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Supreme Court 21 March 2016

R v Michael Basanovic; R v Wade Basanovic

[2016] NSWSC 292

Assault & violenceHomicide
CRIMINAL LAW SENTENCE MURDER MANSLAUGHTER JOINT CRIMINAL ENTERPRISE DEFENCE OF CO

Citation: R v Michael Basanovic; R v Wade Basanovic [2016] NSWSC 292
Court: Supreme Court of New South Wales
Date: 21 March 2016
Judge: Davies J

Background

In January 2013, the deceased was shot and killed in the upstairs office of his transport business in Wetherill Park. An employee was also shot in the arm during the incident and suffered a serious fracture. Three men were jointly charged with murder and causing grievous bodily harm with intent.

One accused (referred to here as the co-offender) was acquitted mid-trial on the direction of the judge. The two remaining accused, a father and son, faced the jury. The Crown's case was that they had entered into a joint criminal enterprise to kill the deceased, whose relationship with the father had deteriorated badly during and after his membership of an outlaw motorcycle gang.

The background to that deterioration included a serious assault on the father at a clubhouse, threats attributed to the deceased, visits by gang members to the father's parents' home, and a final text message exchange in which the deceased stated "You're a dead man." The son carried the firearm and fired the fatal shots.

  • Whether the court could find a coherent set of facts consistent with the jury returning a murder verdict against the father (as a party to a joint criminal enterprise) and a manslaughter verdict against the son (as the actual shooter, on the basis of excessive self-defence of his father)
  • How to assess objective seriousness and apply sentencing principles to murder and manslaughter arising from the same event
  • How to sentence both offenders for the grievous bodily harm offence involving the innocent employee, whose injury resulted from the same shooting
  • Whether the sentences for the killing offences and the grievous bodily harm offences should be partly accumulated or wholly concurrent
  • Whether special circumstances existed to vary the statutory ratio between the non-parole period and the additional term

Decision

Reconciling the verdicts. Davies J acknowledged that reconciling the two verdicts was not straightforward. The murder conviction against the father required acceptance of a joint criminal enterprise to kill the deceased, since it was the son who fired the gun. The manslaughter verdict against the son was explicable only on the basis of excessive self-defence, specifically that he shot in defence of his father but used unreasonable or excessive force. The court rejected provocation as an alternative explanation, consistent with the positions of both the Crown and defence counsel at trial. The court found it necessary to accept that the two men had different motivations: the father's prior grievance and the threat to his life explained why he entered the enterprise to kill, while the son's response in the moment of perceived danger to his father explained why the jury viewed his conduct through the lens of excessive self-defence.

Grievous bodily harm and transferred intent. The employee who was shot had no involvement in the dispute. His injury arose from the same shooting. Both offenders were convicted of causing grievous bodily harm with intent, with the court applying the doctrine of transferred intent: the intent to harm or kill the deceased was transferred to the innocent bystander who was actually wounded. The court noted the recklessness of carrying out a shooting in premises where other people were present.

Objective seriousness and sentencing approach. The court treated both the murder and the manslaughter as objectively serious offences. General deterrence was accorded significant weight, given that the offenders took the law into their own hands rather than seeking protection through lawful channels. Neither offender expressed remorse. The court noted the father's prior criminal history, the son's relative youth and lack of prior adult custody, and the absence of rehabilitation evidence that might reduce the sentences.

Accumulation. Because the grievous bodily harm offence arose from the same criminal episode as the killing, the sentences were not made wholly concurrent. The court partially accumulated the grievous bodily harm sentences on the murder and manslaughter sentences to reflect the distinct criminality of injuring an innocent bystander. Special circumstances were found in both cases to adjust the ratio between the non-parole period and the additional term across the overall sentence.

Orders Made

Michael Basanovic:
- Convicted of causing grievous bodily harm with intent: non-parole period of 7 years from 8 May 2013, expiring 7 May 2020; additional term of 2 years and 4 months, expiring 7 September 2022
- Convicted of murder: non-parole period of 18 years commencing 8 May 2016, expiring 7 May 2034; additional term of 6 years and 9 months, expiring 7 February 2041
- Overall: non-parole period of 21 years; additional term of 6 years and 9 months

Wade Basanovic:
- Convicted of causing grievous bodily harm with intent: non-parole period of 7 years from 4 May 2013, expiring 3 May 2020; additional term of 2 years and 4 months, expiring 3 September 2022
- Convicted of manslaughter: non-parole period of 8 years commencing 4 May 2016, expiring 3 May 2024; additional term of 3 years and 6 months, expiring 3 November 2027
- Overall: non-parole period of 11 years; additional term of 3 years and 6 months

Key Takeaways

  • Where a jury returns different verdicts against participants in a joint criminal enterprise (murder for one, manslaughter for the other), the sentencing court must identify a coherent factual basis consistent with both verdicts, even if that task is difficult. Here, the court found that different motivations and mental states as between the father and son explained the divergence.

  • Excessive self-defence producing a manslaughter verdict does not preclude a co-participant, whose own conduct was governed by a murderous intent, from being convicted of murder in respect of the same death.

  • Under the doctrine of transferred intent, both participants in a joint criminal enterprise to kill can be convicted of causing grievous bodily harm to an innocent bystander injured during the execution of that enterprise.

  • General deterrence carries particular weight where offenders respond to a perceived threat by arming themselves and executing a premeditated attack rather than seeking lawful protection, even where there is evidence of genuine fear for personal safety.

  • Partial accumulation of sentences for separate offences arising from the same criminal episode is appropriate where the second offence involves distinct harm to an independent victim, even when the underlying intent was singular.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- AM v R [2012] NSWCCA 203
- Goundar v R [2012] NSWCCA 87
- Mariam v R; R v Mariam [2013] NSWCCA 338
- R v Basanovic (No 5) [2015] NSWSC 1197
- R v Bell (1985) 2 NSWLR 466
- R v Heffernan [2005] NSWSC 739
- R v Puta & Ors [2001] NSWSC 225