R v Steele

Case •

[2024] NSWDC 511

•

31 October 2024

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Steele [2024] NSWDC 511
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 sentence. For orders see [101]-[104]

Catchwords:

Specially aggravated kidnapping; robbery in company; aggregate sentence; application of the Bugmy principle

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Cahyadi v R 168 A Crim R 41; [2007] NSWCCA 1

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

KT v R (2008) 2008 A Crim R 112; [2008] NSWCCA 51

R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186

R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111

R v Newell [2004] NSWCCA 183

Category:Sentence
Parties: Bailey Steele (the offender)
Director of Public Prosecutions (NSW) (the Crown)
Representation:

Counsel:
Mr G Kidd (the Crown)

Solicitors:
Mr C O’Brien (the offender)
Ms V O’Bryan (the Crown)
File Number(s): 2022/00213630
Publication restriction: Nil.

REMARKS ON SENTENCE

  1. On 4 July 2024 the offender was arraigned on an Indictment containing three Counts. Following a trial by jury the offender was found guilty of Counts 1 and 3 on the Indictment as follows:-

Count 1    On or about 12 February 2022, at Terrigal and elsewhere in the State of New South Wales, while in the company of Brock Pearson, “RS”, Ethan Gualdi and Darius Bagang, detained Jesse Tarasenko without his consent, and with the intention of committing a serious indictable offence, namely intimidation, and at the time actual bodily harm was occasioned to Jesse Tarasenko.

Count 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. Count 1 is an offence pursuant to s86(3) of the Crimes Act 1900 and the maximum penalty prescribed is imprisonment for 25 years. Count 3 is an offence pursuant to s97(1) of the Crimes Act 1900 and the maximum penalty is imprisonment for 20 years. There is no standard non-parole period prescribed for either offence.

The sentence hearing

  1. The sentence hearing took place on 18 October 2024. The Crown bundle became Exhibit A. It set out the maximum penalties for both offences and the time the offender had spent in custody, namely 3 months and 3 days up until 18 October 2024. It also set out that the offence occurred when the offender was subject to an ICO imposed on 3 September 2020 for 21 months expiring on 2 June 2022 for an offence of supply prohibited drugs.

  2. Exhibit A.2 was the offender’s criminal history which included offences of stalk/intimidate with intend fear of physical etc harm (Domestic) and destroy or damage property (DV) for which concurrent Community Correction Orders were imposed on 16 July 2019, and a previous supply prohibited drug offence for which an Intensive Correction Order for 12 months was imposed on 27 May 2019. That order was revoked by the Parole Authority and the offender served the balance of term of 9 months, 3 weeks and 4 days following the subsequent supply offence for which an Intensive Correction Order was also imposed commencing on 3 September 2020 and which the offender was subject to at the time of the index offending.

  3. Exhibit B was a document provided by the Crown titled “Summary of facts on sentence” which was agreed to by the offender. That document is annexed to these remarks as Annexure A.

  4. The offender is to be sentenced on the following facts which I find to be derived from the jury verdicts. The victim in Count 1, Jesse Tarasenko, had known Brock Pearson for approximately 4 to 5 years and knew he was affiliated with the Banditos OMCG. In the weeks leading up to 12 February 2022 Tarasenko had a number of conversations with Pearson in which Pearson claimed Tarasenko owed him money arising from an agreement between them by which Tarasenko was to sell cocaine on behalf of Pearson, and when it was sold, pay Pearson for the drugs. The payment was to be paid to an associate of Pearson, RS, who lived closer to Tarasenko than Pearson.

  5. “RS” was a prospective member of the Nomads OMCG. He was aware of the drug debt claimed by Pearson and on 11 February 2022 was attending a meeting of the Sydney chapter of the Nomads when he told another member about the debt owing to Pearson. During the meeting RS was instructed by the Sergeant-at-Arms of the Nomads to travel from Sydney to Terrigal with two other prospective members of the Nomads, namely Ethan Gualdi and Darius Bagang for the purpose of locating Tarasenko and meting out severe punishment to him for failing to pay the money to Pearson.

  6. On the same night Pearson was at a hotel in Newcastle with the offender, Luke Missingham and Hayden Taylor. They had a number of drinks and left the hotel together to travel to Terrigal to find Tarasenko, who Pearson had been informed was at a licensed establishment.

  7. When the four men arrived in Terrigal they split up and went to attend separate licensed premises. They were refused entry.

  8. When RS left Sydney with Gualdi and Bagang, they called into Gualdi’s home where he collected a kitchen knife. When they left RS drove the vehicle and when they arrived in Terrigal in the early hours of 12 February 2022 they observed Tarasenko walking along the road.

