R v Missingham

The sentence hearing

1. The sentence took place on 18 October 2024. The Crown sentence summary became Exhibit A. It noted the maximum penalty for the offence pursuant to s97(1) of the CA was 20 years imprisonment. It set out the sentences imposed by Judge Barrow SC on RS and Bagang, both of whom pleaded guilty to two offences, one of which was robbery in company pursuant to s97(1) of the CA and there was a matter on a Form 1 dealt with pursuant to s97(1) of the CA concerning the robbery of Tarasenko.
2. Exhibit A included the criminal antecedents of the offender which involved two traffic offences which occurred in February 2019 which were dealt with by way of a fine and a Conditional Release Order.
3. Exhibit A also included the criminal antecedents, agreed facts in respect of the co-offenders Steele, RS, Bagang, Pearson and Gualdi together with the Remarks on Sentence of Judge Barrow SC when sentencing Bagang on 24 May 2024 and RS on 31 May 2024. That material is relevant to the application of the principle of parity which is referred to below.
4. Exhibit B was a Sentencing Assessment Report ("SAR") under the hand of Ms E Ayscough dated 11 October 2024. The author noted that the offender is currently employed as an interstate truck driver. The offender denied being directly involved in the offence however admitted to being present during the robbery. Under the heading "Insight into impact of offending" the offender acknowledged that the victim would have been "scared" and "looking over his shoulder". The author noted the offender expressed a willingness to engage in ongoing intervention and he was assessed as a low risk of re-offending and as unsuitable to undertake community service work as he plans to reside in Queensland. He is currently residing in NSW.
5. Exhibit C was a summary of facts on sentence agreed by the parties as facts to be derived jury verdicts. That document is Annexed hereto and marked "A". The facts therein are consistent with my summary of the facts to be derived from the jury verdict as set out above.

The offender's evidence

1. The offender tendered a bundle which comprised a report of Ms S Campbell, Clinical Psychologist dated 29 September 2024. Ms Campbell interviewed the offender on 27 September 2024 for a period of 2½ hours. Ms Campbell took a personal history in which the offender outlined a dysfunctional relationship with his mother. His parents divorced towards the end of his primary school education following which his mother re-partnered to a man the offender referred to as "psychopathic". The offender reported a more secure relationship with his father and a good relationship with the woman who became his stepmother.
2. The offender left school at 16 years of age and began a plastering apprenticeship which he continued until he was 20. He described his behaviour as "really off the rails" largely due to a controlling boss which led him to rebel, and to engage in significant drug and alcohol abuse. He quit his apprenticeship and sought work elsewhere, associating with individuals involved in criminal activity which led to him becoming an habitual drug user and to selling drugs himself.
3. Ms Campbell took a history that the offender first experimented with cannabis in Year 8. After leaving school he was exposed to ecstasy, cocaine and amphetamines, eventually developing an addiction to stimulants.
4. Since 2022 the offender had led a structured and disciplined lifestyle in which he abstained from stimulants. He has now been in a committed relationship with his current partner for over 2 years.
5. The offender also disclosed that following the index offending he was robbed and severely assaulted by a co-accused for reasons unknown. This made him realise the dangerous nature of his associations, prompting him to move to Queensland for a time. He experienced symptoms consistent with Post-Traumatic Stress Disorder including paranoia, hypervigilance, poor sleep and heightened reactivity however the symptoms were now in remission. Following psychological assessment Ms Campbell opined that it was likely the offender met the criteria for Post-Traumatic Stress Disorder (PSTD), at various points in his life. He had described recurrent episodes of hypervigilance, feeling constantly on edge and experiencing overwhelming anxiety as well as anger and irritability which had significantly impacted upon his functioning. Ms Campbell opined that it was unclear whether he was experiencing PTSD at the time of the offending. At that time he met the criteria for a Stimulant Use Disorder which was currently in remission.
6. Ms Campbell opined that the offender presents with a low to moderate risk of future violence. She opined that his risk was mitigated by significant personal support in a structured and stable environment.
7. Exhibit 1 also included testimonials from Mr D Brown who had employed the offender for approximately 2 years and described him as "diligent and trustful". The offender's partner Mikayla Ivic also provided a testimonial. She stated that she had only seen the offender act with integrity, kindness and respect for everyone around him. She described him as a person of high integrity and moral character and a caring and supportive partner. She stated that the charge before the Court was entirely uncharacteristic of the offender.
8. A further testimonial was provided by Ms A Missingham, the offender's stepmother who described a close relationship with the offender from the time he was 11 years of age. She stated that the offence was out of character for the offender who was a good person. She described him as having "a genuine heart of gold", of being respectful and a kind and caring individual. She also described the offender as empathetic towards the victim.

