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Supreme Court 6 July 2001

R v Bikic

[2001] NSWSC 571

Homicide
CRIMINAL LAW SENTENCE

Citation: R v Bikic [2001] NSWSC 571
Court: Supreme Court of New South Wales, Common Law Division
Date: 6 July 2001
Judge(s): Hidden J

Background

The offender was tried for the murders of two men at Bankstown on 5 April 1998. The killings arose from what the court described as a planned ambush, during which several offenders attended a house while some participants were armed with loaded guns. The offender was one of nine men connected to the incident.

The jury returned split verdicts: guilty of the murder of one victim and guilty of the manslaughter of the other. The offender had previously faced a joint trial with six co-accused, but that jury was discharged in respect of him. Those six co-accused were each convicted of manslaughter on both counts and sentenced separately in March 2001.

The Crown did not allege that the offender personally fired either shot. The court found, consistent with the jury's verdicts, that the offender contemplated a gun might be fired with the intent requisite for murder in relation to one victim, while the other victim's death was classified as manslaughter because of the circumstances in which he was killed, not because of any conduct of the offender.

  • What sentence was appropriate for an offender convicted of both murder and manslaughter arising from a single, brief episode involving multiple co-offenders?
  • How should the principle of totality apply when imposing partially cumulative sentences for two homicide offences from the same incident?
  • How did the murder verdict affect the offender's overall culpability compared to co-offenders convicted only of manslaughter?
  • What findings of fact could properly be made for sentencing purposes, given the jury's mixed verdicts?

Decision

Hidden J reasoned that the jury's verdicts necessarily dictated specific factual findings. The offender must have contemplated that a gun could be fired with intent to kill or cause grievous bodily harm, but the jury accepted it was reasonably possible the manslaughter victim was shot under provocation. The court could not make more precise findings about who fired which shot or who struck the deceased with a gun butt, and sentenced on that evidentiary basis.

The court found the offender's objective criminality was significantly elevated above that of his co-offenders by reason of the murder verdict. The court rejected a submission that his criminality was less than that of three particular co-offenders, noting that a conviction for murder necessarily lifts overall culpability materially above that of offenders convicted only of manslaughter on both counts. His contemplation of lethal force also rendered his culpability for the manslaughter somewhat greater than four of the co-offenders, who were each sentenced to nine years for that offence.

Each sentence was crafted to reflect the criminality of the individual offence, with the murder sentence to commence partway through the manslaughter sentence. This partial cumulation was the same approach taken with the co-offenders, and was designed to give proper effect to the totality principle by recognising that both offences were components of one brief episode. Special circumstances were found to exist, warranting a departure from the standard proportionality between the head sentence and the non-parole period, consistent with the court's approach to those co-offenders who shared similar circumstances.

Pre-sentence custody of approximately one year and ten months was recognised by backdating the first sentence. The more onerous conditions of the offender's earlier custody, including classification as a high-risk prisoner and exceptional security during travel to court, were also taken into account as mitigating factors.

Orders Made

  • Manslaughter of Orhan Yildirim: ten years imprisonment, commencing 6 September 1999, with a non-parole period of seven years.
  • Murder of Mehmet Unsal: sixteen years imprisonment, commencing 6 September 2000, with a non-parole period of eleven years.
  • Effective aggregate sentence: seventeen years imprisonment, with non-parole periods aggregating twelve years from 6 September 1999.
  • Eligible for release on parole on 6 September 2011.

Key Takeaways

  • Mixed verdicts of murder and manslaughter arising from a single incident require the sentencing court to derive specific factual findings consistent with the jury's conclusions, even where precise factual matters (such as who fired which shot) remain unresolved.
  • A conviction for murder in circumstances where co-offenders were convicted only of manslaughter necessarily elevates the offender's overall culpability significantly above that of those co-offenders.
  • Partial cumulation of sentences for separate homicide offences arising from the same episode can properly reflect both the individual gravity of each offence and the principle of totality.
  • The sentencing range for manslaughter is "notoriously wide" (per R v Isaacs (1997) 41 NSWLR 374 at 381), meaning different legal bases for a manslaughter verdict do not of themselves dictate different sentence ranges.
  • Onerous custody conditions, including classification as a high-risk prisoner and exceptional security measures during court attendance, are factors properly taken into account in mitigation at sentencing.

Legislation and Cases Referenced

Cases:
- R v Isaacs (1997) 41 NSWLR 374
- R v Puta & Ors [2001] NSWSC 225