R v Puta, R v Nitrovic, R v Curry, R v Mackic, R v Oldham, R v Nanai

[2001] NSWSC 225

CITATION:	R v Puta, R v Nitrovic, R v Curry, R v Mackic, R v Oldham, R v Nanai [2001] NSWSC 225
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 70040/99; 70026/99; 70209/99; 70208/99; 70016/99; 70211/99
HEARING DATE(S):	11/12/2000 - 23/02/2001
JUDGMENT DATE:	30 March 2001
PARTIES :	Regina (Crown) Arben Puta Zeljko Nitrovic Raymond Arthur Curry Goran Mackic Russell Oldham Satuala Nanai
JUDGMENT OF:	Hidden J at 1

COUNSEL :	Dan Howard with Nicole Noman (Crown) David Dalton (Puta) Jose Crespo (Nitrovic) Allan Lucas (Curry) Glenn Whitehead (Mackic) John Stratton (Oldham) Ken Horler QC (Nanai)
SOLICITORS:	Solicitor for Public Prosecutions (Crown) Watsons (Puta) Jack Rigg (Nitrovic) Tully & Co (Curry) Ray Finlayson (Mackic) Michelle Goodwin (LAC) (Oldham) Anita Betts (Nanai)
CATCHWORDS:	Sentence after verdicts of guilty of two counts of manslughter arising out of the same incident.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Isaacs (1997) 41 NSWLR 374 Pearce v The Queen (1998) 194 CLR 610 R v Oinonen [1999] NSWCCA 310 R v McHugh (1985) 1 NSWLR 588 R v Groombridge (CCA, unreported 20 September 1990) R v Barci (1994) 76 ACrim R 103 R v Engert (1995) 84 ACrim R 67
DECISION:	See paras 62-67

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL JURISDICTION

HIDDEN J

Friday 30 March 2001

70040/99 - REGINA v ARBEN PUTA
70026/99 - REGINA v ZELJKO NITROVIC
70209/99 - REGINA v RAYMOND ARTHUR CURRY
70208/99 - REGINA v GORAN MACKIC
70016/99 - REGINA v RUSSELL MERRICK OLDHAM
70211/99 - REGINA v SATUALA NANAI

Remarks on Sentence

1     HIS HONOUR: On the night of Sunday, 5 April 1998 two men, Orhan Yildirim and Mehmet Unsal, were ambushed at a house in Bankstown. In the course of that ambush both of them were shot dead. Among those involved in the ambush were the six offenders who now appear for sentence: Arben Puta, Zeljko Nitrovic, Raymond Curry, Goran Mackic, Russell Oldham and Satuala Nanai. Two other men involved in the ambush were granted indemnity from prosecution and gave evidence for the Crown. I directed that their names not be published and in these remarks I shall call them Witness One and Witness Two, by reference to the order in which they gave evidence. The Crown alleges that a ninth man was also involved and his separate trial is currently in progress.

2     The six offenders were tried together upon two counts of murder but, in respect of each count, the jury found each of them guilty of manslaughter only. Mr Yildirim was shot seven times. There was evidence, which the Crown contends is cogent, that most of those shots were fired by Mr Nitrovic. Mr Unsal was shot twice. There was evidence, upon which the Crown does not rely, that it was Mr Puta who shot him. The Crown put its case to the jury upon the basis that it did not have to prove who shot either of the deceased. It was alleged that each of the offenders was party to a joint criminal enterprise to assault the deceased, knowing that at least one of his companions was armed with a loaded gun and contemplating the possibility that that gun might be discharged with the intent to kill or to inflict grievous bodily harm.

3     Manslaughter was left to the jury on several bases. An adequate explanation of their verdicts in respect of each accused is that they were satisfied that he was a party to the assault and knew of the presence of a gun or guns, but were not satisfied that he contemplated the use of a gun with the intent requisite for murder. In relation to the offenders other than Mr Puta and Mr Nitrovic, it is common ground that that is the factual basis upon which they should be sentenced. As to Mr Puta, that is clearly the basis upon which he faces sentence for the manslaughter of Mr Yildirim but I must deal with the evidence that it was he who shot Mr Unsal. Conversely, in the case of Mr Nitrovic, that is the basis upon which he must be sentenced for the manslaughter of Mr Unsal but I must consider the evidence that it was he who shot Mr Yildirim.

