R v Bolder, Dean and Zaphir, Alexander Aristotle

[2008] NSWDC 121

CITATION:	R v Bolder, Dean and Zaphir, Alexander Aristotle [2008] NSWDC 121
JUDGMENT DATE:	18 April 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted. SentencedLnon parole period of 15months to date from 18/04/08; special circumstances found; balance of term nine months, to be served by a way of periodic detention
CATCHWORDS:	Criminal Law - Sentencing after trial - Assault with intent to rob in company - guideline judgment - common criteria of offeners and offences - victim impact statement - purposes - imprisonment sentence of last resort - applying principle - periodic detention.
LEGISLATION CITED:	s.5 (1) Crimes (Sentencing Procedure) Act 1989
CASES CITED:	R v Gladue (1999) 1SCR 688 [80] R v Cuthbert (1967) 2 NSWR 329 R v Rushby (1977) NSWLR 597 R v Hayes [1984] 1 NSWLR740 R v Rause unreported NSWCCA 8 August 1992 R v Henry CCA (1999) 46 NSWLR 340
PARTIES:	Regina Dean Bolder Alexander Aristotle
FILE NUMBER(S):	2006/15004; 2006/15005
COUNSEL:	L. McSpedden for Accused Bolder P. Paish for Accused Zaphir
SOLICITORS:	Ms Walker - Office of the DPP for Crown

JUDGMENT

HIS HONOUR:

1. In February of 2006 Alexander Zaphir and Dean Bolder were 41 or 42 years of age. Both had minimal criminal records, yet on 25 February each, while in the company of the other, was involved in a vicious attack upon a sixty plus year old Chinaman (sic) with intent of robbing him of his money. After a nine day trial each was found guilty. That trial ended on 24 January 2008. Today each is to be held accountable for his criminal conduct.

2. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for these offences before this Court committed by these offenders harming this victim in the community in which he lived, Gladue -v- The Queen (1999) 1SCR 688 [80]. My initial task requires an assessment of the objective criminality of the offences before the Court. I also need to have regard to matters personal to each offender, subjective matters.

3. The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the Court relating to the offence and to the offender. Each offender’s rehabilitation prospects will have to be assessed even if looking through a glass darkly. Before any sentence can be made, there are likely to be technical questions relating to deterrence whether special circumstances are to be found, and finally, of course, the ultimate length of any term of imprisonment or other sentencing disposition that is to be imposed. None of these can be commenced until the primary facts are determined.

4. What weight needs to be given to all of these matters against the imperative that all sentencing would have as its primary focus, the protection of the community will also need to be determined. See R v Cuthbert (1967) 2 NSWR 329, R v Rushby (1977) NSWLR 597, R v Hayes [1984] 1 NSWLR 740.

The Facts

5. The victim Bak Shin Ng was a Korean National. His sister lived in a Housing Commission unit in Mount Street, Pyrmont. In February 2006 Zaphir and Bolder each had a unit of their own in the same complex. Ng had a wallet on him. His evidence was that there was $2000 in the wallet. He was prone to overstate things so I could not be satisfied beyond reasonable doubt that he had that much money. I am certainly not satisfied beyond reasonable doubt that whatever sum of money he had was specifically identified by either of these offenders.

6. Ng came with groceries to visit his sister. On his arrival he saw the two offenders on the stairs not far from the units. Those stairs were used by pedestrians to get from their level, which was an upper level where the units were located, to a lower level where access to the fish markets and the parks below were to be found. Ng stayed with his sister for some twenty minutes or so. Then he made his way down the stairs from the top of the first level of the units towards street level, intending to head off, as I understand it, to Chinatown.

7. Before he reached street level there was a landing in the stairwell leading to an area where the units’ Otto bins were kept. Moments before he reached the landing Zaphir signalled to Bolder, then hiding in among the Otto bins obscured from Ng’s view. Upon receiving the signal Bolder, a powerfully built, fit man accosted Ng and immediately began to assault him, initially with a king hit to the bridge of his nose. Among the early blows in that assault, and quite possibly the king hit, was one fracturing Ng’s nose. Ng described a shower of punches directed at him.

