R v Basanovic - [2019] NSWSC 1770

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Basanovic [2019] NSWSC 1770
Hearing dates: 4 December 2019
Decision date: 11 December 2019
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
(1) Convicted of the offences of manslaughter and inflicting grievous bodily harm with the intent to do so.
(2) Total head sentence of 13 years 8 months with a total non-parole period of 10 years 3 months imposed, to commence on 8 May 2013.
Catchwords: CRIMINAL LAW – Sentence – Manslaughter – Causing grievous bodily harm with intent to do so – Conviction for murder the subject of successful appeal – Pleas of guilty – Reduction of culpability to manslaughter by partial defence of excessive self-defence – Planned shooting of deceased with handgun – Uninvolved bystander seriously wounded – Parity – “Ceiling principle” limiting re-sentence after successful appeal on offence involving grievous bodily harm
Legislation Cited: Crimes Act 1900 (NSW), s 421
Cases Cited: R v Bedford (1986) 5 NSWLR 711
R v Michael Basanovic; R v Wade Basanovic [2016] NSWSC 292
R v Michael Basanovic; R v Wade Basanovic [2018] NSWCCA 246
Category: Sentence
Parties: Regina (Crown)
Muho Mick Basanovic (Offender)
Representation:
Counsel:
Mr G Newton (Crown)
Ms A Francis (Offender)
Solicitors:
Solicitor for Public Prosecution (Crown)
Hanna Legal (Offender)

File Number(s): 2013/63525

Judgment

Background

Many years ago, Mr Muho Mick Basanovic (the offender) was charged with two offences that arose from a shooting that occurred on 15 January 2013 in the Sydney suburb of Wetherill Park. The first was the murder of Mr Zeljko “Steve” Mitrovic (the deceased). The second was the causing of grievous bodily harm, with intent to do so, to Mr Michael Bell.
The offender subsequently stood trial in 2015 before Davies J and a jury, along with his son, Mr Wade Basanovic (the co-offender), who was jointly charged with the same offences.
The Crown case was as follows. The offender and co-offender had travelled to the business premises of the deceased one afternoon. They were accompanied by other men. The co-offender repeatedly shot the deceased to the chest with a handgun provided to him by his father, the offender. Mr Bell was shot and seriously wounded in the arm whilst the co-offender was attempting to shoot the deceased yet again. All of the acts of the co-offender were in accordance with a joint criminal enterprise between himself and his father.
The position at trial of the co-offender was that he had indeed shot those two persons, the deceased with the intention to kill him, and Mr Bell “accidentally”, in the sense that he had indeed been intending to shoot the deceased with that projectile as well, but missed him. His position was that he had been acting in “complete” self-defence, and should be acquitted of both murder and manslaughter with regard to the death of the deceased. His contention was that he should also be acquitted of the intentional infliction of grievous bodily harm upon the other…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Basanovic

Details

AGLC: R v Basanovic [2019] NSWSC 1770
Case: [2019] NSWSC 1770
Decision Date: 11 December 2019

CaseChat Overview and Summary

In the case of R v Basanovic, the accused, Mr Basanovic, faced the Supreme Court of Victoria for the sentencing of his crime. The dispute arose from a planned shooting incident where Mr Basanovic, armed with a handgun, shot and killed an individual, and in the process, seriously wounded an uninvolved bystander. The court was required to determine an appropriate sentence after the accused's original conviction for murder was overturned on appeal, and his culpability was reduced to manslaughter due to the partial defence of excessive self-defence.

The central legal issues before the court involved the principles of sentencing in cases of manslaughter, particularly where the original offence was murder, and the circumstances that led to a reduction in culpability. The court had to consider the principle of parity, which demands consistency in sentencing for similar offences, and the "ceiling principle," which limits the re-sentencing of an offender after a successful appeal on a more serious charge.

The court examined the severity of the original crime, the nature of the manslaughter plea, and the impact of the "ceiling principle." It was noted that the original murder conviction involved a planned shooting with intent to cause grievous bodily harm. The court determined that, despite the reduction in culpability, the original severity of the crime warranted a sentence that reflected the seriousness of the act. The court also considered the need for deterrence and the protection of society, ultimately concluding that the appropriate sentence should reflect the gravity of the original offence while accounting for the reduced culpability.

The Supreme Court of Victoria sentenced Mr Basanovic to a term of imprisonment, considering the principles of parity and the "ceiling principle." The sentence was designed to balance the seriousness of the original crime with the reduced culpability, ensuring that it was both proportionate and consistent with similar cases.

Orders