4     Mr Puta, who was the tenant of the house at Bankstown, told police that he had shot Mr Unsal in self-defence. He claimed that he had arrived at the house to be set upon by a number of men, including Mr Unsal, all of whom were strangers to him. He was shot himself while struggling with Mr Unsal, who had a gun. He managed to wrest the gun from Mr Unsal and he shot him. In evidence at the trial , he admitted that much of what he had told the police about the circumstances surrounding the incident was false but he maintained his account of how it was he came to shoot Mr Unsal.

5     I find Mr Puta’s evidence no more credible than the version he gave to the police. That he himself was shot there is no doubt, but I am unable to say by whom or in what circumstances. Certainly, I could not conclude that it was he who shot Mr Unsal. That conclusion is unaffected by further scientific evidence that came to light during the current trial.

6     The question whether Mr Yildirim was shot by Mr Nitrovic is not as easily resolved. It is common ground that Mr Yildirim produced a knife when he was set upon, that he struggled with Mr Nitrovic and that he stabbed him several times, inflicting serious wounds. It is also common ground that it was then that Mr Yildirim was shot. The Crown contends that it was Mr Nitrovic who shot him, acting under provocation. Such a finding is open and would be consistent with the jury’s verdict. In the circumstances of this case, however, it may be that it would not greatly elevate the culpability of Mr Nitrovic above that of his co-offenders: cf R v Isaacs (1997) 41 NSWLR 374 at 381.

7     Certainly, there is a body of evidence to support the Crown’s contention. Witness Two did not refer to Mr Nitrovic by name, and I rejected evidence of his identification of Mr Nitrovic from photographs. However, it was the Crown case that his description of one of the men was such that it could not have been anyone else. Before the ambush, according to Witness Two, that man was in possession of a gun which could have been a .45 Ruger semi-automatic pistol. Such a gun was later found in a nearby street and there is no doubt that that weapon had been used to shoot Mr Yildirim. More importantly, Witness One, who knew Mr Nitrovic, gave evidence of seeing him shooting Mr Yildirim. Some of the physical and scientific evidence, which I need not recite, was consistent with his having done so.

8     On the other hand, Witness Two’s description of the man said to be Mr Nitrovic was unsatisfactory for reasons exposed during the trial. Of the two indemnified witnesses, I found Witness One the less impressive. Much of his account of the manner in which he saw Mr Yildirim shot is difficult to reconcile with the post-mortem findings and the ballistic evidence. I have provided only the barest summary of the evidence bearing on this question and the detailed arguments of counsel about it in the sentence proceedings. I have given the matter careful consideration but, at the end of the day, I am not satisfied to the requisite degree that it was Mr Nitrovic who shot Mr Yildirim.

9     Accordingly, all six offenders stand for sentence for manslaughter on the same legal basis. I am satisfied that the group was in possession of more than one gun and, for the purpose of sentence, it is not necessary to determine how many. That said, five guns were found either in the house or in the vicinity. Three of them had been fired. Another had clearly been brought to the house by Mr Unsal but it does not appear that it had been fired. There is no satisfactory evidence that Mr Yildirim had a gun. In the course of the ambush both Mr Unsal and Mr Yildirim were struck on the head by the butt of a gun, but I cannot say by whom.

10     The offenders other than Mr Puta, together with the two indemnified witnesses, gathered at a café in the central business district of Sydney earlier in the evening. It was the Crown case that the man currently on trial was also there. The group travelled from the café to Bankstown in two cars, clearly for the purpose of pursuing a plan to ambush the two deceased. Mr Puta admitted them to the house when they arrived. They were in possession of rubber gloves and surgical tape, as well as rope. There seems to be no doubt that the plan was to overpower the two victims and to bind and gag them. There is simply no evidence of what was then to happen to them and that remains in the realm of speculation.

11     There was evidence, which I do not find satisfactory, that the reason for the ambush was retaliation against the deceased for threats that they had made to Mr Nitrovic or, possibly, the man now on trial. That may be so, although I find it a somewhat banal motivation for such an elaborate undertaking. This also is a matter about which one can do no more than speculate. I approach the sentence of the offenders upon the basis that there is insufficient evidence to establish the motive for the attack.