8. Zaphir crossed the road to join Bolder. Zaphir grabbed Ng from behind in a bear hug that pinned Ng’s arms against his body. Ng fell or was pulled over, then he was dragged some distance from the entrance to the stairs onto the roadway. The word “money” was uttered several times by one or both of the would be robbers. Zaphir was frisking Ng, searching or trying to search his trouser pockets. Ng claims he placed his own right hand over his back pocket and sought to keep it there. That was the pocket in which his wallet was located. While his keys may have either been taken or dislodged from his pocket onto the ground, so far as I am aware nothing else was taken.

9. In all I am satisfied Ng was struck at least six or seven blows by Bolder’s fists and kicked two or three times in the torso region by each of the offenders. From the outset Ng commenced screaming. The assault was terminated by the arrival of several neighbours responding to the screams. By the time the neighbours arrived Ng was still on the ground being assaulted by both attackers. It is unlikely that the assault lasted longer than two minutes. Upon the arrival of the neighbours both men fled to an area of the fish markets.

10. The jury rejected Dean Bolder’s account, that he had confronted Ng about the theft of a bum-bag containing money when Ng had previously visited the units. Bolder’s defence was that Ng reacted violently towards him when that allegation was made. The physical altercation that took place was said to be necessary for Bolder’s own self defence. The jury also rejected Alexander Zaphir’s account of being a Good Samaritan by seeking to break up an altercation he had coincidentally come upon.

The objective criminality

11. From the facts as he finds them to be, the sentencing judge is required to assess the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour of each offender. That is done by comparing objectively the criminality exhibited in the present case with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of this offence is evaluated. Not surprisingly, the objective criminality has an important part in assessing the overall sentence.

12. Gleeson J, when Chief Justice of New South Wales, encapsulated the essence of the legal wrong done by robbers, and it would seem to me would- be robbers, and the reason why substantial punishment is required. His Honour said:

“One of the primary purposes of the system of criminal justice is to keep the peace. In this connection the idea of peace embraces the freedom of ordinary citizens to walk the streets and to go about their daily affairs without fear of physical violence. It also embraces respect for the property of others. Offences of the kind committed by the present respondent are not trivial instances of disrespect of private property, they are serious breaches of the peace. They are direct attacks upon the security of the person and the property which the law exists to protect.”


His Honour continued in the case, it is quite likely that the young man before him -

“Did not understand and he may never understand the seriousness of his antisocial behaviour. But the courts understand it. Crimes of this kind, especially when committed by an offender with a long criminal history deserve severe punishment.” R v Rause unreported NSWCCA 8 August 1992

Well, of course so far as that last sentence is concerned, that does not apply here.

13. While the remarks of the Chief Justice just quoted were in the context of a robbery that was completed, they are also apposite in the context of an assault with intent to rob. In this case the level of violence was substantial and it was administered by two persons. That violence continued to be administered by both when Ng was on the ground. Both men were younger than, and Boulder was certainly fitter than the victim.

14. All that is required by the law for robbers to act in company is that the co-offender be ready, willing and able to support the principal by his presence. In this case, though, the co-offender went beyond the minimal requirement. Each actively pursued the common purpose. Zaphir as the searcher was more likely to be the actual robber. Bolder, as the co-offender, was the one who first accosted and stopped the victim. Both manhandled and assaulted him.

15. In this case the men were persistent. The assault for the purposes of consummating the robbery was longer than the majority of assaults involved in this kind of offence. As I say, while there is no specific reliable evidence of time, it continued for the duration it took the neighbours to respond to Mr Ng’s screaming. The time I have put as not exceeding two minutes. Even so that is far longer than the norm.

16. Mr Ng was specifically targeted. I cannot be satisfied either offender had any specific information about him. I do not rule it out. Ng claims to have won the money on his person at a nearby casino. One of the offenders has links to a person working at the casino and indeed worked there himself for a while. There was planning to an extent, namely that the ambush was put in place. It is the ambush, though, rather than the level of planning that constitutes an aggravating feature. The use of the feet to strike Ng when he was on the ground constitutes an aggravating feature. The striking with the foot was to the body and not to the head. While Ng was over sixty he presented as fit and wiry. True he was alone, but he was not otherwise a vulnerable victim as that term is generally understood.

17. In the guideline judgment of R v Henry CCA (1999) 46 NSWLR 340, which applies to s 97 robberies, Spigelman CJ lists seven features sufficiently common upon which the guideline judgment for armed robberies was formulated.

· Young offender with little or no criminal history.

· Weapon like knife capable of killing or inflicting serious injury.

· Limited degree of planning.