  9. RS was driving a black Holden Rodeo utility and he performed a U-turn and stopped on the side of the road. What occurred next was witnessed by an independent witness and agreed facts at trial recorded that the witness saw a number of males jump out of the ute and pull another male into the backseat of the vehicle. After he was placed in the car Tarasenko was driven a short distance during which he was assaulted by all three of the males, including having a knife held against his cheek by Gualdi while Bagang accessed Tarasenko’s bank details on his mobile phone. When the vehicle driven by Pearson arrived, he too assaulted the victim.

  10. The two vehicles travelled to Crackneck Lookout where Tarasenko was removed from the vehicle and dragged to a picnic table where he was assaulted, and his clothing was removed. During the assault, the knife brought by Gualdi was presented and Tarasenko sustained wounds to his ear and also to his hand, when he attempted to protect himself. Those wounds are not referable to this offender. The jury verdict in respect of Count 1 is consistent with the offender being found guilty as part of a joint criminal enterprise to detain Tarasenko without his consent and with the intention of committing a serious indictable offence, namely, intimidation.

  11. Whilst at the lookout Tarasenko’s phone was taken and he was asked to unlock it. Messages were sent on his phone to Brandon Alamango with whom he had met at a hotel in Terrigal earlier that evening. Alamango was identified as a source to obtain cocaine from. Messages were exchanged on Tarasenko’s phone with Alamango in which an agreement was reached that Alamango would supply prohibited drugs, namely cocaine, as a pretence. Alamango lived at North Gosford and in the early hours of 12 February RS left Crackneck Lookout in the Holden Rodeo ute with Bagang, Gualdi, the offender and Luke Missingham to drive to an address in North Gosford.

  12. When they arrived at that address the vehicle was parked nearby, and RS told Gualdi and a co-offender to jump out of the backseat of the car. The Crown case is that Steele was that co-offender. The victim Alamango was then asked to come down to the car and he entered the backseat whereupon Gualdi and the co-offender got back into the car and Alamango was assaulted. During that assault by numerous persons, Alamango was threatened with the knife Gualdi had brought. He was told that he had been set up by Tarasenko and handed over a quantity of cocaine. During the assault one of the offenders said to him, “We have cut your mates ear off” and “Have you ever been raped by a stick?” or words to that effect.

  13. Gualdi and another person from the car then took Alamango to his home where cash and a watch were stolen. The offender disputes that he went with Gualdi. By the jury verdict, the offender was found guilty as part of a joint criminal enterprise to rob the victim of the cash and gold watch.

  14. By its verdicts, the jury rejected his defence in relation to Count 1, that he was not in the car driven by RS when Tarasenko was detained and was not part of a joint criminal enterprise to kidnap him. In respect of Count 3, the jury rejected his defence that the offender’s mere presence in the car was not enough for the Crown to establish the common purpose of robbing Alamango but rather the offender was told they were going to see Alamango to buy drugs, and the two people who committed that crime were Gualdi and Bagang.

  15. Exhibit A also included the offender’s Custody Management Record and the agreed facts for the supply offence for which he was subject to an ICO at the time of the index offending.

  16. Exhibit A also included material relevant to the co-offenders Missingham, Bagang, Pearson and Gualdi. That material included agreed facts and criminal histories in relation to each co-offender together with the Remarks on Sentence of Judge Barrow SC relating to Bagang delivered on 24 May 2024 and the Remarks on Sentence relating to RS delivered 31 May 2024. All of that material is relevant to the application of the principle of parity in sentencing which is referred to below.

The offender’s evidence

  1. The offender tendered a bundle of evidence which became Exhibit 1. It included a report by Dr D.G Gilligan, Clinical and Forensic Psychologist dated 14 October 2024. Dr Gilligan had interviewed and assessed the offender via AVL for 3 hours on 8 October 2024 and for 1½ hours on 11 October 2024. Dr Gilligan noted that the offender had accepted the jury findings against him and acknowledged his guilt. He took a history that in the weeks prior to the offending the offender had experienced multiple psychosocial stressors including the loss of his licence, employment and a breakdown of his relationship. He had been using various substances including MDMA, cocaine and alcohol in the hours prior to the offences taking place.

  2. The offender had contended that he did not know what he was getting into but felt fearful of the unknown co-offenders which prompted him to accept their instructions.

  3. Dr Gilligan noted that the offender was remorseful for his offending behaviour stating that he felt, “110% sorry for the victims”. He took a history that since the offending he had made efforts to rehabilitate himself, maintaining abstinence from illicit substances and distancing himself from negative peers. His previous criminal history had occurred in the context of a background of complex family dynamics, negative peer associations and ongoing substance abuse and relationship turbulence.

  4. Dr Gilligan took a family history, describing an upbringing during which there was “a lot of hostility”. His father was an alcoholic who was physically violent towards his mother. The offender reported that he suffered the brunt of hostility abuse from his parents which included physical abuse by his father and manipulative abuse by his mother. His father had mental health issues and he was evicted from the home when he was 16 when he went to live with a friend and the friend’s mother. The offender was homeless from the age of 17 and lapsed into substance abuse.

