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Supreme Court 11 December 2019

R v Basanovic

[2019] NSWSC 1770

Assault & violenceHomicide
CRIMINAL LAW SENTENCE MANSLAUGHTER PLEAS OF GUILTY DEFENCE UNINVOLVED BYSTANDER SERIOUSLY WOUNDED

Citation: R v Basanovic [2019] NSWSC 1770
Court: Supreme Court of New South Wales
Date: 11 December 2019
Judge(s): Button J

Background

The offender was originally tried in 2015 alongside his son for the murder of one man and the infliction of grievous bodily harm on another, arising from a planned shooting at a Wetherill Park business premises on 15 January 2013. The Crown case was that the offender supplied his son with a handgun and participated in a joint criminal enterprise to kill the deceased, who had allegedly threatened the offender's life. An uninvolved bystander was seriously wounded when a bullet missed the deceased.

At trial, the offender denied any joint criminal enterprise and gave evidence that the trip to the deceased's workplace was merely to talk. The jury rejected that evidence and convicted him of murder. Davies J sentenced both men in 2016, with the offender receiving a substantially heavier total sentence than his son, who had been convicted only of manslaughter on the basis of excessive self-defence.

The offender's murder conviction was overturned by the Court of Criminal Appeal in 2018. The appeal succeeded on the ground that the trial judge was required to leave self-defence to the jury despite the offender's own denial of any involvement in a criminal enterprise. When the matter returned for retrial, the offender pleaded guilty to manslaughter (accepted on the basis of excessive self-defence under s 421 of the Crimes Act 1900) and guilty to intentionally causing grievous bodily harm to the bystander. Button J then conducted the re-sentencing exercise.

  • What sentence was appropriate for manslaughter founded on excessive self-defence, and for intentionally causing grievous bodily harm, having regard to the objective gravity of each offence?
  • How did the parity principle apply, given the co-offender's (the son's) earlier sentence remained in place?
  • How did the "ceiling principle" constrain the re-sentence, given the offender had successfully appealed his original, heavier conviction?
  • What weight should be given to the offender's guilty pleas, his history, his conduct during and after the offences, and the hardships of custody?

Decision

Button J assessed both offences as very grave. On the manslaughter count, his Honour acknowledged that excessive self-defence reduced culpability from murder, and that the Crown accepted the offender held a genuine, if mistaken, belief that the deceased posed a lethal threat. Nonetheless, the killing was planned, carried out in broad daylight in front of witnesses, with an illegally obtained firearm, against a victim who was unarmed at the moment of death and presented no immediate threat. The impossibility of going to police was noted but did not substantially reduce objective gravity, given the offender had chosen to operate within the criminal drug trade.

The parity principle required Button J to have close regard to the sentences originally imposed on the co-offender by Davies J. The "ceiling principle," derived from R v Bedford (1986) 5 NSWLR 711, operated to prevent the re-sentence from exceeding the original sentence imposed after the first trial, effectively capping the overall penalty the offender could now receive. Diagrams of both the co-offender's and the offender's original sentencing structures were annexed to assist in the analysis.

His Honour found that partial cumulation of the two sentences was necessary to reflect the distinct criminality involved in each offence. After accounting for the guilty pleas, time already served, the constraints imposed by the ceiling and parity principles, and the hardships of custody, Button J arrived at sentences he considered represented the least that could properly be imposed given the profoundly anti-social nature of the offending.

Orders Made

  • The offender was convicted of manslaughter and of inflicting grievous bodily harm with intent to do so.
  • For grievous bodily harm: head sentence of 7 years 5 months, with a non-parole period of 5 years 6 months commencing 8 May 2013 and expiring 7 November 2018; parole period of 1 year 11 months expiring 7 October 2020.
  • For manslaughter: head sentence of 11 years 2 months, with a non-parole period of 7 years 9 months commencing 8 November 2015 and expiring 7 August 2023; parole period of 3 years 5 months expiring 7 January 2027.
  • Both sentences were fully backdated to 8 May 2013, with the manslaughter sentence commencing 2 years and 6 months after the grievous bodily harm sentence.
  • Total head sentence: 13 years 8 months; total non-parole period: 10 years 3 months.
  • Earliest possible parole eligibility: 7 August 2023.

Key Takeaways

  • Where an offender successfully appeals a murder conviction and subsequently pleads guilty to manslaughter on the basis of excessive self-defence, the re-sentencing court must apply both the ceiling principle (capping the new sentence at the original sentence) and the parity principle (having regard to the co-offender's sentence), often simultaneously.
  • Excessive self-defence under s 421 of the Crimes Act 1900 (NSW) reduces culpability from murder to manslaughter, but Button J confirmed it does not automatically reduce objective gravity to a low or moderate level, particularly where the killing was planned, the victim was unarmed at the moment of death, and a firearm was used.
  • A genuine, well-founded fear of being killed by the deceased was accepted as a mitigating circumstance but was weighed against the deliberate, premeditated nature of the response and the offender's immersion in the drug trade, which made lawful alternatives unavailable to him.
  • The court's re-sentencing jurisdiction after a successful appeal is constrained by the ceiling principle: the new total sentence cannot exceed what was originally imposed, even if the sentencing judge might otherwise have imposed a heavier sentence.
  • Parity considerations require a sentencing court to impose a sentence that is explicable and proportionate by reference to any co-offender's sentence, particularly where structural comparisons between the two sentencing regimes are directly relevant to the outcome.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 421 (excessive self-defence)

Cases
- R v Bedford (1986) 5 NSWLR 711 (ceiling principle on re-sentence)
- R v Michael Basanovic; R v Wade Basanovic [2016] NSWSC 292 (original sentencing by Davies J)
- R v Michael Basanovic; R v Wade Basanovic [2018] NSWCCA 246 (successful appeal against murder conviction)