The Crown submissions

1. The Crown relied on a thorough and detailed written outline of submissions in which it set out the maximum penalty for the offence of robbery in company pursuant to s97(1) of the CA as 20 years imprisonment. The Crown set out well established principles concerning the fact finding exercise following a jury verdict including that findings of fact made against an offender by a sentencing Judge must be arrived at beyond reasonable doubt, and there is no general requirement that a sentencing Judge must sentence an offender on the basis of a view of the facts, consistent with the verdict, which is most favourable to the offender.
2. The Crown referred to evidence of both RS and Alamango to submit that it was established that the offender punched Alamango a number of times inside the vehicle.
3. The Crown submitted that the guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 applied here. The Crown referred to the finding of Judge Barrow SC in the sentencing of Bagang and RS, that the offence was more serious than that contemplated in R v Henry. The Crown also referred to the finding that the offending had a "gangland quality" about it which increased the objective seriousness. The Crown also referred to the judgment in which the sentencing Judge found that the latter part of the offence was committed in the home of the victim Alamango.
4. The Crown also referred to the Court's finding that the offence had an "unprincipled and mercenary" quality to it.
5. The Crown submitted that the offender was party to a joint criminal enterprise and so is liable for the actions of others, even if he himself played no direct role. However the Crown submitted that the offender was directly involved in the assault of Alamango, and the Court would find that in the hierarchy of offenders the offender was comfortably around the middle.
6. The Crown submitted that general deterrence would have a role to play in sentencing, noting the vigilante aspect of the offending. The Crown further submitted that specific deterrence would play a lesser role in respect of this offender but notes that it is still a factor that warrants consideration.
7. The Crown submitted that the following factors which would otherwise aggravate the offence had already been addressed in consideration of the objective gravity of the offending. These matters included:- 1. Actual/threat of violence 2. Actual/threaten use of a weapon 3. Offence committed in company
8. The Crown submitted that the further aggravating factor was that the offence occurred, towards its end, in the home of the victim.
9. The Crown referred to the following mitigating factors. First in sentencing RS and Bagang, Barrow SC DCJ had made a finding there was "limited organisation, some limited coordination" in respect of both offences. The Crown submitted that the Court would make a similar finding in respect of this offender.
10. The Crown noted the opinion of Ms Campbell that the offender is a low to moderate risk of reoffending, however that his recidivism was linked to his abstinence from substance abuse.
11. The Crown submitted that the offender's upbringing did not operate to reduce his moral culpability for the offending conduct. Further, it was unclear whether the offender was experiencing PTSD at the time of the offence.
12. The Crown submitted that the only penalty that could be imposed was one of full-time imprisonment.
13. Finally the Crown accepted that a finding of special circumstances was appropriate in this case. In his oral submissions, in response to a written submission from the offender that he should be sentenced pursuant to an Intensive Correction Order, the Crown submitted that such an ICO was not within the appropriate range for this offending. The Crown accepted that the offender had very limited antecedents relating to traffic offences only, however this was a serious robbery with a "gangland" quality to it. Having regard to the offender's specific role, the Crown submitted that the Court would find the accused had a direct role which involved meting out physical violence. The Crown noted a submission made on behalf of the offender that the offender's mere presence was not enough to constitute the offence pursuant to s97(1) of the CA.
14. The Crown submitted that this matter was clearly within the R v Henry guideline judgment. This meant a range between four and five years imprisonment, if each of the seven common factors are satisfied which include a discount for a late plea of guilty.
15. The Crown noted that the starting point for sentencing RS for this offence was 5 years and submitted that to impose a term of imprisonment of less than 2 years would cause his co-offenders to have a justifiable sense of grievance.