  5. The offender reported being diagnosed with ADHD at age 12 but was not medicated. He suffered a head injury after a bicycle accident when he was approximately 10 to 11 years of age. He had completed 2½ years of an apprenticeship but was unable to maintain employment due to his substance abuse. He had nevertheless maintained a positive work ethic, working variously in landscaping, factory work and concreting. Since the index offending, he had obtained an excavation operator’s ticket and had maintained employment. He had also since the index offending obtained his own accommodation and was in a new relationship, and his partner was supportive of him.

  6. At 24 years of age the offender was diagnosed with a heart condition marked by symptoms of inflammation. He had been treated by his GP and required annual follow-up for review. He expressed anxiety about being able to undertake such routine assessments in the event of being given an extended term of imprisonment.

  7. Dr Gilligan took a history of the offender’s substance abuse. He commenced drinking alcohol at 15 and from age 17 was binge drinking as well as using MDMA together with prescription substances including Valium, Endone, and Xanax. From 18 he was using methylamphetamine and he had continued to use various substances when he was sent to jail for the first time and did not participate in any drug and alcohol programs because they were not available to him.

  8. Whilst on bail following the index offending the offender had managed to get his substance use under control and maintained abstinence from illicit substances since.

  9. Dr Gilligan took a mental health history which included a suicide attempt at age 19. The offender had continued to experience bouts of low mood, accompanied by feelings of helplessness and hopelessness. He also suffered anxiety, occasions of panic and occasional nightmares. Dr Gilligan opined that the offender’s psychological development appeared to have been disrupted by his childhood traumas and exacerbated by his negative lifestyle trajectory based on those traumas.

  10. Following clinical assessment Dr Gilligan opined that the offender’s diagnosis aligns most closely with a provisional diagnosis of mild dysthymia with anxious distress. Whilst he did not fulfil the criteria for a personality disorder there was a provisional diagnosis of “mixed-personality features”. The offender had shown marked improvement over the past 2 ½ years with the support of his partner however he met the criteria for polysubstance use disorder, currently in remission.

  11. Dr Gilligan opined that the offender’s offending behaviour stemmed from a combination of psychological distress and negative peer influences. His association with negative peers and substance abuse formed the context of his criminal behaviour and impulsivity. Notwithstanding that, since the index offending the offender had successfully initiated a path towards stability characterised by abstinence from illicit substances, consistent employment, stable accommodation and a supportive relationship. Dr Gilligan recommended ongoing psychological treatment aimed at enhancing his understanding of intra-psychic vulnerabilities and processing childhood traumas and opined that an extended period of incarceration may ultimately jeopardise the gains the offender had achieved to date. He opined that the offender remains vulnerable to relapse, “particularly in the event of a breakdown in social support systems, in the face of future crisis”.

  12. Exhibit 1 also included references from Mr B March, Ms A Lewis, Ms S Storr (the offender’s older sister), Ms K Khattar, Mr J Spradley, Ms J Cannon and Ms J Storr. The references attest to the offender’s difficult upbringing, his strong work ethic and the advances he has made in rehabilitating himself since the index offending.

The offender’s oral evidence

  1. The offender gave evidence that he had told Dr Gilligan the truth about his family history and background. In relation to the summary of agreed facts, Annexure A, he denied that portion of [23] that alleged that it was he who got out of the vehicle with Gualdi at North Gosford. He gave evidence that he did not get out of the vehicle and that he remained in it.

  2. The offender gave evidence that he had been hospitalised following the bicycle accident in which he had suffered a head injury. He had also been hospitalised following two suicide attempts and was now determined to address his mental health concerns. Whilst he was on bail he had maintained employment, abstained from illicit substances and now felt he had no need to use them.

  3. In cross-examination the offender confirmed he had been sentenced for drug supply in 2019 by way of an Intensive Correction Order (“ICO”), a condition of which was to abstain from drugs and alcohol. That order had been revoked upon his subsequent offending and he spent 9 months in prison. During that time he had not done anything to rehabilitate himself.

  4. On the 3rd of September 2020 he had been sentenced in respect of a second drug supply offence to an ICO. At that time he had told the Court he was motivated to address his drug and alcohol abuse. That ICO was due to expire on the 2nd of June 2022 and the index offending occurred on the 12th of February 2022 at a time when he was using cocaine.

  5. The offender contended that he had completed the community service condition of the ICO, that he had never been contacted by Parole and no breach action had been taken against him. However he accepted that he was subject to the ICO at the time of the offending, and he had relapsed into drug abuse. He had not however sought treatment or attended narcotics anonymous, alcoholics anonymous or sought assistance for his mental health issues. The offender gave evidence that he did not want to accept his need for rehabilitation at the time, he was homeless, and his life was not stable. He had however since knuckled down and got his life sorted however he had done that himself, and had not sought treatment nor had he had the benefit of any residential rehabilitation or counselling. By the time of his arrest the ICO had expired.

