R v Bolder R v 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

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

R V Douar (20065) 159 A Crim R 154 R v Fidow [2004] NSWCCA 172 CASES CITED : 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

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

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

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

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 1 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 of assault with intent to rob whilst in company contrary to s 97(1) of the Crimes Act 1900. The maximum penalty for this offence is 20 years imprisonment. 2 The respondents were tried jointly and were each sentenced to a non-parole period of 15 months and a balance of term of 9 months with a direction that the sentences be served by way of periodic detention. The respondent Bolder failed to attend as required on 2 and 9 May 2008 and he commenced serving his sentence on 16 May 2008. The respondent Zaphir commenced serving his sentence on 2 May 2008. 3 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 4 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. 5 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. 6 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." 7 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." 8 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. 9 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. 10 The medical evidence established that Mr Ng suffered a fractured nose and multiple soft tissue abrasions and bruises to his scalp, forehead, nose, both arms, elbows and both knees.

Subjective features of the respondents Dean Bolder 11 Bolder was born on 6 August 1964. A pre-sentence report and psychological and psychiatric reports were tendered during the sentence hearing. However, no oral evidence was given. 12 The sentencing judge identified the fact that Bolder's mother had suffered violence at the hands of his alcoholic father. He was estranged from his father for a time but, his father now being in frail health, he had a closer relationship with him. His mother died in 2006. His Honour found that Bolder takes an active role in caring for his father. 13 Bolder had recently commenced a relationship. Although there was evidence that he had previously been involved in other relationships Ms Robilliard said in her psychological report that Bolder "never entertained close personal attachments." 14 Bolder left school after completing Year 10. He was able to secure employment in different fields and completed courses at TAFE, including a commercial cookery course. He was in regular employment as a chef until his arrest. 15 There was evidence which his Honour accepted that Bolder had been assaulted to the point of unconsciousness by robbers approximately 8 years before the offence. This led him to having sleeping difficulties. Bolder has been diagnosed with (adult) attention deficit hyperactivity disorder. His personality profile testing results are consistent with a depressive pathology. His Honour observed that he has been reluctant to discuss with psychiatrists his motivation for another offence involving obscene exposure and indecent assault in April 2006. Furthermore, his Honour could not discern any explanation for the offending conduct for which he was being sentenced. His Honour said: "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." 16 His Honour doubted whether Bolder had provided full and frank histories to the two psychiatrists and psychologists. 17 The sentencing judge concluded that the respondent was likely to have been a binge drinker. He had used cannabis, heroin, amphetamine, cocaine and ecstasy. However, Bolder was not under the influence of drugs when he committed the present offence. Although Bolder had previous convictions in 1989 relating to cannabis his Honour accepted that he should be assessed as having "basically a clean sheet so far as criminal convictions were concerned."

Alexander Zaphir 18 Zaphir was born on 2 February 1964. Both a pre-sentence report and a psychiatric report were tendered at the sentence hearing. No oral evidence was led. 19 Zaphir's early family environment presented him with considerable difficulties. His mother was self-obsessed, schizophrenic, neurotic and prone to irrational behaviour. His father was often absent and was emotionally distant. Zaphir was sexually, physically and psychologically abused by his two older brothers. When he disclosed the abuse to his father he was ridiculed. He has since cut off all contact with his family. Zaphir has supportive friends. He has had several long term girlfriends and married once. Zaphir has been assessed as having above average intelligence. He left school in Year 10 and studied hair dressing. By the age of 19 he managed a London salon and has since taken up fashion photography with some success. However, he has not worked consistently and had been working as a volunteer child care worker for a year before his arrest. 20 Zaphir claimed to the Probation and Parole Service that he was suffering from bipolar disorder. Dr Neilssen, a psychiatrist, diagnosed dysthymic disorder (chronic low grade depression) and did not rule out bipolar disorder. Dr Nielssen was of the view that Zaphir's psychological problems had affected his capacity to work consistently and maintain long term relationships. However, there was nothing to suggest that his condition played any part in the commission of the offence. Dr Nielssen believed that Zaphir carried a higher risk than the average person of developing severe depression if he were incarcerated. His Honour said: "Regrettably that [depression] 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." 21 Zaphir has a history of drug abuse which included heroin at age 29. He has since remained on a methadone program. Although Zaphir has convictions for drink driving in 1982 and obtaining property by deception in 1986 his Honour accepted that the present offence was "entirely out of character." Zaphir continued to deny his offending conduct to the Probation and Parole Officer who prepared the pre-sentence report. Although his Honour concluded that "few positive outcomes could occur as a consequence of his denial", Zaphir did not present as a recidivist offender.