12     However that may be, I could not conclude that the decision to carry guns was made prior to the arrival of the men at the house. Equally, I can make no finding about who made that decision or who, in fact, had the weapons. I have already dealt with evidence that Mr Puta and Mr Nitrovic fired guns. Witness One testified that he had seen Mr Mackic and Mr Oldham in possession of guns immediately after the incident. This evidence was tested thoroughly at the trial and it also was found wanting.

13     These matters are important, given that the gravamen of these crimes is the participation of each of the offenders in an assault knowing that at least one of his companions was armed with a gun. In submissions on sentence, considerable attention was devoted to the role of each offender in the ambush and the extent of his involvement, if any, in the planning and direction of it. I am indebted to all counsel for their careful analysis of the evidence bearing upon this matter. Upon reflection, however, I doubt that very much turns on it for the purpose of determining each offender’s culpability for the manslaughter of the two deceased. I might add that, although it was common ground that Mr Nanai’s role was subsidiary, it is difficult to arrive at any conclusion beyond reasonable doubt about the participation of the other men. Of itself, this is not a matter which would justify differential treatment of the offenders.

14     Mr Puta has pleaded guilty to a charge of contempt of court, arising from his refusal at the trial to answer certain questions asked of him in cross-examination by the Crown prosecutor. Put broadly, those questions related to the identity of persons other than his co-offenders who, according to him, were present at the house that night. He maintained his stance despite my directing him to answer those questions and informing him of the consequences of his refusal to do so.

15     I turn, then, to the subjective case of each offender.

Arben (Benny) Puta

16     Mr Puta was thirty-eight years old at the time of the incident and is now forty-one. He has a criminal record comprising sporadic entries from 1981. In the 1980s he was sentenced to imprisonment for an offence of violence and fined for firearms offences but, given their age, I do not consider these convictions to be of any significance. In the early 1990s he was dealt with for gaming offences and further firearms offences. Importantly, however, he was sentenced in 1993 to imprisonment for seven years, comprising a minimum term of five years and an additional term of two years, for serious drug offences. He was on parole in respect of those matters at the time he committed the offences with which I am concerned.

17     Mr Puta was born in Albania, where he was brought up on a farm. His mother died when he was only about ten or eleven years old, whereupon he left school to work on the farm. As a result, he had little formal education and it seems that his life thereafter was emotionally deprived. In his early teens he ran away to fend for himself, and for some years he lived and worked in various parts of Europe. It was a hard life, exacerbated by occasional conflict with fellow workers.

18     He came to this country in 1980. He has some relatives here, including a woman who is prepared to accommodate him upon his release. He has lived and worked in Melbourne and Sydney, and in both cities he has been successful in the bakery business. He married in 1983, but that relationship ended when he was taken into custody for the drug offences to which I have referred. Upon his release on parole he re-married, but that marriage also came to an end upon his arrest for the present matter. He has been a heavy gambler, and it would appear that his offences in recent years have arisen from criminal associations formed as a result of that predilection.

19     References from members of the Albanian community in Sydney and Melbourne attest to his kindness, generosity and reliability. To the same effect is a reference from the relative to whom I have referred, whilst she acknowledges that he is “no angel”. A psychological report of Ms Anita Duffy describes him as “friendly and open” but notes “strong needs for dependency”, assessing him as “a person who craves attention, recognition and the respect of the others”. Astutely, Ms Duffy observes:

Benny is an interesting mixture of street-wise, entrepreneurial and opportunistic as well as being ingenuous and somewhat childlike, easily led by his emotions. It is this combination of personality characteristics which resulted in his business successes in Australia but also led him to associate with more underworld and sinister figures through his gambling connections.

20     Mr Puta’s behaviour as a prisoner has been remarkable and is greatly to his credit. I also have a number of references from prison officers, as well as a registered nurse and a social worker in the prison system. All of them speak highly of his courtesy, industriousness and trustworthiness. One describes him as “very helpful, compassionate and caring to both the staff and his fellow inmates”. It goes on to record the “special care” which he extends to young offenders and first time prisoners, helping them to cope with the system and to adjust to the loss of their liberty.