  6. The offender gave evidence that he now acknowledged that he needed help. It was put to him that the Court would not have much confidence in him rehabilitating himself with which he disagreed. He did so on the basis that he now had the support of his partner and was reconnecting with his family and was very much on the right path. Since being in custody he had not raised his mental health issues with Justice Health, stating that he was coping to the best of his ability however he did want to obtain treatment concerning his childhood and mental health issues. When asked what had changed now, the offender stated that it was the people that he had around him and that he now saw a future with his partner and family.

  7. In relation to [23] of the agreed facts the offender gave evidence that it was just Gualdi who had got out of the vehicle and got back in, and that evidence given to the contrary by Alamango and RS was wrong. Further the offender gave evidence that it was Gualdi and Bagang who went to the home of Alamango and denied the suggestion that it was he who went to those premises. He denied that he was trying to minimise his role and accepted that he had used cocaine at Crackneck Lookout as well as consuming MDMA and alcohol including spirits. Notwithstanding the consumption of drugs and alcohol the offender still had a clear recollection of what occurred.

  8. In re-examination the offender stated that he did not receive any of the proceeds of the robbery of Alamango.

The Crown submissions on sentence

  1. The Crown relied on a thorough and detailed written outline of submissions in which it identified the maximum penalties applicable to Counts 1 and 3. The Crown also set out well established principles of sentencing in relation to the fact-finding exercise following trial by jury. It is well established that any findings of fact made against the offender 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 the view of the facts, consistent with a verdict, which is most favourable to the offender.

  1. The Crown set out in its submissions the facts to be derived from the jury verdict in respect of Count 1 on the Indictment. Those facts are reflected in my findings above and include that the offender was involved in the removal of Tarasenko’s clothing and the subsequent assault on him, including being punched and kicked by the offender whilst Tarasenko was on the picnic bench.

  2. In respect of Count 3 the Crown submitted that at a minimum, the Court would find that the offender assaulted Alamango, consistent with the evidence of both Alamango and RS.

  3. In assessing the objective seriousness of the offence in Count 1, the Crown relied on R v Newell [2004] NSWCCA 183 at [32] to identify the following 4 factors which are relevant to the assessment:-

  1. The period of the detention;

  2. The circumstances of the detention;

  3. The person being detained; and

  4. The purpose of the detention.

  1. The Crown referred to the Remarks on Sentence of Judge Barrow SC in sentencing Bagang where his Honour made the following findings:-

  1. The period of detention was for about two and a half hours during which time the victim was “in a state of abject terror”;

  2. The circumstances of detention involved the victim being grabbed from the street, threatened with a knife by Gualdi, punched in the head by a number of the co-offenders and also punched and kicked by this offender at the lookout. The Court found that the injuries suffered by the victim were significant and the number of persons involved in the offence increased the objective seriousness of the offending. The offence was further aggravated by the use of a knife.

  3. The purpose of the detention was punishment for failure to pay a drug debt owed by the victim.

  1. Judge Barrow SC also found that the offending fell within the mid-range of objective seriousness and the Crown submitted there was no reason to depart from such a finding. His Honour made similar findings when sentencing the co-offender RS.

  2. The Crown noted that the offender is not to be sentenced in respect of the wounds sustained to Tarasenko’s ear however the swelling and bruising suffered by the victim still demonstrated a serious example of actual bodily harm. Notwithstanding that difference the Court would still find the offence fell within the mid-range of objective seriousness for an offence pursuant to s86(3) of the Crimes Act.

  3. In assessing the objective seriousness of the offending in Count 3 the Crown submitted the Court would have regard to the guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111. The Crown made the following submission:-

R v Henry Factor

Crown Submission

Young offender with little or no criminal history

The offender meets the criteria of being young, but not with respect to having little or no criminal history

Weapon like a knife, capable of killing or inflicting serious injury

This criteria is satisfied

Limited degree of planning

This criteria is satisfied

Limited, if any, actual violence but a real threat thereof

This criteria is exceeded having regard to the fact that the victim was punched to the head and threatened with a knife

Victim in a vulnerable position such as a shopkeeper or taxi-driver

The victim was not vulnerable in the sense considered in R v Henry

Small amount taken

This criteria is exceeded - $2000 cash and jewellery taken from victim

Plea of guilty, the significance of which is limited by a strong Crown case

This criteria is not satisfied

  1. 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. Additionally the Court found that the offending had a “gangland quality” about it which increased the objective seriousness. The Court had also accepted the Crown submission in respect of the latter part of the offence being committed in the home of the victim. The Court further found that the robbery offence had an “unprincipled and mercenary” quality to it which ought to be condemned.