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

· Victim in vulnerable position such as a shopkeeper/taxi.

· Small amount of goods or money taken.

· Plea of guilty, strong Crown case.

In this case the offenders were in their forties but with little criminal history. There was no weapon. There was an ambush planned. There was a sustained and substantial level of violence. The victim was outnumbered but not otherwise in a vulnerable position. Nothing was taken. There can be no mitigation on account of a plea.

18. Added to the criminality of this offence by contrast with the guideline is the presence of two offenders. Actual bodily harm was occasioned. An overview of this offence against others establishes this offence as exhibiting greater criminality than those assaults with intent to rob exhibiting the common features generally referred to in Henry CCA (1999) 46 NSWLR 340, with the obvious modification of no weapon and little taken, but still falls below the seriousness of offences created by an aggravated form of s 97 offences.

19. Objective criminality attaching to these offences is such that it does call for a substantial period of imprisonment.

Victim impact statement

20. I have received a victim impact statement. The material contained in the victim impact statement is not sworn evidence and has not been subject to cross-examination. To the extent that opinions are expressed in the statement, I recognise they are not opinions of a qualified expert.

21. The victim impact statement, coming as it does from the primary victim, may if I accept it as reliable, provide unsworn evidence as to the facts of the offences and to their effect upon him. The function of statements such as this one is firstly to give victims an opportunity of being heard in the sentencing proceedings by publicly identifying the impact of the trauma visited upon them by the actions of an offender.

22. Secondly, to enable the sentencing proceedings to assist the victim as they move towards some closure of grief, resentment or brooding arising from the criminal conduct of an offender. Thirdly, the victim impact statement contributes to an offender at least hearing at firsthand, and perhaps gaining an insight into, the impact his offending conduct had upon his victim. Finally, a victim impact statement ensures the Court has a continuing consciousness of the impact violent crime has upon those ordinary men and women who are its victims. As such a victim impact statement can play a very important part in the administration of criminal justice.

Mr Bak Ng writes this:

“The actions of Mr Bolder and Mr Zaphir have greatly affected mine and my family’s lives. Since they committed the crime I suffer from nightmares and sleepless nights and endure painful flashbacks of the attack. I’m constantly afraid that someone will injure me again when I leave the house. I am no longer able to trust people like I did before.


Mr Bolder and Mr Zaphir’s crime has also caused long-term physical injury. My shoulder is damaged. I no longer perform basic duties such as cooking and gardening.”

There are other portions of the statement, but they are not relevant to impact of the offence.

Dean Bolder

23. Dean Bolder was born in August of 1964. He is a single man presently aged forty-three. At the time of his offending he was forty-one. He has two elder half brothers, as I understand it, but contact between him and his siblings is very infrequent. His mother died some time in 2006, but, as I understand it, after this offending. He was close to her. She had been the victim of domestic violence at the hands of his alcoholic father. Bolder had witnessed the violence.

24. There have been issues between him and his father, the past domestic violence towards his mother being one. The father was critical of Bolder, comparing him unfavourably with one of the half siblings. Bolder told Anna Robilliard, a forensic psychiatrist retained by the defence, that he and his father now have an amicable relationship. That must be of recent times because he told Dr Tran, a treating psychiatrist between 2003 and 2006, that he could not talk to his father. Things may have changed, because the father is now frail in health with emphysema and a cancer diagnosis. Bolder takes an active role in caring for his father. In 2006 he claimed a regular sexual partner and three prior relationships. Nonetheless he has lived alone for the last ten years.

Education skills and employment

25. He attended La Perouse Primary, then Matraville High School, where he completed year 10. He left because he found school difficult and unrewarding. He had been placed in the lower classes without appropriate support or remediation. He had difficulty sustaining concentration and was disruptive in class. Within twelve months of leaving he found factory work and then worked at the Flemington Markets. He picked fruit, did labouring, kitchen-hand work and worked on fishing trawlers operating out of Sydney and of Cairns.

26. He obtained a deckhand certificate in his time with Sydney Showboats. He had completed two courses at TAFE, the deckhand certificate course, and commercial cookery certificate. He had casual employment at Star City Casino as a pastry hand, a position occupied when the offence was committed. Since the offence he obtained employment as the snack bar chef at the Royal Sydney Yacht Club. An offer of a position for six months at $43,000 annually was made to him on 8 March this year. That offer has been tendered in evidence before me. He played rugby league at a professional level.