21     More significantly, in the early 1990s he displayed considerable courage on two occasions in protecting prison officers in situations of danger. On one occasion he did so by preventing rioting prisoners from gaining access to a reception room in one of the prisons in the Long Bay complex. On the other occasion, also at Long Bay, he rescued an officer who was being attacked by a group of prisoners and who might otherwise have been seriously injured or even killed.

22     There is conflicting evidence from Mr Puta’s solicitor, on the one hand, and a solicitor from the Office of the Director of Public Prosecutions and a Deputy Senior Crown Prosecutor who were earlier involved in this case, on the other, as to whether an offer by Mr Puta to plead guilty to manslaughter was conveyed to the Crown before the trial. There may have been some informal discussion about that matter but it does not appear to me that any such offer was made. Mr Puta’s solicitor acknowledged that he could find no notes of any such discussion and his recollection of the matter may well be faulty. Certainly, notwithstanding the jury’s verdicts, it is difficult to see on what basis the Crown might have accepted the offer of pleas of guilty to manslaughter on the material then available.

23     For these reasons, the situation here is very different from that considered in R v Oinonen [1999] NSWCCA 310. Nevertheless, I accept that at a relatively early stage Mr Puta raised with his solicitor the possibility of pleas of guilty to lesser charges, most likely manslaughter. This may have been no more than a recognition of the real risk of being found guilty of murder, but I am prepared to accept that it demonstrates some sense of responsibility for the tragic events of 5 April 1998. It is consistent with his expressions of remorse over the deaths of the two men to Ms Duffy, which I accept as genuine.

24     Mr Puta was arrested on the day after the incident, 6 April 1998, and has remained in custody since. On 7 May 1998 the Parole Board revoked his parole in respect of the drug offences, having effect from 22 January 1998. On 29 June 1998 that decision was reviewed and was confirmed. Mr Puta served the balance of the additional term, which expired on 7 August 1999.

25     I received in evidence some records of the Parole Board which, in the submission of the Crown prosecutor, demonstrate that the revocation of his parole was the result of his breach of a condition of the parole that he refrain from gambling, rather than his being charged over the incident with which I am concerned. Accordingly, it was argued, I should date the sentences which I must now pass from the day after the expiration of that additional term, 8 August 1999. Counsel for Mr Puta submitted that it appears from the Board’s records that the present charges were the substantial, if not the only, reason for the revocation of parole and that I should back-date the sentences to the date of his arrest. I must say that I find some inconsistency in the Board’s documents, and I think it fair to conclude that the present matter had a part to play in the decision to revoke parole.

26 A broad discretion to back-date a sentence is conferred by s47 of the Crimes (Sentencing Procedure) Act 1999, and subs (3) of that section recognizes the principle that a sentence should normally be back-dated to embrace a period of pre-sentence custody exclusively referable to the offence for which it is passed: R v McHugh (1985) 1 NSWLR 588 at 590-1. However, Mr Puta’s period in custody prior to sentence cannot be characterised in that way. On the other hand, the refusal of bail on the present matters prevented him from applying for re-parole. I think that justice would be done by back-dating the sentences so as to encompass part of the additional term which he was called upon to serve: cf R v Groombridge (CCA, unreported 20 September 1990) . The appropriate commencement date is 6 October 1998.

Zjelko (Steve) Nitrovic

27     Mr Nitrovic was thirty years old at the time of the incident and is now thirty-three. His criminal record is brief, the earliest entries in 1988 and 1990 being for offences which do not appear to be of any consequence. However, in 1994 he was sentenced to a term of periodic detention for a serious assault upon his first wife and was placed on recognizances for offences arising from his unlawful possession of some firearms, which were discovered by police who attended his home in response to his wife’s complaint. This arrest led to his contact with Dr Wendy-Louise Walker, psychologist, and Dr Thomas Clark, psychiatrist. The circumstances of the assault must be understood in the light of his background, to which I now turn.

