AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 25 September 2008

R v Bolder R v Zaphir

[2008] NSWCCA 222

Assault & violence
CRIMINAL LAW SENTENCING CROWN APPEAL MANIFEST INADEQUACY OF SENTENCES SENTENCED TO PERIODIC DETENTION

Citation: R v Bolder; R v Zaphir [2008] NSWCCA 222
Court: NSW Court of Criminal Appeal
Date: 25 September 2008
Judge(s): McClellan CJ at CL, Hoeben J, Harrison J

Background

The two respondents were convicted after a joint trial in the District Court of one count each of assault with intent to rob whilst in company, contrary to s 97(1) of the Crimes Act 1900. The offence carries a maximum penalty of 20 years imprisonment. The victim was a 63-year-old pensioner who was attacked in a coordinated ambush in a stairwell, punched repeatedly, thrown down a flight of stairs, and searched for money while lying on the footpath. He suffered a fractured nose, scalp lacerations, and multiple soft-tissue injuries. No property was ultimately taken.

The sentencing judge in the District Court imposed a non-parole period of 15 months with a balance of term of 9 months on each respondent, and directed that both sentences be served by way of periodic detention (a form of part-time custody). The Crown appealed, contending the sentences were manifestly inadequate both in length and in the direction for periodic detention.

  • Whether the sentences imposed were manifestly inadequate, both as to the length of the terms and as to the direction for periodic detention
  • Whether delay in the committal and trial process justified mitigation of the sentences
  • Whether the length and conditions of bail amounted to a separate mitigating factor
  • Whether the sentencing judge placed disproportionate weight on rehabilitation at the expense of personal deterrence
  • Whether the sentencing judge erred in treating the respondents' ages as a basis for finding that full-time imprisonment would cause particular hardship
  • Whether the offences were at least as serious as those contemplated by the guideline judgment in R v Henry (1999) 46 NSWLR 340

Decision

The Court of Criminal Appeal held unanimously that the sentences were manifestly inadequate and that intervention was required. McClellan CJ at CL (with Hoeben J and Harrison J agreeing) found that no circumstances relating to either respondent justified the degree of leniency shown by the sentencing judge. The offences were unprovoked, involved gratuitous and significant violence against an elderly victim, and were accompanied by no remorse and no satisfactory explanation from either offender.

The Court found that the sentencing judge erred in the weight given to several mitigating factors. While each respondent had faced personal difficulties, those circumstances did not justify ameliorating the sentences beyond what the objective seriousness of the offending required. The Court also found that the direction for periodic detention compounded the inadequacy of the head terms, relying on R v Douar (2005) 159 A Crim R 154 for the proposition that periodic detention carries a significantly lesser punitive weight than full-time custody.

The Court held that the present offences were at least as serious as those contemplated by the guideline judgment in R v Henry, which provides sentencing guidance for armed robbery and related offences. In those circumstances, a full-time custodial sentence was the only appropriate penalty. The Court imposed sentences of 4½ years imprisonment in total, comprising a non-parole period of 2½ years and a balance of term of 2 years, on each respondent.

Orders Made

Bolder:
- Appeal upheld
- Sentence imposed in the District Court quashed
- Respondent sentenced to full-time imprisonment: non-parole period of 2½ years commencing 16 May 2008 and expiring 15 November 2010, with a balance of term of 2 years expiring 15 November 2012; eligible for parole from 15 November 2010

Zaphir:
- Appeal upheld
- Sentence imposed in the District Court quashed
- Respondent sentenced to full-time imprisonment: non-parole period of 2½ years commencing 2 May 2008 and expiring 1 November 2010, with a balance of term of 2 years expiring 1 November 2012; eligible for parole from 1 November 2010

Key Takeaways

  • Periodic detention, as a sentencing option, carries materially lesser punitive weight than full-time custody, and its use can itself compound the inadequacy of an already insufficient head sentence: see R v Douar.
  • Where offending involves coordinated, unprovoked violence against a vulnerable victim, the absence of remorse and the absence of any satisfactory explanation for the conduct significantly limit the scope for personal circumstances to reduce an otherwise appropriate sentence.
  • The guideline judgment in R v Henry was applied as a benchmark; offences at least as serious as those contemplated by the guideline ordinarily call for sentences at or above the ranges it identifies.
  • A Crown appeal under s 5D of the Criminal Appeal Act 1912 remains a discretionary remedy, but the Court confirmed it will intervene where sentences are manifestly inadequate, regardless of the care taken by the sentencing judge in addressing subjective factors.
  • Delay in committal and trial proceedings, and time spent on bail, may be relevant to mitigation, but the Court found those factors did not justify the extent of the leniency shown in these cases.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

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