General health

27. Dean Bolder presents as a very fit forty-three year old. He damaged an Achilles tendon playing touch football a couple of years ago. There is a report saying that his recovery is sufficient to permit him to work and I have just referred to work he has recently been doing. He has been assaulted by robbers to a point of unconsciousness eight years ago. There are sleeping difficulties.

Mental health

28. He has been diagnosed with attention deficit hyperactivity disorder. His personality profile testing registered significance on the major depression scale reflecting behaviours consistent with a depressive pathology. There was an extremely low score on the self-disclosure scale, which the psychologist excused on the basis that Bolder had difficulty identifying and acknowledging inner thoughts and feelings. That is a worrying feature given the reluctance by him to discuss with his treating psychiatrists what motivated his commission of an obscene exposure charge and an indecent assault in April of 2006. That is two months after the offending conduct I am dealing with.

29. Likewise, there has been no explanation for this offending conduct. My sense is that he is well aware of what drove him to offending on both occasions, but for reasons relating perhaps to embarrassment and shame and fear of being labelled he is reluctant to disclose. I doubt that the histories given to either Dr Tran or Ms Robilliard are full and frank, although as far as they went, I am not disputing them.

Alcohol and drug issues

30. Bolder has abused both drugs and alcohol. He began drinking when he was in his twenties. He has told Dr Tran and the Probation and Parole he indulged in binge drinking. On the other hand he told Ms Robilliard he had never been a heavy drinker. It is likely, however, he was a binge drinker. He claims not to have been drinking as much recently. In the past he has abused cannabis, heroin, amphetamine, cocaine and Ecstasy. He claims not to be using for some years now and was not using at the time of his involvement in this offence before the Court. The description given to Dr Tran of his drug abuse implied it was limited to recreational and social occasions. There is nothing before me to suggest any gambling problem.

Character and antecedents

31. Prior to this offence there was one court appearance in August 1989 relating to cannabis abuse and equipment for self-administration of drugs. When this offence was committed in 2006 it had been seventeen years since he had his earlier court appearance. When he offended on this occasion he is entitled to be regarded as having basically a clean sheet so far as criminal convictions were concerned.

32. His rehabilitation prospects became more clouded though with his subsequent convictions for wilful and obscene exposure and indecent assault. Otherwise, these offences play no part in assessing penalty for this one. He has shown a good work ethic through his twenties and thirties. He has shown some willingness to deal with his mental health issues, with Dr Tran, but apparently he is still having difficulty being frank and honest with himself. This offence appears entirely out of character. He appears prepared to advance his career through TAFE study.

Attitude to the offence

33. Given the defence he has run, he is unable to claim contrition for his offending conduct. Likewise given the defence he has run, I am unable to determine what motivated his criminal activity.

Custodial time

34. He has spent no time in custody for this offence, but I will return to that shortly.

Rehabilitation prospects
35. There has been offending conduct of a different kind since the offence. 2006 was a difficult year for this offender. His mother had mental health issues and a period in nursing home care and dementia. She subsequently passed away but must have been very frail at the time of this offence. He committed the instant offence and the subsequent offences during this period.

36. His father was at this time diagnosed with cancer. However, since 2006 there has been no further offending. As I earlier remarked, there was only one court appearance prior to this offending. Thus his antecedents indicate he is not a recidivist offender. He has a good work ethic. He has shown an interest in gaining employment qualifications. He participated in the personal support program by a Commonwealth employment agency. He has attended upon Dr Tran for some years now in relation to this mental health issues. These are all positive rehabilitation indicators.

37. On the other hand he has been unwilling to expose his reasons for offending on the two occasions in 2006. He has declined to acknowledge his guilt of this offence. Nor has there been any expression of remorse. These negative indicators make the prognosis of his rehabilitation more difficult, but I have determined that it is possible that he could choose not to disclose, but in the two years since the offence has moved on.

Alexander Zaphir

Personal circumstances, background and relationships

38. Alexander Zaphir is six months older than his co-offender. He has just turned forty-two at the time of offending. Currently he is forty-four. He is the youngest of three siblings. From his perspective, his family environment was not a healthy one. His mother was self-obsessed, schizophrenic, neurotic and prone to irrational behaviour. His father was infrequently absent working and when at home was emotionally distanced.