  2. The Crown submitted that the offender was party to a joint criminal enterprise in respect of each of the offences nevertheless it was necessary for the Court to assess the role the offender played in respect of the individual offences. The Crown submitted that the moral culpability of the offender is high in respect of both offences given that he was directly involved in the physical assault of Tarasenko in respect of Count 1 and in respect of Count 3:-

  1. The offender was either armed with a knife and made threats to Alamango and thereafter went into the house with Gualdi; or

  2. He remained in the vehicle after Alamango had been assaulted by multiple persons.

  3. Nevertheless, he must have known that there was to be a knife used, having witnessed what had transpired at the lookout earlier.

  1. In the hierarchy of offenders, the Crown submitted the offender was comfortably around the middle.

  2. The Crown submitted that general deterrence would play a role in sentencing noting the vigilante aspect of the offending in both offences. There was also a role for specific deterrence given the offender’s antecedents, particularly as he was subject to an ICO at the time of commission of the offences.

  3. The Crown noted that Judge Barrow SC in sentencing RS and Bagang had found that there was “limited organisation, some limited coordination” in respect of both offences.

  4. The Crown submitted that the Court would be guarded in finding the offender had good prospects of rehabilitation having regard to his antecedents and the fact that he was on conditional liberty at the time of the offences. The Court would also be guarded in finding that the offender was remorseful given the way in which he conducted his case at trial.

  5. The Crown accepted that the offender had a disadvantaged upbringing based on the contents of the report of Dr Gilligan and the testimonials from the offender’s sister and maternal aunt. The Crown accepted that this would reduce his moral culpability but that any reduction would be modest. Having regard to the seriousness of each offence, the antecedents of the offender and the fact that the offences would not have been committed had the offender complied with the terms of the ICO, the Crown submitted that the offender was still an appropriate vehicle for general or specific deterrence. Nor would the offender’s time in custody be any more onerous as a result of his upbringing or mental health condition.

  6. The Crown submitted that the only penalty that can be imposed is one of full-time imprisonment and set out, for the purposes in sentencing, the aggregate sentences imposed on Bagang and RS including the indicative sentences in each case. Bagang was sentenced by way of an aggregate sentence to 7 years and 6 months imprisonment with a non-parole period of 4 years and 6 months imprisonment. The indicative sentences for the same offending were sequence 1, 5 years and 11 months imprisonment, and sequence 5, 5 years and 4 months imprisonment (after a 30% total discount). RS was sentenced to an aggregate sentence of 4 years and 2 months with a non-parole period of 2 years and 6 months imprisonment. The indicative sentences for the same offences were sequence 1, 3 years and 2 months imprisonment and sequence 5, 2 years imprisonment (after a discount of 60%). The Crown set out a parity table which is referred to below.

  7. The Crown also referred to the principle of totality to submit that there must necessarily be a measure of accumulation given that the offences involved separate victims.

  8. The Crown accepted that it was open to Court to make a finding of special circumstances.

  9. In his oral submissions the Crown submitted that in applying the principle of parity in sentencing it was important to note the starting point for each of the offences as outlined by Judge Barrow SC. For the offence pursuant to s86(3) of the Crimes Act his Honour had a starting point of 8 years and 8½ years respectively. In respect of the offence of robbery in company pursuant to s97(1) of the Crimes Act the starting point was 5 years imprisonment.

  10. Given the offender’s acquittal of Count 2 on the Indictment the Crown accepts that it would necessarily follow that the starting point in respect of Count 1 would be less than that of both RS and Bagang.

  11. The Crown submitted that nothing differentiated this offender with respect to the starting point for Count 3. Further this offender had significant antecedents while each co-offender was subject to a finding of disadvantaged upbringing, for RS there was no finding of reduction of moral culpability whereas for Bagang there was a finding that his disadvantaged upbringing reduced his moral culpability. Further each offender had entered pleas of guilty and were subject to significant discounts on sentence.

  12. With respect to the offender’s subjective case, the Crown submitted that the relevant references from the offender’s employers and work friends made no reference to knowledge of the offender’s previous Intensive Correction Orders or use of illicit drugs and no specific knowledge of the offending behaviour. The Crown accepted the history provided to Dr Gilligan and that the offender had a significantly deprived background. The index offending however was the third occurrence of drug-related offending and demonstrated an escalation in the offender’s criminal behaviour.

The offender’s submissions

  1. The offender relied on thorough and detailed written submissions which noted that the offender did not give evidence at his trial and the Crown was put to proof of the offender’s involvement in the offences. The offender submitted, “The jury must have ultimately rejected the defence case insofar as the offender’s criminal mind to assist if necessary”.

