor they were serious offences and were committed only a few years before the present offences. I regard his record as an aggravating factor for the offending.
The offender was examined by Dr Olav Nielssen on 14 October 2015. What he told Dr Nielssen indicates that he does not accept the jury's verdict that there was a joint criminal enterprise to kill the deceased. He maintained, as he did in his evidence, that they only went there to talk to the deceased. That indicates a lack of remorse for the killing.
The offender disclosed no drug or alcohol problem and he said he was not affected by drugs or alcohol at the time of the offending. As far as his general health is concerned, he told Dr Nielssen that he suffered from migraine headaches, joint pain in the right shoulder and gastric reflux. The only other health issue he described, apart from reconstruction surgery to his right shoulder from having played football as a teenager, was a diagnosis of chronic fatigue syndrome at about the ages of 14 and 15. He was apparently prescribed certain drugs which appear to have corrected the problem. He did not claim to be depressed.
Dr Nielssen said the offender was not thought to meet the accepted criteria for the diagnosis of any psychiatric disorder. Dr Nielssen thought he had a good prognosis and good prospects for rehabilitation.
Two references were provided, one from his older sister and one from his mother. His mother, in particular, spoke of Wade being a caring, respectful and polite son and grandson. Both spoke of concern for their safety and well-being, and his mother said that the offender had asked that neither she nor his sister attend Court because he feared for their safety due to the fact that an outlaw bike club was involved. That sat uneasily with what the offender told Dr Nielssen that he was not aware of any threats or danger from the deceased's family or the Hells Angels Club, as the problem was one between the deceased and his father and not between him and the Club.

[14]

Sentence

Wade Basanovic was arrested on 4 May 2013 and has been in custody since that date. His sentence will commence on that date. Michael Basanovic was arrested on 8 May 2013 and has been in custody since that time. His sentence will commence on that date.
Both offences occurred as part of the same criminality. Although the elements of the second count were established, there was one single intent on the offenders' part, that is, to kill the deceased. To some extent, therefore, the criminality involved in the killing comprehends the wounding. By reason of the recklessness with which the killing was carried out and the seriousness of the injuries to Michael Bell, there must be some accumulation of the sentences for each offence.
Michael Basanovic, for causing grievous bodily harm to Michael Bell with intent to cause grievous bodily harm I convict you and sentence you to a non-parole period of seven years commencing 8 May 2013 and expiring 7 May 2020 with an additional term of two years and four months expiring 7 September 2022. For the murder of Zeljko Mitrovic I convict you and sentence you to a non-parole period of 18 years commencing 8 May 2016 and expiring 7 May 2034 with an additional term of six years and nine months expiring 7 February 2041. The overall sentence is a non-parole period of 21 years with an additional term of six years and nine months.
Wade Basanovic, for causing grievous bodily harm to Michael Bell with intent to cause grievous bodily harm I convict you and sentence you to a non-parole period of seven years commencing 4 May 2013 and expiring 3 May 2020 with an additional term of two years and four months expiring 3 September 2022. For the manslaughter of Zeljko Mitrovic I convict you and sentence you to a non-parole period of eight years commencing 4 May 2016 and expiring 3 May 2024 with an additional term of three years and six months expiring 3 November 2027. The overall sentence is a non-parole period of 11 years with an additional term of three years and six months.