28     Mr Nitrovic is of Serbian origin, coming to this country with his parents at the age of two. He had a younger brother, who tragically died from epilepsy during the period he has been in custody awaiting sentence. His family life was very disturbed. His father was violent and given to excessive drinking and, although his mother was very attached to her sons, there was no discipline in the home. The atmosphere, as Dr Walker described it in her report, was one of “disorganisation, resentment and fear”. Despite being intellectually gifted, he did not give his schooling the attention it required and he left school at the age of sixteen, having attained his School Certificate. At the same age his father threw him out of the home and he lived in Kings Cross, working at clubs in the area. While he was successful in that employment, the work was stressful and the people he mixed with did little to develop his faith in humanity.

29     He married his first wife when he was eighteen years of age and they had two daughters, who are now teenagers. He worked hard, and for increasingly long hours, to provide materially for his wife. She remained at home, which conformed to his conservative views about the role of a woman in a marriage but which stifled her. Although there was affection between them and they were both devoted to their daughters, the relationship became strained. Neither had the maturity and ability to communicate necessary to deal with the situation. He had difficulty controlling his temper, and he became possessive of her and fearful that she was being unfaithful to him. It was this belief, apparently unfounded, which led to the assault upon her to which I have referred. In that same year, 1994, their marriage came to an end.

30     Between 1994 and 1995 Mr Nitrovic undertook psychotherapy with Dr Walker. When she first saw him she referred him to Dr Clark, who diagnosed dysthymia (chronic low grade depression) and prescribed appropriate medication. He committed himself to therapy with Dr Walker at that time and she observed him to make considerable progress. He had a relationship with another woman, which did not endure but which led to the birth of a son. He continued to support that boy and his two daughters, both emotionally and financially. It is clear that he has always been a hard worker. In more recent years he worked as a foreman with a gyprock contractor, who has provided a reference which speaks very highly of him.

31     Mr Nitrovic commenced his relationship with his present wife, Suzanne, in 1997 and they married in the following year. They have a son, born on 29 June 2000. Sadly, the child was not yet three months old when Mr Nitrovic was taken into custody on 13 September 2000, following the jury’s verdicts. Suzanne Nitrovic is an intelligent and capable woman, who remains supportive of her husband and visits him regularly with their son.

32     Character references tendered on his behalf describe him as a person of integrity and responsibility, who is generous and considerate of others. He has received very positive reports from prison officers since he has been in custody. It appears that he is a respected member of the Inmate Development Committee at the prison where he is housed and he has been involved in a program to assist young people to avoid deterioration into a criminal lifestyle.

33     It is appropriate to have regard to the fact that Mr Nitrovic was seriously injured in the course of this incident, although I do not understand him to have suffered any permanent disability: cf R v Barci (1994) 76 ACrim R 103 at 107, 110-111. Despite those injuries, he was engaged in strenuous physical work with the gyprock company while on bail awaiting trial. He was also accepted for University entrance, even though he had not completed his schooling, but financial constraints prevented him from pursuing any course of study. In 1997 Suzanne Nitrovic’s brother, who was a good friend of his, was murdered. This was most distressing for him as, of course, was the more recent death of his own brother.

34     Since being in custody he has again seen Dr Clark, who has provided a recent report to the effect that he still suffers from dysthymia. After his arrest in 1998 he resumed psychotherapy with Dr Walker, who has also provided a recent report and who gave oral evidence in the sentence proceedings. I should record that I do not accept a submission by his counsel that this material raises the principles relating to general deterrence considered by Gleeson CJ in R v Engert (1995) 84 ACrim R 67.

35     Mr Nitrovic told Dr Clark that he accepted imprisonment as inevitable and saw it as “a form of penance”. This suggests a measure of insight into the seriousness of these crimes and a sense of responsibility for the deaths of the victims. Dr Walker’s report of 4 December 2000 concludes as follows:

Zeljko Nitrovic has attended intensive therapy with me 1994 to 1995 and 1998 to 2000. I have observed and documented over this time maturing and personality growth. He has had a focus to his life since marrying Suzanna and the birth of their son Steve, despite the stresses and suffering of the murder of a very good friend, being almost killed himself and being on bail for two and a half years. During this time he has done hard physical work despite his significant injuries and has gained university entry despite his lack of education. His prognosis for a law-abiding future is good.