  2. The solicitor for the offender noted that the jury returned a verdict of not guilty to one count of reckless wounding of Jesse Tarasenko yet found the offender guilty of the two remaining offences. In respect of Count 3 it was submitted that the jury must have concluded that the offender was not one of the principal offenders in the robbery of Brandon Alamango, but that he was in the proximity and was ready to assist if necessary. Similarly, relying on a jury note (MFI 33) it was submitted the jury must have concluded that the offender was not the principal offender in relation to Count 1 but instead was present, ready and willing to assist in the kidnapping.

  3. The offender submitted that “he must be sentenced on the offender’s state of mind namely that he was present for each of the offences and had formed an intention at some point in time to be criminally concerned”. It was further submitted that the offender’s involvement in the criminal enterprise commenced sometime after he left Newcastle on the 11th of February with his co-offenders. In those circumstances the Court could make a factual finding that the offender had little opportunity to conspire or pre-plan either the kidnapping or the subsequent robbery.

  4. The offender was 21 years of age at the time of the offending and is now 24. He identifies as a First Nations person whose disadvantaged childhood is set out in the report of Dr Gilligan. It was submitted that the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 apply so as to diminish his moral culpability for the offending. In addition to childhood deprivation the offender also suffered head trauma. He left school in year 9 to pursue an apprenticeship and left home at the age of 14 or 15 and was homeless at 17 years of age. He started abusing substances at the age of 15 and had progressed to significant drug abuse by the age of 18. It was submitted the offender’s criminal history demonstrated an escalation in his criminal offending around the age of 18 or 19, consistent with his drug dependency. In addition he experienced a decline in his mental health with suicidal ideation and at least two “genuine attempts of suicide”.

  5. The offender relied on his relative youth at the time of the offending however having been granted strict bail awaiting trial he took steps towards rehabilitation by abstaining from illicit substances. He had since maintained the support of his partner and maintained full-time employment.

  6. In mitigation of sentence the solicitor for the offender submitted that the role of the offender was to a lesser degree than that of the principals in either the kidnapping of Tarasenko or the robbery of Alamango. There was no pre-planning on the part of the offender and the Bugmy factors meant he would be a lesser vehicle for both specific and general deterrence.

  7. It was submitted the Court would find there are good prospects of rehabilitation, and a finding of special circumstances was open.

  8. The offender conceded that the s5 threshold had passed and that a sentence of full-time imprisonment is the only outcome however the principle of parity with the co-offenders must be considered.

  9. In his oral submissions the solicitor for the offender rehearsed his submissions that based on the evidence at trial the offender was not a principal offender, but was ready, willing and able to assist in the joint criminal enterprise. In the application of the principle of parity, this offender is to be sentenced for two offences whereas both Bagang and RS had been sentenced on the basis of two offences plus a serious offence on a Form 1.

The Crown submissions in reply

  1. In relation to the disputed fact as to whether the offender left the vehicle when it arrived in North Gosford outside the home of Alamango, the Crown submitted that the Court would not accept the offender’s evidence because it was in stark contrast to the evidence of both RS and Alamango.

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.”

  1. In assessing the objective seriousness of the offending in Count 1 I have had regard to the four factors identified by Howie J in R v Newell [2004] NSWCCA 183. I also note that his Honour held that the last factor, namely, the nature of the advantage the offender sought to obtain is not conclusive as to the seriousness of the offence.

  2. Consistent with the remarks of Judge Barrow SC in sentencing Bagang, I find that the period of detention was for about 2½ hours during which time the victim was “in a state of abject terror”. The circumstances of the detention involved the victim being grabbed from the street, threatened with a knife by Gualdi, punched in the head by a number of the co-offenders and also punched and kicked by this offender at the lookout. Whilst the offence was aggravated by the use of a knife, and Bagang was sentenced on different facts which included that the offender not only punched and kicked the victim but around this time used a knife to cause a laceration to the victim’s ear and hand, that was not established on the evidence at trial and the offender is not to be sentenced on that basis.

  3. The purpose of the detention was a punishment for failure to pay an alleged drug debt owed by Tarasenko. The offender is not to be sentenced in respect of the wounds sustained to Tarasenko’s ear and hand but rather the swelling and bruising, or some of it, suffered by the victim which still constituted a serious example of actual bodily harm. I find that the offending fell within the mid-range for an offence pursuant to s86(3) of the Crimes Act and constituted seriousness offending.

  4. In assessing the objective seriousness of the offending in Count 3, I have had regard to the guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 and find as follows:-

  1. The offender was young, being 21 years of age at the time of the offending but had a criminal history which included two serious supply drug offences for which he was sentenced to imprisonment to be served by way of Intensive Correction Orders.

  2. The offending involved the use of a knife by a co-offender which was capable of killing or inflicting serious injury.

  3. There was a limited degree of planning given the offender agreed to go in the car driven by RS from Crackneck Lookout which was not the vehicle in which he arrived at the lookout.