39. His siblings both sexually and physically abused him. After pubescence the abuse was more or a psychological nature. When, at seventeen, he disclosed the abuse to his father, he was ridiculed and shamed. His father’s reaction caused him great distress. Shortly afterwards he left the family. He has not had contact with them for twenty years. His father owned a service station and he was brought up in a materially comfortable home. But material comfort is not really an essential in raising children. Emotional comfort is far more important.

40. During his twenties he worked in Europe. He was married to a woman while living in Belgium; but they separated some fifteen years ago. He has had several long-term girlfriends but no de facto relationship since then. He claims one close friend and several casual friends as the essence of his support network.

Education, employment and skills

41. Zaphir was a capable student who was unhappy at school. Dr Nielsen identifies him of above average intelligence. He left aged fifteen after Year 10. It was at about this time he also left his family. He obtained an apprenticeship as a hair stylist. He studied his craft for three years at TAFE. He has skills and apparently flair. At eighteen he was awarded first prize in a national hairdressing competition. He was, by nineteen, a manager of a salon in London.

42. He also displayed skills as an art director and stylist in fashion shoots. He took up fashion photography with some success working in Europe. Regrettably he appears to have been unable to sustain the pace and pressure of this work. He has not worked consistently for the past six years. At the time of the offence he was seeking to perform volunteer work in a local community centre.

General health

43. He appears to be in reasonable physical condition. There are mental health and drug issues to which I shall now turn. Dr Nielsen, however, did refer to an adult physical illness but failed to identify it and I am unaware in the evidence before me of its nature.

Mental health

44. He claims a history of bipolar disorder to Probation and Parole. Dr Nielsen, a psychiatrist who examined this offender for the defence, preferred the diagnosis of dythymic disorder(chronic low grade depression). He did not appear to rule out bipolar disorder. It was Dr Nielsen’s opinion the dythymic disorder had affected his ability to work consistently and maintain long-term relationships.

45. There are a number of factors contributing to the disorder including genetic vulnerability, severe childhood abuse, drug abuse and the physical illness referred to by Dr Nielsen. There is nothing to suggest this condition played any causative part in his offending conduct. Dr Nielsen recognises Zaphir as vulnerable to a more severe depression and predicts the need for further treatment. I note Dr Nielsen observes Zaphir carries a higher risk of developing severe depression if incarcerated. Regrettably that can be one of the side effects of incarceration. The treatment and care for prisoners is the responsibility of Justice Health, rather than this Court.

Drugs and alcohol

46. The offender acknowledges he was using cannabis or other recreational drugs as a teenager for self-medication. There was a ten-year period of abstinence. At twenty-nine he returned to heroin use (as he told Probation and Parole), or was introduced to heroin and cocaine at the age of twenty-nine while working in Europe, (as he told Dr Nielsen). He has an eight-year history of Methadone maintenance. Currently his dose is fifty-five milligrams daily. There is also evidence of current occasional cannabis consumption.

Character and criminal history

47. At the time of this offence Zaphir had convictions for drink driving in Queensland, 1982, and obtaining property by deception, 1986. There is also apparently a conviction recorded in a London Magistrate’s Court for some offence of dishonesty. No?

BROCK: Your Honour, that is the obtain by deception. It appears on the New South Wales record for some reason, but it was in fact a conviction that arose in London, in England.

HIS HONOUR: I look at him and he is shaking his head.

OFFENDER ZAPHIR: There was only one in London, yes, the restaurant, leaving without paying in the restaurant, yes, there was just the one offence, your Honour.

HIS HONOUR: Was that an offence in London or--

OFFENDER ZAPHIR: That was in London, your Honour.

HIS HONOUR: In London, all right.

OFFENDER ZAPHIR: Yes.

HIS HONOUR:

48. Just so that can be clear to anyone reading this, should the need arise, the offence for leaving the restaurant without paying was an offence that occurred in London although it is recorded on a New South Wales sheet at Maryborough, I think it was, as 1986. It may well be that the date is wrong, and certainly the jurisdiction is wrong.

49. There has been no offending for more than fifteen years. The offences on the record are all summary. None of them are of a violent character. This offence before me appears again entirely out of character.

50. That is an interesting feature of this case, that two men, with no history of violence, got themselves into this violent situation.

51. The fact that this offence is out of character for Zaphir is reinforced by other matters. There is a reference of Dale Higgins, retiring pastor of the Newtown Baptist Church. He had an experience where Zaphir was the victim of an assault by a schizophrenic tenant in the Housing Commission units where Zaphir also lived. Reverend Higgins mediated and described Zaphir as calm, co-operative and forgiving and subsequently expressing concern for his assaulter’s wellbeing.