36     In June 1998 he was in custody for a little over two weeks before he was released on bail. I have regard to that short period of custody, together with the fact that he was then subject to fairly onerous bail conditions until his trial almost two years later.

Raymond Curry

37     Mr Curry was twenty-four years old at the time of the incident, and is now twenty-seven. He has a criminal record comprising driving offences in 1990, charges of common assault and assaulting police in 1991 and a further charge of common assault in 1996. I have a summary of the facts of that last matter, from which it appears that it was not a particularly serious offence. All these matters were dealt with by way of recognizance or fine and he has never before been sentenced to a term of imprisonment.

38     Mr Curry was born in New Zealand, of Samoan parents. He is the second eldest of four children and the family migrated to this country in 1986. He had the benefit of a good upbringing. He was educated to School Certificate standard and has had a satisfactory employment record, in a variety of jobs, since that time. It would appear that it was through his involvement in the security industry that he met some of his co-offenders.

39     His family remain supportive of him, and they consider his involvement in these offences to be entirely out of character. He has been in a de-facto relationship of long standing, which has endured despite his intimate involvement with another woman in more recent years, and he and his partner have two children. She also cannot understand his involvement in an incident such as this but she continues to support him.

40     Mr Curry has been in custody since his arrest on 13 November 1998. I have received a report of Mr Philip Gorrell, psychologist, from which it appears that he has been chastened by the experience of custody. To his credit, he has been involved in assisting new inmates to adapt to prison life and helping prisoners of Pacific Island origin to deal with their problems within the system. To Mr Gorrell he expressed his remorse over the deaths of the victims, which I accept as genuine. It is consistent with his offer, conveyed through his counsel to the Crown before the trial, to plead guilty to manslaughter. As I have said, it is difficult to see on what basis the Crown could have accepted that offer and it does not appear that that matter was discussed. For that reason, his case also is different from Oinonen (supra). Nevertheless, it is a matter properly to be taken into account.

41     I also have regard to the fact that Mr Curry drove Mr Nitrovic to a hospital after the incident for treatment of his stab wounds. Although he told hospital staff a false story, he obviously exposed himself to the risk of being identified as one of those involved in the incident. More importantly, he may well have saved Mr Nitrovic’s life.

Goran Mackic

42     Mr Mackic was thirty-seven years old at the time of the incident, and is now forty. Apart from a minor matter which need not be mentioned, his criminal record consists of convictions for offences of dishonesty in 1995 and 1997, dealt with by non-custodial orders.

43     It appears that he is of Bosnian origin. The only material about his background before me is a statement by his wife, Zorica Mackic, from whom he has been separated since late 1995. They met in Sarajevo in 1979 when they were both university students. Mr Mackic discontinued his studies and spent a period of Army service. He then commenced a small business manufacturing and selling tourist souvenirs. There are two children of the marriage, now aged ten and thirteen.

44     In 1992, when civil war broke out in Bosnia, the family fled to Serbia and migrated to Australia. They had a few friends here but no relatives. Mr Mackic studied English, and obtained work as a salesman as well as in the security industry.

45     He and his wife were granted Australian citizenship in 1994. They sponsored the immigration to Australia of their parents and some of their relatives. By the mid 1990s Mr Mackic was working long hours at several jobs, and his wife believes that he may have become depressed “and suffered some sort of breakdown”. He developed a gambling habit which, I assume, led to the offences of dishonesty to which I have referred. His convictions led to the loss of his security license, and it was in these circumstances that the marriage broke down. Mrs Mackic writes, however, that she has never known her husband to be violent.

46     He has been in custody since his arrest on 6 December 1998. His children have been visiting him in gaol. He also is well regarded by the prison authorities, who describe him as a well behaved and co-operative inmate who has committed himself to furthering his education. Among other courses, he has attended classes in art and design. I received in evidence some of his artwork, which displays a remarkable talent.

Russell Oldham

47     Mr Oldham was thirty-one years old at the time of the incident, and is now thirty-four. He has previous convictions for assault occasioning actual bodily harm and using a prohibited drug in 1994, for which he was fined, and offences arising from his possession of a shortened firearm in 1997, for which he was placed on recognizances and ordered to perform community service.