The offender's submissions

1. Counsel for the offender also relied on a detailed written outline of submissions. In relation to the facts, counsel submitted that it was only after the offender got into the vehicle driven by RS, or shortly before Alamango got into that car that he would have been aware that what was involved was a "drug rip off". Counsel submitted, "he understood that he would make himself available to assist if needs be. There was no evidence of any discussions in the car about what was to happen."
2. It was further submitted that the Court would not find that the offender struck the victim at all, however if he did, it was not as described by RS given the testimony of Alamango. He described being assaulted only when the two men got into the car and demonstrated that he was in a position with his back jammed in the corner behind the driver's seat presumably with the offender behind him. This accorded with RS' statement to police. It was therefore submitted the offender's role in the robbery was to be available and ready to give assistance.
3. Counsel submitted that the Court would find that the offender appreciated "that other property may be demanded off the victim but not that a weapon would be used or that others would go to his unit". It was submitted that the Court would find that the offender entered the agreement to rob the victim very shortly before the victim got in the car. It was further submitted that the defendant had no knowledge that any knife would be used in the robbery.
4. Counsel set out the guideline promulgated by Spigelman CJ in R v Henry at [162] and noted that in Legge v R [2007] NSWCCA 244 at [59] Spigelman CJ stated, "that a guideline is not a tramline". Counsel referred to the judgment of Johnson J in Foaiaulima v R (2020) 285 A Crim R 222; [2020] NSWCCA 270 in which his Honour noted that at that time 21 years had passed since R v Henry was decided and there had been no application for a revised guideline judgment for s97(1) offences. His Honour noted that there were a range of statutory and common law principles which have developed since the guideline judgment was issued in 1999, and that the guideline judgment constitutes a statutory matter to be taken into account on sentence by operation of s42A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSPA").
5. Counsel referred to the principle of parity referred to in Lowe v the Queen (1984) 154 CLR 606; [1984] HCA 46 and submitted that differences in age, background, criminal history, character and the role they played in the commission of an offence may result in different sentences for offenders involved in the same robbery (at [609]). Counsel also referred to Hiron v R [2018] NSWCCA 10 to submit that the parity principle may not be applied if there are significant differences in co-offenders involved in a joint criminal enterprise having regard to their objective roles and subjective circumstances. Counsel relied on the following differences relating to the offenders here:- 1. The co-offenders were sentenced by way of aggregate sentences, in respect of two offences with another s97(1) offence to be taken into account on a Form 1 in respect of Bagang and RS. 2. The offender is a person of good character with no relevant criminal history. 3. RS and Bagang had criminal records. 4. RS had recently been placed on an ICO at the time of the offending. 5. Bagang had priors for armed robbery and robbery in company. 6. In addition both Bagang and RS were being sentenced for the earlier incident therefore principles of totality applied in relation to their aggregate sentence. 7. Bagang was instrumental in the robbery in that it was he who was texting the victim and according to Alamango it was he who went with Gualdi to the unit. 8. RS was also involved in the planning of the robbery and drove the car with full knowledge of what was to happen including directing two passengers in the backseat to get out so they wouldn't look too suspicious.
6. Counsel submitted that the testimonials established that the offender was a person of good character and that he had good prospects of rehabilitation. He had also expressed remorse for his offending.
