R v Bolder R v Zaphir [2008] NSWCCA 222

R v Bolder R v Zaphir [2008] NSWCCA 222

The Court held that the sentences were manifestly inadequate. The offences involved an unprovoked ambush by two offenders acting in company, persistent and significant violence against Mr Ng, an attempt to rob him, no remorse, and no personal circumstances sufficient to justify the leniency given. The sentencing judge wrongly treated the offences as less serious than the R v Henry guideline contemplated, gave unjustified weight to delay and bail conditions, double counted those matters in finding special circumstances, gave excessive weight to rehabilitation at the expense of punishment and deterrence, and relied on unsupported assumptions about the respondents' age making imprisonment...

Jurisdiction
Australia
Judgment Date
25 September 2008
Procedural Posture
Crown Appeal Against Sentence Pursuant to S 5 D of the Criminal Appeal Act 1912 / Appeal in the New South Wales Court of Criminal Appeal From Sentences Imposed in the District Court
Outcome
Appeals upheld; District Court sentences quashed; respondents resentenced to fulltime imprisonment.
Legal Topics
['crown Appeal Against Sentence' 'manifest Inadequacy' 'assault With Intent to Rob Whilst in Company' 'periodic Detention' 'delay' 'bail Conditions' 'rehabilitation' 'personal Deterrence' 'guideline Judgment']
['criminal Law' 'sentencing'] ['crown Appeal Against Sentence' 'manifest Inadequacy' 'assault With Intent to Rob Whilst in Company' 'periodic Detention' 'delay' 'bail Conditions' 'rehabilitation' 'personal Deterrence' 'guideline Judgment']

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Procedural Posture

Crown Appeal Against Sentence Pursuant to S 5 D of the Criminal Appeal Act 1912 / Appeal in the New South Wales Court of Criminal Appeal From Sentences Imposed in the District Court

Legal Issues

  1. 1 ['Whether the sentences imposed on the respondents were manifestly inadequate.' 'Whether the sentencing judge erred in applying the guideline judgment in R v Henry (1999) 46 NSWLR 340.' "Whether delay in the committal and trial process and the respondents' bail conditions justified mitigation of the sentences." 'Whether the sentencing judge impermissibly double counted delay and bail conditions when finding special circumstances.' 'Whether the sentencing judge undervalued personal deterrence and placed undue emphasis on rehabilitation.' "Whether the sentencing judge erred in treating the respondents' age as making custody more onerous."]

Ratio Decidendi

The Court held that the sentences were manifestly inadequate. The offences involved an unprovoked ambush by two offenders acting in company, persistent and significant violence against Mr Ng, an attempt to rob him, no remorse, and no personal circumstances sufficient to justify the leniency given. The sentencing judge wrongly treated the offences as less serious than the R v Henry guideline contemplated, gave unjustified weight to delay and bail conditions, double counted those matters in finding special circumstances, gave excessive weight to rehabilitation at the expense of punishment and deterrence, and relied on unsupported assumptions about the respondents' age making imprisonment...

Court Disposition

Appeals upheld; District Court sentences quashed; respondents resentenced to fulltime imprisonment.

Orders

  • ['In relation to Mr Bolder: Appeal upheld.' 'In relation to Mr Bolder: Quash the sentence imposed in the District Court.' 'In relation to Mr Bolder: 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...