R v Bolder, Dean and Zaphir, Alexander Aristotle [2008] NSWDC 121

New South Wales District Court

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

R v Gladue (1999) 1SCR 688 [80] R v Cuthbert (1967) 2 NSWR 329 CASES CITED: 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

Regina PARTIES: 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."