7. It was submitted that the offender was 22 years of age at the time of the offending. Counsel submitted that the offender's involvement had all the hallmarks of an impulsive rash decision "often made by younger people without thinking of the consequences". She referred to the judgment of Hodgson JA in BP v R (2010) 201 A Crim R 372; [2010] NSWCCA 159 at [5] where his Honour noted that "emotional maturity and impulse control may not be fully developed until the early to mid-20s". On the basis of his youth, counsel submitted that rehabilitation should have a greater role to play than retribution and denunciation.
8. Counsel conceded that the characteristics of an offender as outlined in the R v Henry guideline judgment fitted the profile of the offender and that there was no plea of guilty and actual violence were used. However, there were other factors, namely his personal subjective characteristics and role in the robbery which must be taken into account. Further the victim was not a vulnerable person, in fact he was a drug dealer.
9. Counsel noted the family history set out in Exhibit 1 and submitted that a full-time custodial sentence would have an adverse impact upon this offender's prospects of rehabilitation. He had expressed fear over meeting up with his co-offenders or other affiliated gang members in a custodial setting who may bear a grudge against him. In fact following the offence this offender had been threatened by RS who demanded he pay him $14,000 causing the offender to take out a loan to raise the money. Shortly after that he left NSW for Queensland and has remained drug free ever since and in continuous employment.
10. Counsel referred to the opinions expressed by Ms Campbell including her identification of two clinical risk factors, namely lack of insight and unresponsiveness to treatment. Counsel relied on her following opinion:- "He does not present with any of the five future risk management factors at the time of the assessment: He has feasible plans for the future, he is not exposed to de-stabilising influences and benefits from significant personal support."
11. Ms Campbell also noted that his motivation for treatment was low because of the rehabilitation he had achieved over the past two years. During that time he had not come to the attention of police and had complied with his bail conditions.
12. Counsel submitted that the offender had a minimal role to play in the planning and execution of this robbery and that his good character and demonstrated rehabilitation whilst on bail should play a significant role in determining the appropriate sentence.
13. Counsel then went on to submit that if a sentence of 2 years or less is imposed then the Court should consider a penalty to be served by way of Intensive Correction Order, submitting that incarceration may adversely impact the offender's rehabilitation.
14. Finally it was submitted that in the event of a custodial order a finding of special circumstances should be made pursuant to s44 of the CSPA on the basis that this was the offender's first time in custody. Counsel also referred to JIRS statistics which showed that whilst the majority of offenders pursuant to s97(1) were sentenced to terms of imprisonment, almost 30% thereof were sentenced by way of ICO.
15. In her oral submissions counsel rehearsed her submissions concerning parity with the sentences imposed on RS and Bagang. In respect of the offender's role, it was submitted that whilst he was in the vehicle, it must have been very difficult for this offender to inflict any blow on Alamango, and it would have been impossible for RS to see any such assault. Thus the offender should be sentenced on the basis that he was there and ready, willing and able to assist but was only aware of what was going on for a very short duration.
16. Counsel differentiated the role of RS and Bagang in the overall offending and referred to their criminal histories whereas this offender was a young man of good character who had significant subjective factors in his favour including full-time employment and a stable relationship.
17. Counsel rehearsed her submissions in relation to the application of the guideline judgment having regard to s42A of the CSPA and her submissions regarding the fact that at the time of the offence this offender was 22 years of age and in accordance with Hodgson JA's judgment in BP v R, his executive functioning was not fully developed.
18. Counsel rehearsed her submissions relating to the advances this offender had made in his rehabilitation and his suitability for a non-custodial sentence.