The appeal 22 The Crown submitted that the manifest inadequacy in the respondents' sentences is a result of a number of errors. It was submitted that his Honour erred in his application of the guideline judgment in R v Henry (1999) 46 NSWLR 340. It was further submitted that his Honour erred by taking into account as a mitigating factor the fact that the respondents were on bail pending their trial and that they had been before the court on three other occasions. If not an error to have regard to this matter it was submitted that his Honour gave these factors too much weight. It was further submitted that he erred in subsequently double counting these factors when considering and making a finding of special circumstances. 23 The appellant submitted that the sentences which his Honour imposed undervalued the need for personal deterrence and placed undue emphasis on the rehabilitation of the respondents. It was submitted that his Honour erred by not placing any weight on the absence of remorse. 24 Finally, it was submitted that his Honour erred in finding that by reason of their ages the respondents would be isolated in prison which would make their custody more onerous. In the absence of evidence it was submitted that this finding was not open. 25 The appellant emphasised that each respondent was sentenced for a very serious offence where the maximum penalty was twenty years imprisonment.

Some findings of the sentencing judge 26 The sentencing judge accepted that "substantial punishment" is required for offenders who commit the type of offence involved in the present matters. His Honour accepted that when sentencing it was necessary to be mindful of the principle that ordinary citizens should be free to walk the streets without fear of physical violence. His Honour found that the assault was persistent and, when it was considered that it was for the purpose of consummating a robbery, was sustained for a greater period than is usually involved in this type of offence. His Honour found that each respondent was actively involved in the attack which made the offence more serious than if one or other had simply been involved by being ready willing and able to support the other. 27 His Honour found that the victim was "specifically targeted." His Honour said that: "[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." 28 His Honour did not find that Mr Ng was a vulnerable victim for the purposes of s 21A of the Crimes (Sentencing Procedure) Act 1999.

R v Henry 29 Although his Honour considered the guideline judgment in Henry and was mindful of the factors identified by the Chief Justice at [162] which may justify a fulltime sentence of imprisonment of between four and five years, his Honour departed from the indicated sentence. There are significant differences between the attributes of the characteristic offender and offence in Henry and the circumstances of the present respondents. The respondents were not young and were not carrying a weapon such as a knife. Mr Ng was not vulnerable in the sense identified in Henry. The present offences involved a limited degree of planning but significant actual violence rather than merely a threat of violence. Although no money was actually taken this was because the respondents were interrupted by neighbours who responded to Mr Ng's cries for help. The offender contemplated in Henry had the benefit of a plea of guilty. The present respondents denied their guilt and have shown no evidence of remorse. 30 To my mind the present offences were serious - at least as serious as those contemplated in the Henry guideline judgment. Although there was a clear need for the rehabilitation of the respondents this could not be permitted to displace the need for punishment and personal and general deterrence. Although each of them has some mental health issues and had some difficulties when growing up they had both managed to obtain stable employment and enter stable relationships. Although each had personal difficulties they had displayed a capacity to resolve them. These personal difficulties did not justify an amelioration of their sentences. 31 Although neither respondent was carrying a weapon they acted in company and were both physically involved in assaulting Mr Ng. Mr Ng suffered serious injuries, was clearly distraught and put in terror for his safety. The assault was persistent and the respondents only desisted when they were interrupted. They dragged Mr Ng from the landing and brought him down the stairs and continued to assault him in an endeavour to rob him when he had come to the footpath. He had been walking alone and was unable to successfully defend himself and resist the attack. 32 The sentencing judge said that he had taken into account the features of the present offences and offenders common to the guideline but said of the guideline that it "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)." The Crown submitted that by apparently confining the relevance of the guideline to completed offences his Honour's starting point for the sentences were impermissibly lenient and at odds with his earlier finding that the "[objective] criminality attaching to these offences is such that it does call for a substantial period of imprisonment." In my opinion this submission should be accepted. 33 The offences committed by the respondents involved a significant level of violence and together they were responsible for significant injuries to Mr Ng. Their attack subsisted for a period and was only terminated when they were interrupted by neighbours. The offence being committed in company a period of fulltime imprisonment was inevitable unless there were significant countervailing considerations. To my mind those considerations were not present in the personal circumstances of either offender. Their lack of remorse and continued denial of the offences required a sentence which not only provided adequate punishment but provided appropriately for specific deterrence.