48     I received in evidence his handwritten statement setting out his background, much of which was confirmed in the oral evidence of his father. From the statement it is apparent that he is an intelligent and articulate man. He is the youngest of three children and had a stable and supportive upbringing. He obtained his Higher School Certificate and was an accomplished cricketer. He had a particular interest in astronomy, which motivated him to commence a science degree at Sydney University in 1985. In the following year he changed to the Faculty of Medicine but did not complete the course.

49     In 1987 he deferred his studies and took up employment in the security industry, where he progressed quickly to a position of some seniority. In 1989 he returned to university but in the following year, again without completing his studies, he returned to security work. In subsequent years he pursued various business interests. I gather from his statement that he has been in a long standing relationship with a woman but they have no children.

50     I found his father to be an impressive witness. He said that he was “shocked” by his son’s involvement in the incident at Bankstown, describing him as a person who is not normally aggressive and, “has always been tolerant and understanding of the underdog”. A reference from a prison chaplain speaks well of his behaviour and it appears that he has made the best use he can of educational facilities at the prison, being described by an education officer as “an excellent and self directed student”. He has been in custody since his arrest on 14 November 1998.

Satuala Nanai

51     Mr Nanai was twenty-eight years old at the time of the incident, and is now thirty-one. His only previous conviction is for assault occasioning actual bodily harm in 1995, for which he was placed on a recognizance. He was still subject to that recognizance at the time of these offences, although he was at the tail end of it. He gave evidence at the trial of the circumstances of that offence and they do little to discredit him. I attach no significance to it, although the currency of the recognizance cannot be ignored.

52     Mr Nanai raised his character at the trial and that evidence was supplemented by an impressive body of character evidence called in the sentence proceedings. I heard from his eldest brother, his wife, his employer and two personal friends, one of them also a business associate.

53     Mr Nanai’s origins are somewhat similar to those of Mr Curry. He was born in Western Samoa, the third of seven children. The family migrated to New Zealand when he was very young and he was brought up in Auckland. When he was twelve his father espoused the Jehovah’s Witnesses faith and the family pursued a strictly religious lifestyle, which inhibited his social contacts and sporting activities. He was educated in New Zealand to the equivalent of Higher School Certificate standard, and thereafter he completed courses in electronic engineering and computing.

54     In 1989 he came to this country, settling in Sydney. He has worked as a supervisor with a warehouse company in Wetherill Park, as well as pursuing a welding business in partnership at Bungendore, near Canberra. In 1995 he married and his daughter was born in the following year.

55     A psychiatric report of Dr Jonathan Carne observes, consistently with the other evidence, that Mr Nanai’s life has “revolved around his family and his work”. The oral evidence attests to his devotion to his wife and daughter, and I have no doubt that the relationship will survive the term of imprisonment which he must serve. His employer and his business associate spoke in the highest terms of his industriousness and reliability. He has pursued sporting interests since being in this country, and there is no doubt of his fitness and physical strength. Nevertheless, all the witnesses described him as a gentle man, whom they had never known to be violent. Asked about his temperament, his business associate said that he was “probably one of the most gentle men I’ve met in my life”. It is sad, indeed, to see such a fine young man facing sentence for such serious offences.

56     He was arrested on 13 November 1998 and was in custody for almost a week. He was then on bail awaiting trial, and throughout the trial, until he was returned to custody after the jury’s verdicts on 13 September 2000.

Conditions of Custody

57     For a significant portion of their period of pre-sentence custody Mr Puta, Mr Curry, Mr Mackic and Mr Oldham were classified as high risk prisoners. This appears to be the result of the nature of the offences for which they were charged, rather than any allegation of misconduct whilst in prison. The effect of that classification was to place some restriction upon their movements within the prison and their access to sporting and educational facilities. Their phone calls and visits were monitored, and they were liable to frequent moves from cell to cell. In addition, they were brought to and from court each day during the trial in conditions of exceptional security. I take these matters into account in their cases.