Determination

1. Section 3A of the Crimes (Sentencing Procedure) Act 1999 ("the CSPA") sets out the following purposes of sentencing:- "The purposes for which a court may impose a sentence on an offender are as follows - (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community."
2. In assessing the objective seriousness of the offending I have had regard to the guideline judgment in R v Henry and find as follows:- 1. The offender was young, being 22 years of age at the time of the offending and had no relevant criminal history. 2. As part of the joint criminal enterprise the offender was liable for the actions of others which in this case involved the use of a knife which was capable of killing or inflicting serious injury. 3. There was no planning involved in this offender's participation. He did however agree to go in the car driven by RS from Crackneck Lookout which was not the vehicle in which he had arrived at the lookout. I do not accept the submission made on his behalf that it was only shortly before Alamango got into the car at North Gosford that this offender would have been aware that it was a drug rip-off. 4. Actual violence was inflicted on the victim by this offender who punched Alamango to the head several times. 5. The victim was not vulnerable. 6. $2,000 in cash and a gold watch were stolen from the victim Alamango.
3. I note that Judge Barrow SC found in respect of the co-offenders Bagang and RS that the offence was more serious than that contemplated in R v Henry, and that it had a gangland quality about it which increased the objective seriousness of the offending. His Honour also found that the robbery offence had a "unprincipled and mercenary" quality to it which ought to be condemned. I adopted those findings in my Remarks on Sentence in respect of the co-offender Steele, however with respect to this offender I accept that his role in the joint-criminal enterprise was that of a follower, who went along with the others and was ready, willing and able to assist them. He did so by punching the victim, inflicting blows to his face and head. Given his role, the objective seriousness of this offender's criminal conduct fell just below the mid-range for an offence pursuant to s97(1) of the CA. It still constituted serious criminal conduct.
4. An aggravating factor for this offence is that it occurred partly in the home of the victim.
5. I further find that the moral culpability of the offender in respect of this offence was high in that he was involved in the assault on the victim Alamango and, given what occurred earlier in the night, must have known that there was a knife capable of being used in the offence. As a follower however he was not in any way directing the criminal enterprise.
6. General deterrence is important in sentencing for offences pursuant to s97(1) of the CA, in accordance with the guideline judgment in Henry. Parliament has prescribed a maximum penalty of 20 years imprisonment which indicates the seriousness of the offending and also provides a guidepost in the sentencing process. The guideline of 4 to 5 years imprisonment for a case meeting the criteria set out in Henry sends a clear message to like-minded members of the community that the Courts will impose condign punishment for such offending.
7. Specific deterrence is also important in that this offender must understand the serious nature of the offence and the serious consequences if he were to re-offend.
8. There are significant subjective factors to be taken into account in sentencing this offender. He is a young man of good character with no relevant criminal history despite his history of drug abuse. His relative youth at the time of the offending namely, 22 years of age must be taken into account in accordance with authority such as KT v R (2008) 2008 A Crim R 112; [2008] NSWCCA 51 and BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 where Hodgson JA at [5] stated that "emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be fully developed until the early to mid-20s".
9. The offender has shown maturity in removing himself from the jurisdiction and advancing his rehabilitation. The assault and extortion of money by a co-offender after this offending was relied on by his counsel as extra-curial punishment, however the circumstances surrounding that remain opaque. He is now in full-time employment and has been abstinent from prohibited drugs since his arrest. I accept that he now has a structured lifestyle and is in a committed relationship with his current partner. I accept the opinion of Ms Campbell that at times in his life he has met the criteria for PTSD but there is no causal nexus between that condition and the index offending. I also accept her opinion that he met the criteria for a Stimulant Use Disorder which is currently in remission.
10. Whilst the offender has made significant progress with his rehabilitation any prognosis must be qualified by the risk of relapse into drug abuse. However I accept the opinion of Ms Campbell that he presents as a low to moderate risk of future violence and recidivism. I also accept the testimonials of his partner and stepmother that the offending was entirely uncharacteristic of the offender. I further accept that he has expressed some remorse and has shown empathy towards the victim of this offence.
11. The principle of parity is a principle of equal justice. Like cases are to be treated alike with significant differences to be taken into account. Each of the co-offenders who have been sentenced to date were sentenced by way of aggregate sentences however in respect of the offence of robbery in company pursuant to s97(1) the indicative sentences imposed were as follows:-

Bagang Count 5 - 5 years imprisonment reduced by 30% to 3 years and 9 months imprisonment

RS Count 5 - Imprisonment for 5 years reduced by 60% to 2 years

Steele Count 3 - 4 years imprisonment

1. Whilst the guideline judgment in Henry is not "a tramline" as stated by Spigelman CJ in Legge v R, and 25 years have passed since the guideline was promulgated, it still must be taken into account by operation of s42A of the CSPA.
2. Acknowledging the significant differences between this offender and the co-offenders RS and Bagang and some differences with the co-offender Steele, notwithstanding the significant subjective factors to be taken into account on behalf of this offender I am satisfied that the threshold in s5 of the CSPA has been crossed and that having considered all possible alternatives no sentence other than a term of imprisonment is appropriate. The principle of proportionality requires the sentence to be commensurate with the objective seriousness of the offence - see Marshall v R [2024] NSWCCA 194 at [30]. This means in effect that the punishment must fit the crime. Having regard to the objective seriousness of the offending which cannot be outweighed by the subjective features in the sentencing synthesis, I find that an appropriate sentence is a term of 3 years and 6 months imprisonment.
3. I make a finding of special circumstances pursuant to s44 of the CSPA and intend to vary the statutory ratio between head sentence and non-parole period and impose a non-parole period of 1 year and 9 months imprisonment to commence today.

Orders

1. You are convicted of the offence in Count 3 on the Indictment:- "(3) On or about 12 February 2022, at North Gosford in the State of New South Wales, while in the company of Brock Pearson, "RS", Darius Bagang, Ethan Gualdi and each other, robbed Brandon Alamango of cash and a gold watch, the property of Brandon Alamango."
2. You are sentenced to a non-parole period of 1 year and 9 months imprisonment to commence today and to expire on 30 July 2026.
3. The balance of term will be a period of 1 year and 9 months which will terminate on 30 April 2028.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 October 2024