R v Missingham [2024] NSWDC 512

District Court New South Wales

Medium Neutral Citation: R v Missingham [2024] NSWDC 512 Hearing dates: 18 October 2024 Date of orders: 31 October 2024 Decision date: 31 October 2024 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Full-time custodial order. See [68]-[70] Catchwords: Robbery in company; application of guideline judgment Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 Foaiaulima v R (2020) 285 A Crim R 222; [2020] NSWCCA 270 Hiron v R [2018] NSWCCA 10 KT v R (2008) 2008 A Crim R 112; [2008] NSWCCA 51 Legge v R [2007] NSWCCA 244 Lowe v the Queen (1984) 154 CLR 606; [1984] HCA 46 Marshall v R [2024] NSWCCA 194 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 Category: Sentence Parties: Luke Missingham (the offender) Director of Public Prosecutions (NSW) (the Crown) Representation: Counsel: Ms M Cusack (the offender) Mr G Kidd (the Crown)

Solicitors: Mr G Gallagher (the offender) Ms O'Bryan (the Crown) File Number(s): 2022/326188 Publication restriction: Nil.

REMARKS ON SENTENCE 1. On 4 July 2024 the offender pleaded not guilty to Count 3 on an Indictment as follows:- "(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." 1. On 17 July 2024 the jury delivered a verdict of guilty. Count 3 is an offence pursuant to s97(1) of the Crimes Act 1900 ("the CA") and carries a maximum penalty of 20 years imprisonment. There is no standard non-parole period prescribed. 2. The offender is to be sentenced in accordance with the following facts derived from the jury verdict. On 11 February 2022 the offender was drinking at a hotel in Newcastle with Brock Pearson, Bailey Steele and Hayden Taylor. Pearson was a drug dealer who had been trying to contact Jesse Tarasenko about what was claimed to be a drug debt. The evidence established that Pearson and Tarasenko had entered into an arrangement in January 2022 for Tarasenko to sell cocaine on behalf of Pearson following which he was to pay Pearson for the cocaine by delivering it to an associate, RS who lived closer to Tarasenko. The evidence established that Tarasenko was avoiding Pearson and not responding to his phone calls and text messages. 3. On the same night RS was attending a meeting of the Nomads OMCG in Sydney as a prospective member. He had told another member about the alleged drug debt and was instructed by the Sergeant-at-Arms to travel to Terrigal with two other prospective members, Ethan Gualdi and Darius Bagang, to mete out severe punishment to Tarasenko. The three men then travelled from Sydney to Terrigal at the same time that the offender was travelling in Pearson's car with the two other men from Newcastle to Terrigal. 4. The evidence established that when RS arrived in Terrigal, Tarasenko was identified walking home and he was detained by RS, Gualdi and Bagang. They then met the vehicle in which the offender was travelling as a passenger and together the two vehicles travelled to Crackneck Lookout in Bateau Bay where Tarasenko was assaulted. 5. The offender was not involved in what occurred at Crackneck Lookout. The evidence established however that at some point the phone of Tarasenko was used to contact Brandon Alamango, the victim in Count 3 to arrange for the purchase by Tarasenko from Alamango a quantity of cocaine as a pretence. The vehicle driven by RS in which Gualdi and Bagang were passengers was to travel to North Gosford to meet Alamango and the offender and Bailey Steele got into that vehicle to travel with the three other men to North Gosford. When the vehicle arrived there, the evidence established that Bagang and another co-offender got out of the vehicle and Alamango was asked to come from his unit down to the vehicle which was parked in an adjacent street to conduct the transaction. Alamango did that but when he got into the backseat of the vehicle next to the offender the two co-offenders got back into the vehicle and the victim was assaulted, including by the offender by punching him in the head and face. He was further assaulted by others in the vehicle and the cocaine was taken from him. 6. What followed was in issue in respect of the trial of the co-offender, Bailey Steele, namely, which two occupants of the vehicle then escorted Alamango to his home and robbed him of cash and a watch. This issue did not affect the offender who remained in the car. The jury verdict is consistent with the offender being part of a joint criminal enterprise to rob the victim of his property. When the two co-offenders who committed that robbery returned to the car, the vehicle returned first to Crackneck Lookout and subsequently to a location on the waterfront outside Terrigal where they met the vehicle being driven by Mr Pearson. The money stolen from Alamango was divided between the offenders and the offender and Bailey Steele changed vehicles. The offender then returned with Pearson and the others to Newcastle.