R v Michael Basanovic; R v Wade Basanovic - [2016] NSWSC 292

Supreme Court

New South Wales

Case Name:	R v Michael Basanovic; R v Wade Basanovic
Medium Neutral Citation:	[2016] NSWSC 292
Hearing Date(s):	27/7/2015 – 29/7/2015, 4/8/2015 – 7/8/2015; 10/8/2015; 12/8/2015 – 13/8/2015; 17/8/2015 – 20/8/2015; 24/8/2015 – 28/8/2015; 31/8/2015 & 11/2/2016
Date of Orders:	21 March 2016
Decision Date:	21 March 2016
Jurisdiction:	Common Law
Before:	Davies J
Decision:	Michael Basanovic, for causing grievous bodily harm to Michael Bell with intent to cause grievous bodily harm is convicted and sentenced to a non-parole period of seven years commencing 8 May 2013 and expiring 7 May 2020 with an additional term of two years and four months expiring 7 September 2022. For the murder of Zeljko Mitrovic he is convicted and sentenced to a non-parole period of 18 years commencing 8 May 2016 and expiring 7 May 2034 with an additional term of six years and nine months expiring 7 February 2041. Wade Basanovic, for causing grievous bodily harm to Michael Bell with intent to cause grievous bodily harm is convicted and sentenced to a non-parole period of seven years commencing 4 May 2013 and expiring 3 May 2020 with an additional term of two years and four months expiring 3 September 2022. For the manslaughter of Zeljko Mitrovic he is convicted and sentenced to a non-parole period of eight years commencing 4 May 2016 and expiring 3 May 2024 with an additional term of three years and six months expiring 3 November 2027.
Catchwords:	CRIMINAL LAW – sentence – murder – manslaughter – joint criminal enterprise – shooter guilty of manslaughter for excessive self-defence of co-offender – co-offender guilty of murder – fact-finding – need to find facts consistent with both verdicts – prior bad relationship between co- offender and victim - different motivations of offenders for the joint criminal enterprise to kill the victim explains different verdicts - objective seriousness of both offences – importance of general deterrence where offenders took the law into their own hands CRIMINAL LAW – cause grievous bodily harm with intent - innocent party seriously injured by accident during shooting – transferred intent – offenders found guilty of causing grievous bodily harm with intent – objective seriousness – other members of the public present - recklessness – seriousness of injuries – no remorse - accumulation of sentences with murder and manslaughter sentences
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	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
Category:	Sentence
Parties:	Michael Basanovic (Accused) Wade Adil Basanovic (Accused) Crown
Representation:	Counsel: J Korn (Michael Basanovic – Accused) T Edwards (Wade Adil Basanovic – Accused) S Herbert (Crown) Solicitors: Korn Macdougall Legal (Michael Basanovic – Accused) Korn Macdougall Legal (Wade Adil Basanovic – Accused) Solicitor for…

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.

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Details

Case: [2016] NSWSC 292
Decision Date: 21 March 2016

CaseChat Overview and Summary

In the case of R v Michael Basanovic; R v Wade Basanovic, the two respondents were convicted for their roles in the fatal shooting of a victim. The case was heard in the Supreme Court of Victoria. The dispute involved the interpretation of the law surrounding the offences of murder and manslaughter, as well as the related offence of causing grievous bodily harm with intent. The primary legal issues were whether the shooter was guilty of manslaughter due to excessive self-defence of a co-offender, and whether the co-offender was guilty of murder. Additionally, the court had to determine whether the offenders were guilty of causing grievous bodily harm with intent to an innocent party who was seriously injured during the shooting.

The court examined the facts of the case, including the prior bad relationship between the co-offender and the victim, and the different motivations of the offenders for participating in the joint criminal enterprise. The court found that the facts were consistent with both verdicts, as the different motivations of the offenders explained the different verdicts. The court also considered the objective seriousness of both offences and the importance of general deterrence where the offenders took the law into their own hands. The court found that the shooter was guilty of manslaughter due to excessive self-defence of the co-offender, while the co-offender was guilty of murder. Furthermore, the offenders were found guilty of causing grievous bodily harm with intent to the innocent party who was seriously injured during the shooting.

The court also considered the objective seriousness of the offences, the recklessness of the offenders, the seriousness of the injuries, and the lack of remorse displayed by the offenders. The court held that the offenders' actions warranted severe punishment and sentenced them accordingly. The court imposed an accumulation of sentences for the murder, manslaughter, and causing grievous bodily harm with intent offences. The respondents were sentenced to lengthy periods of imprisonment, reflecting the gravity of their crimes and the need for general deterrence.

In conclusion, the court found the respondents guilty of murder, manslaughter, and causing grievous bodily harm with intent. The court imposed severe sentences, taking into account the objective seriousness of the offences, the recklessness of the offenders, the seriousness of the injuries, and the lack of remorse. The court emphasised the importance of general deterrence in cases where individuals take the law into their own hands.

Orders