52. On another occasion in December 2005 Zaphir came to the rescue of a deaf man threatened by a Rottweiler being urged on by a female. Zaphir placed himself between the would-have-been victim and the dog. He escorted the deaf man back to the units. On 1 November 2007 he assisted Newtown Police in their inquiries in respect of a serious domestic violence situation in a nearby unit. His statement at its highest indicated that he could supply evidence of a disturbance in the relevant flat at the relevant time of a relevant domestic violence allegation.

53. This assistance to police was not of a kind that would normally attract a discrete discount to sentence. I did question when the matter was raised in evidence whether his statement had been served on the defence. The Crown did not know. More recently there has been a development to that. Today tendered in the case is an affidavit of Joshua Brock, a solicitor with the Legal Aid Commission, who indicates in an affidavit:

“In early April 2008 Mr Zaphir informed me that he had received a subpoena to give evidence for the prosecution in relation to the assault proceedings on 7 April 2008 and that he had been put on standby but had not been contacted by the police.”

On 9 April Mr Brock contacted Detective Durham of the Newtown Police who informed him that the assault proceedings had been adjourned to a date late in May and that Zaphir would be called to give evidenece. The Crown contests that in submissions by saying that is not likely and in any event that his evidence would be peripheral only. I refused request to adjourn the proceedings on account of that given the sentencing disposition that I have decided upon, but I am fortified in my (sentencing) decision by the fact that the police were willing to serve the statement upon the defence and, if necessary, use Zaphir as a witness.

54. The other use that I make of that evidence is this, that taken into account with the other matters that I have just mentioned, it demonstrates a civic-minded person who is making a worthwhile contribution to his community. In that context I am also conscious of the volunteer work with the community centre earlier referred to.

Rehabilitation prospects

55. Probation and Parole report recorded his continual denial of offending conduct may impede constructive casework with him. They also observed few positive outcomes could occur as a consequence of his denial. Zaphir’s community based support network, as I referred to it earlier, appears brittle. On the other hand there has been no offending since February 2006, nor was there much other offending in his adult life. He does not present as a recidivist offender. Probation and Parole have labelled him a “low risk offender.”

56. That concludes this objective review of each offender.

Additional matters

57. The parties inform me that the offenders have now been presented on trial on four occasions. Only on two occasions has the matter reached a stage where the jury retired to deliberate. The first deliberation resulted in a hung jury. I understand one jury was discharged. On the other occasion it would seem that the matter was not reached. Further, both accused have been required to report to police whilst on bail, initially, I think, daily and then subsequently two times weekly.

58. There can be no doubt being on bail, reporting to police, awaiting trial and being on trial are all stressful. That the offenders have been on bail for two years and been to court for purposes of trial on three prior occasions, are matters that can be taken into account as mitigating features. Ms McSpedden sought to argue Bolder had effectively been in custody for two and a half months, which could be related to this offence. My understanding is that whilst on bail for this offence he was alleged to have committed another offence of a different character.

59. In respect of that offence he was refused bail and went into custody. Ultimately he either received bail or the matter was in some way disposed of and he was released from custody. As a matter of law none of that custody, if I be correct, relates to this offence. Nor am I aware what impact, if any, the period in custody had upon the ultimate disposition of the charge to which it related. For these reasons, the prior custody is not taken into account in resolving this matter.

Setting the sentence

60. Maximum penalty for this offence is twenty years imprisonment. Of course the same maximum penalty applies to some fourteen other offences on my count created by the same section. All things being equal, such offences having elements such as a completed robbery or being armed or stopping a railway train would normally present as more serious than being in company with an intent to rob. Of course that having been said, it should still be borne in mind there are features of this particular offence that have amounted to aggravating circumstances already referred to.

Deterrence

61. In modern Australian society there is a very extensive raft of criminal laws passed by Federal and State parliaments. The chief purpose of the criminal law put in place by parliaments is to deter those tempted to breach its provisions. As I say, in this case a maximum penalty of 20 years. Parliament does that by prescribing penalties for those who engage in conduct prohibited by the criminal law. Consequently when a person is sentenced for a breach of the criminal law, he is exposed to the possible maximum penalty provided by the statute breached. Sentencing for breaches of the criminal law requires a sentencing judge to keep in mind those general deterrence aims of the criminal law for the community at large by keeping in mind the maximum penalties available and their deterrent purpose.