Delay 34 Both respondents were on bail pending their trial. Rigorous reporting conditions were initially imposed but these were relaxed. By the time of the trial the respondents had each been on bail for approximately two years and had been required to attend court on three occasions. 35 His Honour said of these circumstances: "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 the purposes of trial on three prior occasions, are matters that can be taken into account as mitigating features." 36 The delay in the present matter was occasioned by the process of committal followed by problems with the initial trial. The respondents were committed for trial on 13 October 2006 and although their trial commenced on 19 February 2007 the jury had to be discharged. The next trial occurred on 12 June 2007 but was adjourned due to the unavailability of Crown witnesses. The jury could not agree at the trial which commenced on 10 September 2007. The matter was listed for further trial in December but was adjourned until January this year due to the unavailability of defence counsel. 37 I discussed the impact of delay in the sentencing process in R v Hathaway [2005] NSWCCA 368. The principles are well understood and I need not repeat them. In the present case it may be accepted that the uncertainty occasioned to the respondents may have imposed some hardship. However, neither respondent has demonstrated progress towards rehabilitation and it could not be said that their crimes were stale. In these circumstances if, as it would appear may have been the case, his Honour was of the view that the delay had resulted in an unfairness to the respondents this finding was not available: see R v Johnson (unreported, NSWCCA, 16 May 1997, per Priestley JA). 38 The sentencing judge allowed the conditions of the respondents' bail to influence the sentence which he imposed. His Honour believed that each respondent had initially been required to report to police daily and then subsequently two times weekly. This was not accurate but even if it was these conditions were not sufficiently onerous as to require any significant amelioration of the sentences. Curfews were not imposed and the respondents were not required to participate in any residential programs. 39 In fact Bolder's original bail conditions were that he was to be of good behaviour and not associate with Zaphir. These conditions were imposed on 25 February 2006 but his bail was revoked on 11 April 2006 when he committed further offences and was taken into custody. He was then released with more restrictive conditions, as a result no doubt of the offences which he had allegedly committed whilst on bail. Although these conditions were more restrictive the fact that they were imposed did not justify amelioration of his sentence. 40 With respect to Zaphir, his bail conditions from the date of his arrest until the date of the verdict did not require reporting. He was merely to be of good behaviour and not associate with Bolder. More significant conditions were imposed following the verdict and before sentence but these would not justify any amelioration of his sentence.

Double-counting 41 His Honour had regard to delay and the bail conditions in relation to the penalty which he believed appropriate to be imposed. He had further regard to these matters when finding special circumstances. His Honour said: "It is to remember [sic] 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." 42 There was an apparent double counting which was plainly inappropriate: R v Fidow [2004] NSWCCA 172.

Personal deterrence and rehabilitation 43 I have already indicated that there was no evidence of remorse in either respondent. His Honour determined that by reason of the prolonged nature of the proceedings no further element for personal deterrence was required to be incorporated into the sentence. This finding was not open. The respondents gave no indication that they accepted responsibility for their offending and although the proceedings had taken greater than the usual length of time there was nothing to suggest that they had confronted and resolved their inclinations to commit serious crime. Neither respondent gave evidence during the sentence proceedings making it difficult for his Honour to reach positive conclusions in relation to either respondent's prospect of rehabilitation. In many cases a submission that an offender has seen the error of his or her ways and wishes to start a new life is supported only by a report from the psychologist tendered on the offender's behalf. When the offender continues to maintain his or her innocence there are difficulties in accepting that although reported by the psychologist the determination to reform is genuine. When it is not supported by evidence from the offender those difficulties are compounded. 44 The obligation for a sentencing court to impose a sentence which recognises the need to provide for an offender's rehabilitation is undoubted. However, this must not have the consequence that the punishment actually imposed is inadequate to punish for the particular offence or offences and provide appropriately for deterrence. In the present case I accept that a finding of special circumstances was appropriate and that a sufficient period on release under supervision was required. However, his Honour said: "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." 45 My understanding of his Honour's remarks is that it was the identified need for rehabilitation which was the primary motivation for both the length of the sentence and his Honour's decision that it should be served by periodic detention. In my opinion by approaching the matter in this manner his Honour has allowed these considerations to displace an appropriate appreciation of the seriousness of the offence which required a period of fulltime custody.

Age 46 His Honour concluded that the age of each offender was well above the median of the prison population. He concluded that for that reason they may be more isolated in prison than younger men would be. His Honour concluded that would make their custody more arduous. 47 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 48 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. 49 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. 50 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:

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.

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. 51 HOEBEN J: I agree with McClellan CJ at CL and the orders which he proposes. 52 HARRISON J: I agree with McClellan CJ at CL. **********

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