R v Puta; R v Nitrovic; R v Nanai.

R v Puta; R v Nitrovic; R v Nanai. - [2002] NSWCCA 495 - NSWCCA 2002 case summary — Zoe

[133]

121 A convenient review of the issues appears in the judge's remarks upon sentence, namely: "An adequate explanation of [the jury's] verdicts in respect of each accused is that they were satisfied that he was a party to the assault and knew of the presence of a gun or guns, but were not satisfied that he contemplated the use of a gun with the intent requisite for murder. In relation to the offenders other than Mr Puta and Mr Nitrovic, it is common ground that that is the factual basis upon which they should be sentenced. As to Mr Puta, that is clearly the basis upon which he faces sentence for the manslaughter of Mr Yildirim but I must deal with the evidence that it was he who shot Mr Unsal. Conversely, in the case of Mr Nitrovic, that is the basis upon which he must be sentenced for the manslaughter of Mr Unsal but I must consider the evidence that it was he who shot Mr Yildirim. Mr Puta, who was the tenant of the house at Bankstown, told police that he had shot Mr Unsal in self-defence. He claimed that he had arrived at the house to be set upon by a number of men, including Mr Unsal, all of whom were strangers to him. He was shot himself while struggling with Mr Unsal, who had a gun. He managed to wrest the gun from Mr Unsal and he shot him. In evidence at the trial, he admitted that much of what he had told the police about the circumstances surrounding the incident was false but he maintained his account of how it was he came to shoot Mr Unsal. I find Mr Puta's evidence no more credible than the version he gave to the police. That he himself was shot there is no doubt, but I am unable to say by whom or in what circumstances. Certainly, I could not conclude that it was he who shot Mr Unsal. That conclusion is unaffected by further scientific evidence that came to light during the current trial [that of Bikic]. The question whether Mr Yildirim was shot by Mr Nitrovic is not as easily resolved. It is common ground that Mr Yildirim produced a knife when he was set upon, that he struggled with Mr Nitrovic and that he stabbed him several times, inflicting serious wounds. It is also common ground that it was then that Mr Yildirim was shot. The Crown contends that it was Mr Nitrovic who shot him, acting under provocation. Such a finding is open and would be consistent with the jury's verdict. In the circumstances of this case, however, it may be that it would not greatly elevate the culpability of Mr Nitrovic above that of his co-offenders: cf R v Isaacs (1997) 41 NSWLR 374 at 381. Certainly, there is a body of evidence to support the Crown's contention. Witness Two [May] did not refer to Mr Nitrovic by name, and I rejected evidence of his identification of Mr Nitrovic from photographs. However, it was the Crown case that his description of one of the men was such that it could not have been anyone else. Before the ambush, according to Witness Two, that man was in possession of a gun which could have been a .45 Ruger semi-automatic pistol. Such a gun was later found in a nearby street and there is no doubt that that weapon had been used to shoot Mr Yildirim. More importantly, Witness One, [Mullany] who knew Mr Nitrovic, gave evidence of seeing him shooting Mr Yildirim. Some of the physical and scientific evidence, which I need not recite, was consistent with his having done so. On the other hand, Witness Two's description of the man said to be Nitrovic was unsatisfactory for reasons exposed during the trial. Of the two indemnified witnesses, I found Witness One the less impressive. Much of his account of the manner in which he saw Mr Yildirim shot is difficult to reconcile with the post-mortem findings and the ballistic evidence. I have provided only the barest summary of the evidence bearing on this question and the detailed arguments of counsel about it in the sentence proceedings. I have given the matter careful consideration but, at the end of the day, I am not satisfied to the requisite degree that it was Mr Nitrovic who shot Mr Yildirim. Accordingly, all six offenders stand for sentence for manslaughter on the same legal basis. I am satisfied that the group was in possession of more than one gun and, for the purpose of sentence, it is not necessary to determine how many. That said, five guns were found either in the house or in the vicinity. Three of them had been fired. Another had clearly been brought to the house by Mr Unsal but it does not appear that it had been fired. There is no satisfactory evidence that Mr Yildirim had a gun. In the course of the ambush both Mr Unsal and Mr Yildirim were struck on the head by the butt of a gun, but I cannot say by whom."

