Citation: R v Bolder, Dean and Zaphir, Alexander Aristotle [2008] NSWDC 121
Court: District Court of New South Wales
Date: 18 April 2008
Judge(s): Nicholson SC DCJ
Background
Two co-offenders, both aged in their early forties and with minimal criminal histories, were convicted after a nine-day trial of assaulting a man in his sixties with intent to rob him. The assault occurred in a stairwell of a Housing Commission complex in Pyrmont in February 2006, where all three men had connections. The victim sustained a fractured nose and multiple blows and kicks from both offenders before neighbours intervened.
The attack was planned and coordinated. One offender signalled the other, who had concealed himself among the bins in the stairwell. One accused acted as the primary assailant, delivering a series of punches and kicks, while the other restrained the victim in a bear hug and searched his pockets for money. The word "money" was uttered during the assault. The wallet was not ultimately taken, though keys may have been dislodged.
Both men had presented defences at trial. One claimed he had confronted the victim about a prior theft and acted in self-defence; the other claimed to be an innocent bystander attempting to break up a fight. The jury rejected both accounts.
Legal Issues
- What was the objective seriousness of the offending, and how did it compare to similar offences?
- What subjective factors were relevant to each offender's sentence, including age, criminal history, and rehabilitation prospects?
- Whether full-time imprisonment was required, or whether periodic detention satisfied the sentencing purposes of retribution, punishment, and denunciation.
- Whether special circumstances existed justifying a variation to the standard ratio between the non-parole period and the balance of term.
- The proper treatment of victim impact statement evidence in the sentencing exercise.
Decision
The sentencing judge assessed the objective criminality as serious. The violence was substantial, administered by two offenders acting in concert against an elderly victim, and continued after the victim fell to the ground. The court drew on remarks by Gleeson CJ (as he then was) in an earlier Court of Criminal Appeal decision to the effect that offences of robbery and related violence represent direct attacks on personal security and the peace, warranting substantial punishment. The court noted, however, that the absence of serious lasting injury and the fact that the robbery was not completed were relevant moderating factors.
On the subjective side, both offenders were treated as having prior good character, given their minimal criminal records. The court considered their ages, rehabilitation prospects, and suitability for periodic detention. Each had been assessed as suitable and had signed the necessary undertaking.
The sentencing judge applied the principle, drawn from section 5(1) of the Crimes (Sentencing Procedure) Act, that full-time imprisonment is a sentence of last resort. The court held that while some form of incarceration was necessary to satisfy the requirements of retribution, punishment, and denunciation, periodic detention was an appropriate outcome in all the circumstances. The combination of prior good character, the offenders' ages, and the absence of serious injury to the victim supported that conclusion.
Special circumstances were found, resulting in a departure from the standard non-parole to balance-of-term ratio. The total sentence was set at 24 months, with a non-parole period of 15 months and a balance of term of nine months.
Orders Made
- Each offender convicted of assault with intent to rob in company, committed on 25 February 2006 at Pyrmont.
- Non-parole period of 15 months, commencing 18 April 2008 and expiring 17 July 2009.
- Balance of term of nine months, expiring 17 April 2010.
- Periodic detention order made directing each offender to serve the sentence by way of periodic detention.
- Each offender directed to enter custody immediately for the purpose of commencing the sentence and completing registration requirements.
Key Takeaways
- The District Court confirmed that offences of assault with intent to rob in company are serious breaches of the peace warranting substantial punishment, even where the robbery is not completed and serious lasting injury does not result.
- Under section 5(1) of the Crimes (Sentencing Procedure) Act, a sentencing court must treat full-time imprisonment as a sentence of last resort, considering all alternatives before imposing full-time incarceration. The court held that periodic detention can satisfy the requirements of retribution, punishment, and denunciation in appropriate cases.
- Prior good character, older age, suitability for periodic detention, and the absence of serious physical injury were all identified as factors capable of supporting a periodic detention order rather than full-time imprisonment, even for a violent co-offending scenario.
- Special circumstances were found on the facts, permitting the balance of term to exceed one third of the non-parole period. The court did not articulate a single determinative reason for this finding, treating it as arising from the combination of individual circumstances.
- A co-offender who restrains the victim and searches for property goes beyond the minimum threshold for acting "in company" (which requires only that the co-offender be present and ready to assist) and may be treated as the more probable primary robber in the circumstances.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5(1)
Cases:
- R v Gladue (1999) 1 SCR 688 (Supreme Court of Canada)
- R v Cuthbert (1967) 2 NSWR 329
- R v Rushby (1977) NSWLR 597
- R v Hayes [1984] 1 NSWLR 740
- R v Rause (unreported, NSWCCA, 8 August 1992)
- R v Henry (1999) 46 NSWLR 340 (NSW Court of Criminal Appeal)