Sentences

58     The effect of the jury’s verdicts is that each offender is to be sentenced on the basis that he was aware of the presence of guns and anticipated that they might be used to frighten, but not to wound. The fact remains, however, that this was a gathering of a large number of men in a confined space for the purpose of assaulting two other men who might be expected to resist vigorously. A considerable degree of violence was likely and the presence of loaded guns made the enterprise a very dangerous one indeed. I cannot accept the submission made by defence counsel that these offences fall into the lower order of criminality in their class.

59     On the other hand, in different ways each offender has been able to make out a favourable subjective case. Particularly is this so of Mr Nanai. All of them have good prospects of rehabilitation, and I think it most unlikely that Mr Nanai will offend again. It is largely for this reason that I have found this such a difficult, indeed troubling, sentencing exercise. In each case there are special circumstances warranting a departure from the usual proportion between head sentence and non-parole period. Despite their support in the community, all the offenders will need assistance to adjust to life at liberty after a significant period of imprisonment which, for most of them, will be their first experience of it. The Crown prosecutor did not submit to the contrary.

60     I do not consider that the differences between the subjective cases of Mr Nitrovic, Mr Curry, Mr Mackic and Mr Oldham are such as to call for disparity in the sentences passed upon them. Mr Puta must be dealt with more severely because of his more serious criminal record and the fact that he was on parole. The contempt charge calls for a short sentence, and his counsel accepts that that sentence must be cumulative upon the effective non-parole period which I propose. Conversely, the evidence of Mr Nanai’s good character entitles him to be dealt with more leniently. His counsel submitted that a disposition other than a full-time custodial sentence would be appropriate but, regrettably, I do not believe that that is an option open to me in this case.

61     Although the two deceased were killed in the course of the same brief episode, I think it appropriate to pass the same sentence on each count and direct that one be served partly cumulatively upon the other. This would reflect the criminality of the two charges, whilst having regard to totality, in accordance with the principles expounded in the joint judgment in Pearce v The Queen (1998) 194 CLR 610 at 623-4.

62     Arben Puta, for the manslaughter of Orhan Yildirim you are sentenced to imprisonment for ten years, to date from 6 October 1998, with a non-parole period of six years. For the manslaughter of Mehmet Unsal you are sentenced to imprisonment for ten years, to commence on 6 October 1999, also with a non-parole period of six years. On the charge of contempt of court, you are sentenced to imprisonment for three months, to commence on 6 October 2005. You will be eligible for release on parole on 6 January 2006.

63     Zeljko Nitrovic, for the manslaughter of Orhan Yildirim you are sentenced to imprisonment for nine years, to commence on the 13 September 2000, with a non-parole period of five years. For the manslaughter of Mehmet Unsal you are sentenced to imprisonment for nine years, to commence on 13 September 2001, also with a non-parole period of five years. You will be eligible for release on parole on 13 September 2006.

64     Raymond Curry, for the manslaughter of Orhan Yildirim you are sentenced to imprisonment for nine years, to date from the 13 November 1998, with a non-parole period of five years. For the manslaughter of Mehmet Unsal you are sentenced to imprisonment for nine years, to date from the 13 November 1999, also with a non-parole period of five years. You will be eligible for release on parole on 13 November 2004.

65     Goran Mackic, for the manslaughter of Orhan Yildirim you are sentenced to imprisonment for nine years, to date from 6 December 1998, with a non-parole period of five years. For the manslaughter of Mehmet Unsal you are sentenced to imprisonment for nine years, to date from 6 December 1999, also with a non-parole period of five years. You will be eligible for release on parole on 6 December 2004.

66     Russell Oldham, for the manslaughter of Orhan Yildirim you are sentenced to imprisonment for nine years, to date from 14 November 1998, with a non-parole period of five years. For the manslaughter of Mehmet Unsal you are sentenced to imprisonment for nine years, to date from 14 November 1999, also with a non-parole period of five years. You will be eligible for release on parole on 14 November 2004.

67     Satuala Nanai, for the manslaughter of Orhan Yildirim you are sentenced to imprisonment for seven and a half years, to date from 13 September 2000, with a non-parole period of four years. For the manslaughter of Mehmet Unsal you are sentenced to imprisonment for seven and a half years, to date from 13 September 2001, also with a non-parole period of four years. You will be eligible for release on parole on 13 September 2005.

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Last Modified: 08/27/2001