  4. Actual violence was inflicted on the victim who was punched to the head and threatened with a knife.

  5. The victim was not vulnerable.

  6. $2,000 in cash and jewellery was stolen from the victim Alamango.

  1. I am not satisfied beyond reasonable doubt that the offender was one of the two men who alighted from the vehicle nor am I satisfied that he went into the home of the victim Alamango. He is however to be sentenced as taking part in a joint criminal enterprise, and finally he pleaded not guilty to the offence.

  2. 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.

  3. I am satisfied that whilst the offender did not leave the vehicle, he did assault the victim once inside the vehicle. Having regard to all of the circumstances of the offending I find that it was at the top of the mid-range for an offence pursuant to s97(1) of the Crimes Act and more serious than that contemplated in the guideline judgment.

  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 both offences was high. In respect of Count 1 he was directly involved in the physical assault of Tarasenko and in respect of Count 3 he was in the vehicle when Alamango was assaulted by multiple persons and must have known there was to be a knife used. Whilst there was no real hierarchy of offenders in this criminal enterprise, I find that the offender was a follower rather than a principal directing the criminal enterprise.

  6. General deterrence is important in sentencing for offences pursuant to s86(3) and s97(1) of the Crimes Act. I agree with Judge Barrow SC’s characterisation of the offending having a gangland quality in which the co-offenders took the law into their own hands to mete out punishment for a drug debt and then to perpetrate a robbery on an unsuspecting drug dealer. Parliament has prescribed lengthy periods of imprisonment as maximum penalties for these offences, namely 25 years imprisonment in respect of Count 1 and 20 years imprisonment in respect of Count 3. This not only indicates the seriousness of the offending but provides a guidepost in the sentencing process. A clear message must be sent 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 has a criminal record whereby two sentences of imprisonment had been imposed on him for drug supply offences, to be served by Intensive Correction Orders, one of which he was still subject to at the time of this offence. Notwithstanding that the order was revoked he did not spend any time in prison as the revocation took place after the expiry of that order. The fact that he was subject to an ICO at the time of commission of the offence and therefore on conditional liberty is an aggravating factor to be taken into account.

  1. Whilst Judge Barrow SC found there was limited organisation and coordination involved in the offences, that did not apply to this offender, and it is a mitigating factor that there was no planning on his part to commit the offences.

  2. There are significant subjective factors to be taken into account in the sentencing synthesis here. The Crown did not challenge, and I accept the history of childhood deprivation as set out in the report of Dr Gilligan and supported by the testimonials from the offender’s sister and maternal aunt. As a child he was exposed and subjected to domestic violence and abuse. He left home at age 14 and was abusing substances at the age of 15 which led to significant drug abuse by the age of 18. The offender was homeless, and his criminal offending escalated around the age of 18 or 19, consistent with his drug dependency. I also accept that his mental health declined to a point where he had suicidal ideations and at least two attempts of suicide.

  3. There are significant subjective matters which have to be taken into account in respect of this offender’s background, his exposure from an early age to a culture of extreme violence, his consumption from an early age of alcohol and drugs and the effect of a lifetime of deprivation on him. In Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 the High Court held:

1. The circumstances that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his/her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way [40].

2. The effects of profound deprivation do not diminish over time and repeated offending and should be given full weight in determining the sentence in every case [42-44].

3. A background of that kind may leave a mark on a person throughout life and compromise a person’s capacity to mature and learn from experience [43].

  1. These are significant factors to be taken into account on sentencing this young offender. They reduce the moral culpability for his offending and also reduce the need for general deterrence.

  2. Also relevant are the diagnoses of mild dysthymia with anxious distress and the offender’s history of being diagnosed with ADHD at age 12 but not treated. He suffered a head injury as a child as a result of a bicycle accident and at 24 years of age was diagnosed with a heart condition for which he requires annual review. This has given rise to anxiety about the availability of such review and assessments during an extended term of imprisonment. However, it is the responsibility of Justice Health to provide appropriate care and treatment for prisoners – see R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186 at [135].

  3. In accordance with DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, I am satisfied that these are also matters which reduce the impact of general deterrence on the sentencing exercise but also mean that any term of imprisonment would be more onerous for the offender than for the general prison population.

  4. A significant matter to take into account is the youth of the offender at the time these offences took place. He was 21 years of age at the time of the offences and is now 24. It is well established that in sentencing young offenders emphasis must be given to rehabilitation rather than general deterrence, denunciation and retribution – see KT v R (2008) A Crim R 112; [2008] NSWCCA 51 per McClellan CJ at CL. In BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 Hodgson JA, having referred to KT v R, said as follows:

“4 First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person’s less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] – [36].

5 Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity, and that a ‘child offender’ of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime.