[321]

247 The judge summarised the subjective factors thus: "Mr Nitrovic is of Serbian origin, coming to this country with his parents at the age of two. He had a younger brother, who tragically died from epilepsy during the period he was in custody awaiting sentence. His family life was very disturbed. His father was violent and given to excessive drinking and, although his mother was very attached to her sons, there was no discipline in the home. The atmosphere, as Dr Walker described it in her report, was one of 'disorganisation, resentment and fear'. Despite being intellectually gifted, he did not give his schooling the attention it required and he left school at the age of sixteen, having attained his School Certificate. At the same age his father threw him out of the home and he lived in Kings Cross, working at clubs in the area. While he was successful in that employment, the work was stressful and the people he mixed with did little to develop his faith in humanity. He married his first wife when he was eighteen years of age and they had two daughters, who are now teenagers. He worked hard and for increasingly long hours, to provide materially for his wife. She remained at home, which conformed to his conservative views about the role of a woman in marriage but which stifled her. Although there was affection between them and they were both devoted to their daughters, the relationship became strained. Neither had the maturity and ability to communicate as necessary to deal with the situation. He had difficulty controlling his temper, and he became possessive of her and fearful that she was being unfaithful to him. It was this belief, apparently unfounded, which led to the assault upon her to which I have referred. In that same year, 1994, their marriage came to an end. Between 1994 and 1995 Mr Nitrovic undertook psychotherapy with Dr Walker. When she first saw him she referred him to Dr Clark, who diagnosed dysthymia (chronic low grade depression) and prescribed appropriate medication. He committed himself to therapy with Dr Walker at that time and she observed him to make considerable progress. He had a relationship with another woman, which did not endure but which led to the birth of a son. He continued to support that boy and his two daughters, both emotionally and financially. It is clear that he has always been a hard worker. In more recent years he worked as a foreman with a gyprock contractor, who has provided a reference which speaks very highly of him. Mr Nitrovic commenced his relationship with his present wife, Suzanne, in 1997 and they married in the following year. They have a son, born on 29 June 2000. Sadly, the child was not yet three months old when Mr Nitrovic was taken into custody on 13 September 2000, following the jury's verdicts. Suzanne Nitrovic is an intelligent and capable woman, who remains supportive of her husband and visits him regularly with their son. Character references tendered on his behalf describe him as a person of integrity and responsibility, who is generous and considerate of others. He has received very positive reports from prison officers since he has been in custody. It appears that he is a respected member of the Inmate Development Committee at the prison where he is housed and he has been involved in a program to assist young people to avoid deterioration into a criminal lifestyle. It is appropriate to have regard to the fact that Mr Nitrovic was seriously injured in the course of this incident, although I do not understand him to have suffered any permanent disability: cf R v Barci (1994) 76 A Crim R 103 at 107, 110-111. Despite those injuries, he was engaged in strenuous physical work with the gyprock company while on bail awaiting trial. He was also accepted for University entrance, even though he had not completed his schooling, but financial constraints prevented him from pursuing any course of study. In 1997 Suzanne Nitrovic's brother, who was a good friend of his, was murdered. This was most distressing for him as, of course, was the more recent death of his own brother. Since being in custody he has again seen Dr Clark, who has provided a recent report to the effect that he still suffers from dysthymia. After his arrest in 1998 he resumed psychotherapy with Dr Walker, who has also provided a recent report and who gave oral evidence in the sentence proceedings. I should record that I do not accept a submission by his counsel that this material raises the principles relating to general deterrence considered by Gleeson CJ in R v Engert (1995) 84 A Crim R 67. Mr Nitrovic told Dr Clark that he accepted imprisonment as inevitable and saw it as 'a form of penance'. This suggests a measure of insight into the seriousness of these crimes and a sense of responsibility for the deaths of the victims. Dr Walker's report of 4 December 2000 concludes as follows: 'Zeljko Nitrovic has attended intensive therapy with me 1994 to 1995 and 1998 to 2000. I have observed and documented over this time maturing and personality growth. He has had a focus to his life since marrying Suzana and the birth of their son Steve, despite the stresses and suffering of the murder of a very good friend, being almost killed himself and being on bail for two and a half years. During this time he has done hard physical work despite his significant injuries and has gained university entry despite his lack of education. His prognosis for a law-abiding future is good.' In June 1998 he was in custody for a little over two weeks before he was released on bail. I have regard to that short period of custody, together with the fact that he was then subject to fairly onerous bail conditions until his trial almost two years later."

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