62. There is also a specific deterrence aimed at individuals like minded to these offenders who, but for such deterrence, would be willing to commit crimes similar to those for which these offenders are being sentenced. Finally there is a component of deterrence to be considered personal to an offender with a view to deterring him or her from re-offending. In my view the prolonged nature of these proceedings, their arrest, the Local Court proceedings, and the ultimate sentencing disposition are sufficient to satisfy me no further personal deterrence is required.

Guideline judgment

63. I have taken account of the features in this offence common with common features in respect of the guideline judgment in Henry CCA (1999) 46 NSWLR 340. As I said earlier, of course, that guideline judgment was written in respect of successfully completed armed robberies. That is to say it was written in respect of one of the more serious offences created by s 97(1).

Issues of parity

64. Both offenders play active roles in the commission of the offence. The person apparently tasked with searching the victim for valuables and if finding any, collecting them, is Zaphir. The person apparently tasked with subduing the victim is Bolder. On the objective facts there appears to be little to distinguish either ones’ importance in the success of the criminal enterprise.

65. Both offenders present with comparative subjective features. There is nothing in the subjective features that cries out for differing treatment between these offenders. The Crown’s submission was parity was appropriate. The defence do not seek to argue the proposition.

Special circumstances

66. This is a matter where special circumstances can be found. It is to be remember I noted the offenders were entitled to mitigation on account of the length of the bail period and reporting and tensions relating to incomplete trials. I intend to use that factor as one basis for finding special circumstances.

67. The age of each offender is well above the median age of prison population. In that sense they may be more isolated in prison than younger men would be. That isolation would make their custody more arduous. Given that it is the first time in custody for each offender, the rehabilitation of each would be better accomplished in a community setting. Both offenders have demonstrated conduct consistent with their taking their rehabilitation in the community seriously.

68. I am satisfied, as I said earlier, a term of imprisonment is called for. I have determined an overall sentence of two years imprisonment is required. A sentence of imprisonment should be a sentence of last resort. See s 5 of the Crime(Sentencing Procedure) Act 1999 . If that is so, then even more so should a sentence of full-time incarceration be a sentence of last resort. To borrow the language of s 5 Crime(Sentencing Procedure) Act 1999 , that is having considered all possible alternatives that no penalty other than full-time incarceration is appropriate, should be the attitude adopted by judges sentencing to full-time incarceration.

69. It seems to me that is implicit in the philosophy underpinning s 5(1). In this case I am satisfied that to satisfy the requirements of retribution and punishment some form of incarceration is necessary. It also reinforces the denunciation of the conduct. Both offenders have been assessed as suitable for periodic detention and have signed the relevant undertaking. Given their prior good characters, their present age, the absence of serious injury to the victim, I find that the penalty requiring partial incarceration is in all the circumstances an appropriate outcome.

Passing Sentence

70. Both stand up please. Dean Bolder and Alexander Zaphir, you are convicted, each of you, that on 25 February 2006 at Pyrmont in the state of New South Wales, while in the company of the other you did assault Bak Shin Ng with intent to rob him of certain property, namely a sum of money. For that offence I sentence you to a non-parole period of fifteen months to date from 18 April 2008.

WHITE: Your Honour, with the sentence of periodic detention, your Honour has to set a future date within, it is my understanding--

HIS HONOUR: No, I do not. These gentlemen are going into custody, as I anticipate they are, is that right, gentlemen? You have to go downstairs and enter documents?

SPEAKER: Yes, your Honour.

HIS HONOUR: If they are going into custody their sentence begins now and I deal with it in my remarks.

WHITE: Yes, your Honour.

HIS HONOUR: I set a non-parole period of fifteen months to date from 18 April 2008 and to expire on 17 July 2009. The balance of term of nine months is to expire on 17 April 2010. I make a periodic detention order directing each offender to serve his sentence by way of periodic detention. I order each to enter into custody now for the purpose (a) of commencing the sentence and (b) complying with the requirements of registration, fingerprinting, photographing and accepting any other directions as to where and when they are to attend to further serve and comply with the requirements made and incumbent upon them as a result of these orders. There are two custodies. You will be released some time today, as I understand it, is that right?

SPEAKER: Yes, that’s right, your Honour.