Citation: R v Puta, R v Nitrovic, R v Curry, R v Mackic, R v Oldham, R v Nanai [2001] NSWSC 225
Court: Supreme Court of New South Wales, Common Law Division
Date: 30 March 2001
Judge(s): Hidden J
Background
On the night of 5 April 1998, two men were ambushed and shot dead at a house in Bankstown. Six offenders participated in the ambush: Arben Puta (the tenant of the house), Zeljko Nitrovic, Raymond Curry, Goran Mackic, Russell Oldham, and Satuala Nanai. Two other participants were granted indemnity from prosecution and gave evidence for the Crown.
All six were tried together on two counts of murder. The jury returned verdicts of guilty of manslaughter on each count. The Crown had alleged that each offender participated in a joint criminal enterprise to assault the two victims, knowing that at least one companion was armed with a loaded gun and contemplating that the gun might be discharged with murderous intent.
The court proceeded to sentence all six offenders. The remarks on sentence addressed the factual basis for each offender's manslaughter liability, the culpability of individual participants, and the appropriate penalties having regard to the circumstances of each offender.
Legal Issues
- On what factual basis should each offender be sentenced for manslaughter, given the jury's verdicts and the evidence at trial?
- Whether Puta shot one of the deceased, and what bearing that had on his sentence.
- Whether Nitrovic shot the other deceased, and what bearing that had on his sentence.
- How to structure concurrent and cumulative sentences for two counts of manslaughter arising from the same incident.
- What non-parole periods were appropriate for each offender, taking into account individual circumstances including youth, criminal history, prospects of rehabilitation, and cooperation with authorities.
Decision
The court found that the appropriate factual basis for sentencing all six offenders was that each had participated in the assault knowing that at least one companion was armed, but had not contemplated that a gun would be used with murderous intent. This was consistent with the jury's manslaughter verdicts across the board.
Hidden J declined to find that Puta had shot one of the deceased. His Honour found Puta's account no more credible than the version he had given to police, and could not conclude to the requisite degree that Puta had fired the shot. Similarly, while there was evidence that Nitrovic had shot the other deceased, His Honour was ultimately not satisfied to the requisite degree that he had done so. As a result, all six offenders were sentenced on the same legal basis.
The ambush was a planned, organised operation. The group travelled from the Sydney CBD to Bankstown armed with multiple firearms, rubber gloves, surgical tape, and rope. Five guns were recovered; three had been discharged. The court found this a serious criminal enterprise, even though the precise motive for the ambush could not be established on the evidence.
Each offender received two consecutive head sentences, with the second sentence commencing one year after the first to reflect the principle that there were two victims. Sentence lengths varied to reflect differences in each offender's degree of participation, age, background, and prospects of rehabilitation. Puta received the longest sentences, in part because of a contempt of court finding arising from conduct during the proceedings.
Orders Made
- Arben Puta: 10 years imprisonment for the manslaughter of the first victim (from 6 October 1998, non-parole period 6 years); 10 years imprisonment for the manslaughter of the second victim (from 6 October 1999, non-parole period 6 years); 3 months imprisonment for contempt of court (from 6 October 2005). Eligible for parole 6 January 2006.
- Zeljko Nitrovic: 9 years for each manslaughter count (from 13 September 2000 and 13 September 2001 respectively, each with a 5-year non-parole period). Eligible for parole 13 September 2006.
- Raymond Curry: 9 years for each manslaughter count (from 13 November 1998 and 13 November 1999, each with a 5-year non-parole period). Eligible for parole 13 November 2004.
- Goran Mackic: 9 years for each manslaughter count (from 6 December 1998 and 6 December 1999, each with a 5-year non-parole period). Eligible for parole 6 December 2004.
- Russell Oldham: 9 years for each manslaughter count (from 14 November 1998 and 14 November 1999, each with a 5-year non-parole period). Eligible for parole 14 November 2004.
- Satuala Nanai: 7.5 years for each manslaughter count (from 13 September 2000 and 13 September 2001, each with a 4-year non-parole period). Eligible for parole 13 September 2005.
Key Takeaways
- Where a jury returns manslaughter verdicts in a joint criminal enterprise murder trial, the sentencing court must identify, on the balance of probabilities, the specific factual basis on which each offender is to be sentenced, and cannot simply adopt the most serious version of the facts.
- Disputed allegations that a particular offender personally discharged the fatal shots must be proven to the requisite standard before the court will treat that as an aggravating feature at sentence; in this case, neither of the two disputed shooter allegations was made out.
- When sentencing for two counts of manslaughter arising from the same incident but involving separate victims, the Supreme Court imposed consecutive sentences with a one-year gap between their commencement dates, reflecting the totality principle while acknowledging the distinct harm caused to each victim.
- Differences in sentence lengths across co-offenders reflected individual factors including the extent of each person's participation in the joint enterprise, age, prior criminal history, and prospects of rehabilitation, even where all offenders shared the same legal basis for liability.
- A contempt of court finding arising from conduct during the proceedings was treated as a separate matter warranting its own consecutive term of imprisonment.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- R v Isaacs (1997) 41 NSWLR 374
- Pearce v The Queen (1998) 194 CLR 610
- R v Oinonen [1999] NSWCCA 310
- R v McHugh (1985) 1 NSWLR 588
- R v Groombridge (CCA, unreported, 20 September 1990)
- R v Barci (1994) 76 A Crim R 103
- R v Engert (1995) 84 A Crim R 67