6 Third, I do not think courts should be over-ready to discount the relevance of an offender’s youth on the basis that the offender has engaged in adult behaviour or acted as an adult. …”

  1. Notwithstanding his youth, I have taken into account the criminal antecedents of the offender which are no doubt a result of his drug abuse and dependency.

  2. I accept that the offender has expressed remorse for his offending conduct and has demonstrated some insight into the impact of his criminal conduct on the victims of these crimes. The offender made significant progress with his rehabilitation whilst on remand bail, being abstinent from the use of prohibited drugs and obtaining full-time employment and a pro-social relationship with his partner. These are positive factors to be taken into account however I accept the opinion of Dr Gilligan that the offender remains vulnerable to relapse which means that his prospects for rehabilitation are somewhat guarded. This means that his risk of recidivism is also dependent upon his poly-substance use disorder remaining in remission and him not relapsing into drug abuse.

  3. 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. Both Bagang and RS were sentenced by Judge Barrow SC for the same two offences however each had an offence pursuant to s97(1) of the Crimes Act taken into account on a Form 1 for the robbery in company of Jesse Tarasenko. That offence was taken into account in respect of sequence 5, the robbery in company offence concerning Alamango. The sentences imposed were as follows:-

Bagang

Count 1 – Indicative sentence 8 years and 6 months reduced by 30% to 5 years and 11 months imprisonment

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

Aggregate sentence imposed of 7 years and 6 months imprisonment with a non-parole period of 4 years and 6 months

RS

Count 1 – Indicative sentence of 8 years reduced by 60% to 3 years and 2 months imprisonment

Count 5 – Imprisonment for 5 years reduced by 60% to 2 years

Aggregate sentence imposed of 4 years and 2 months imprisonment with a non-parole period of 2 years and 6 months imprisonment

  1. In respect of Bagang, I note that he had a criminal record for various offences the most serious of which were two-armed robbery offences for which he served a sentence of imprisonment which had just expired prior to the commission of the index offences. Judge Barrow SC found his moral culpability for the offending was reduced by reason of childhood deprivation, he had demonstrated remorse and had mental health issues (but no reduction in his moral culpability for the offending). He received a discount of 25% for his plea and 5% for assistance.

  2. In respect of RS, he was sentenced on the basis of agreed facts which demonstrated an active involvement in both joint criminal enterprises. He had a limited criminal history the most serious offence being supply an indictable quantity of prohibited drug for which he received an ICO which he was subject to at the time of the offences. The Court also took into account a significantly deprived background. He had demonstrated remorse, obtained a significant discount for assistance pursuant to s23 of the CSPA and he gave evidence for the Crown at trial.

  3. I have had regard to the sentences imposed by Judge Barrow SC and the starting points for those sentences. I note that given the offender’s acquittal on Count 2 on the Indictment the Crown accepts that it would necessarily follow that the starting point in respect of Count 1 would be less than that of both RS and Bagang. Having regard to the significant subjective factors here I also find that the starting point for sentencing the offender in respect of Count 3 will be less than that found by Judge Barrow SC in respect of Count 5 for both Bagang and RS.

  4. I intend to sentence the offender by way of an aggregate sentence pursuant to s53A of the CSPA. To provide transparency in the sentencing process I provide the following indicative sentences:-

Count 1 – 6 years imprisonment

Count 3 – 4 years imprisonment

  1. In arriving at an aggregate sentence it is important to have regard to the principle of totality in sentencing. It is clear that in aggregating the sentence, the principle of totality applies, and there must be some accumulation of sentences. Any aggregate sentence must be “just and appropriate” to the totality of the offending behaviour.

  2. In Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27] Howie J said:-

“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

  1. The offences were part of the same course of criminal conduct which occurred on the same night. However, the offences concerned two different victims and therefore some accumulation on sentence is warranted. I therefore intend to sentence the offender to an aggregate sentence of 7 years imprisonment.

  2. I find special circumstances given the offender’s youth, his medical and rehabilitation needs which mean that he will need a longer time in the community on parole. I therefore intend to alter the statutory ratio between head sentence and non-parole period and set a non-parole period of 3 years and 6 months commencing on 14 July 2024, taking into account the time he has already spent in custody.

Orders

  1. You are convicted of Counts 1 and 3 on the Indictment.

  2. I sentence you to an aggregate sentence pursuant to s53A of the CSPA of 7 years imprisonment. The non-parole period will be a period of 3 years and 6 months imprisonment to commence on 14 July 2024 and to expire on 13 January 2028.

  3. The balance of term will be for a period of 3 years and 6 months commencing on 14 January 2028 and expiring on 13 July 2031.

  4. Your parole eligibility date will be 13 January 2028. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence. Annexure A - Summary of Facts on Sentence (20769, docx)

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Decision last updated: 31 October 2024

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BP v R [2010] NSWCCA 159
Bugmy v The Queen [2013] HCA 37
Bugmy v The Queen [2013] HCA 37