R v Bolder R v Zaphir - [2008] NSWCCA 222

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v Bolder R v Zaphir [2008] NSWCCA 222

FILE NUMBER(S):
2006/15004
2006/15005

HEARING DATE(S):
4 September 2008

JUDGMENT DATE:
25 September 2008

PARTIES:
The Crown (Appellant)
Dean Bolder (Respondent)
Alexander Aristotle Zaphir (Respondent)

JUDGMENT OF:
McClellan CJ at CL Hoeben J Harrison J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
06/11/0837

LOWER COURT JUDICIAL OFFICER:
Nicholson DCJ

LOWER COURT DATE OF DECISION:
18 April 2008

COUNSEL:
N Noman (Crown/appellant)
R Burgess (Bolder - respondent)
H Dhanji (Zaphir - respondent)

SOLICITORS:
Director of Public Prosecutions (Crown)
Legal Aid Commission of NSW (Bolder)
John Krajcik (Zaphir)

CATCHWORDS:
CRIMINAL LAW – Sentencing – Crown appeal – Manifest inadequacy of sentences – Assault with intent to rob s 97(1) Crimes Act – Sentenced to periodic detention – Whether delay in committal and trial process justified mitigation of sentences – Whether length and conditions of bail justified mitigation of sentences – Whether sentencing judge placed disproportionate emphasis on rehabilitation – Whether sentencing judge undervalued need for personal deterrence – Whether sentencing judge erred in finding age of offenders would lead to hardship if fulltime imprisonment imposed – Consideration of guideline judgment in R v Henry – Present offences at least as serious as those contemplated in guideline judgment

LEGISLATION CITED:
Criminal Appeal Act 1912
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY:
Principal judgment

CASES CITED:
R V Douar (20065) 159 A Crim R 154
R v Fidow [2004] NSWCCA 172
R v Hathaway [2005] NSWCCA 368
R v Henry (1999) 46 NSWLR 340
R v Johnson (unreported, NSWCCA, 16 May 1997)
R v Wall [2002] NSWCCA 42

TEXTS CITED:

DECISION:
Bolder:
1. Appeal upheld.
2. Quash the sentence imposed in the District Court.
3. Sentence the respondent to a period of fulltime imprisonment being a non-parole period of 2½ years commencing on 16 May 2008 and expiring on 15 November 2010 with a balance of term of 2 years commencing on 16 November 2010 and expiring on 15 November 2012. The first date the respondent would be eligible for release to parole is 15 November 2010.
Zaphir:
1 Appeal upheld.
2.Quash the sentence imposed in the District Court.
3.Sentence the respondent to a period of fulltime imprisonment being a non-parole period of 2½ years commencing on 2 May 2008 and expiring on 1 November 2010 with a balance of term of 2 years commencing on 2 November 2010 and expiring on 1 November 2012. The first date the respondent would be eligible for parole is 1 November 2010.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/15004
2006/15005
McCLELLAN CJ at CL
HOEBEN J
HARRISON J
THURSDAY, 25 SEPTEMBER 2008

R v BOLDER, Dean
R v ZAPHIR, Alexander

Judgment

McCLELLAN CJ at CL: These are two appeals by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against the inadequacy of sentences imposed on the respondents. The respondents were each tried and convicted of one count…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read R v Bolder R v Zaphir and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] NSWCCA 222
Decision Date: 25 September 2008

CaseChat Overview and Summary

This appeal involves the respondents, Bolder and Zaphir, who were sentenced for assault with intent to rob under s 97(1) of the Crimes Act. The Crown appealed the sentences imposed by the District Court, arguing they were manifestly inadequate. The respondents were sentenced to periodic detention, which the Crown contended was inappropriate given the severity of their unprovoked attack on Mr Ng, resulting in significant violence.

The legal issues addressed by the Court included whether the delay in the committal and trial process justified mitigating the sentences, whether the length and conditions of bail should be considered in mitigation, whether the sentencing judge appropriately balanced rehabilitation and deterrence, and whether the age of the offenders justified less severe sentences. The Court also considered the guideline judgment in R v Henry to assess the seriousness of the current offences.

The Court found that the sentences were manifestly inadequate, particularly due to the direction that they be served by periodic detention. The Court noted that the attack was unprovoked and involved significant violence, with no remorse shown by the respondents. The personal circumstances of the offenders, while difficult, did not justify reducing the sentences beyond what was appropriate for the offences. The Court concluded that full-time imprisonment was necessary and upheld the Crown's appeal.

The Court quashed the original sentences and imposed new terms of full-time imprisonment. For Bolder, the sentence was a non-parole period of 2½ years, with a balance of 2 years, and for Zaphir, the sentence was also a non-parole period of 2½ years, with a balance of 2 years. The respondents became eligible for parole on specified dates.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The appellant submitted that the sentences imposed on both respondents were manifestly inadequate. It is submitted that both the terms of imprisonment are inadequate and that the inadequacy is further compounded by the direction that the sentences be served by way of periodic detention.The facts Mr Ng was at the time of the offence a 63 year old pensioner. On 25 February 2006 he went to a block of home units to visit his sister. He walked up a flight of stairs from the road and saw two men coming down a flight of stairs onto a landing. These persons were the respondents who lived in the same block of home units. Mr Ng said that the two men retreated up the stairs and he continued and visited his sister. He was carrying two bags of vegetables at the time. He also had a wallet in his back pocket which contained $2,000. After about 20 minutes had passed Mr Ng left his sister’s unit and walked towards the stairs. When he reached the top landing he saw Zaphir across the road leaning on the side of a car. Zaphir gave a hand signal to Bolder (who was hiding amongst the nearby otto bins). Bolder jumped out and punched Mr Ng in the nose with a closed fist. Mr Ng described the force of this punch as strong enough to make him unconscious. Bolder was described by his Honour “as a powerfully built, fit man.” Mr Ng gave evidence that his own weight was 63 kilos and his height 160 cms. The evidence indicated that multiple punches were inflicted on the appellant’s face. As Mr Ng was seeking to defend himself by using his hand to fend off the attack by Bolder, Zaphir rushed up and joined the attack. Mr Ng was held from behind so that he could not defend himself. He said that the two men held him upside down and “chuck me down the flights of stairs and I landed on my head and my head was heavily bleeding as a result of that.” Mr Ng ended up lying on the intermediate landing on the stairs from where he was dragged along the landing and down the stairs onto the footpath. He gave evidence that while he was lying on his back on the footpath Bolder was punching and continually kicking him whilst Zaphir put his hands in his pockets and searched him uttering “money, money, money.” Mr Ng managed to keep his hand over the rear pocket of his pants throughout the attack. However, his keys were taken from one of his pockets. The trial judge found that the attack lasted no more than 2 minutes and ended when several neighbours responded to Mr Ng’s cries. The respondents ran off and were arrested shortly afterwards. Bolder declined to be interviewed. Zaphir agreed to an interview in which he said he had seen a fight involving Bolder and that he had come to Bolder’s aid. The jury rejected this account although Zaphir did not give evidence in the trial. Bolder did give evidence in the trial in which he said he had confronted Mr Ng about a stolen bum bag which he claimed Mr Ng had stolen 2 weeks earlier. Bolder said that Mr Ng grabbed his throat, choking him and that he pushed Mr Ng which led to blows being exchanged by both of them. He claimed that Zaphir came to his aid. The jury also rejected Bolder’s account.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

CLELLAN CJ

Both respondents were in the early forties when sentenced. There was no evidence before the sentencing judge that gaol is more isolating or arduous for inmates in their forties. This consideration was simply irrelevant. By having regard to it the sentences have been further reduced from those which were appropriate.Decision The principles in relation to Crown appeals are well known. They were summarised by Wood CJ at CL in R v Wall [2002] NSWCCA 42. I need not repeat them. Although a Crown appeal should be rare and confined to establishing matters of principle for the guidance of sentencing courts nevertheless an appellate court may interfere to avoid manifest inadequacy or inconsistency in sentencing. Notwithstanding the care which this Court must exercise before intervening I am in no doubt that the sentences which his Honour imposed were manifestly inadequate. Apart form the inadequacies of the identified term his Honour provided further and significant leniency by directing that the sentences should be served by periodic detention (R V Douar (2005) 159 A Crim R 154. The Crown submitted during the course of the sentencing proceedings that a fulltime custodial sentence was the only appropriate penalty. I agree. There were no circumstances in relation to either respondent which justified the sentences his Honour imposed. This Court must intervene. The offences committed by the respondents were unprovoked and in attempting to rob Mr Ng they inflicted gratuitous and significant violence. There is no explanation for the offence by either offender and no remorse has been demonstrated. Although the evidence disclosed that each offender has faced difficulties in life there is nothing in their personal circumstances which justified ameliorating the sentences beyond those otherwise appropriate for their offending. Having regard to the various matters to which I have referred I am of the opinion that the following orders should be made:In relation to Mr Bolder1. Appeal upheld.2. Quash the sentence imposed in the District Court.3.Sentence the respondent to a period of fulltime imprisonment being a non-parole period of 2½ years commencing on 16 May 2008 and expiring on 15 November 2010 with a balance of term of 2 years commencing on 16 November 2010 and expiring on 15 November 2012. The first date the respondent would be eligible for release to parole is 15 November 2010.In relation to Zaphir1. Appeal upheld.2. Quash the sentence imposed in the District Court.3.Sentence the respondent to a period of fulltime imprisonment being a non-parole period of 2½ years commencing on 2 May 2008 and expiring on 1 November 2010 with a balance of term of 2 years commencing on 2 November 2010 and expiring on 1 November 2012. The first date the respondent would be eligible for parole is 1 November 2010. HOEBEN J: I agree with McClellan CJ at CL and the orders which he proposes. HARRISON J: I agree with McClellan CJ at CL.

Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

Full text does not contain this section.