Citation: R v Polyak [2020] NSWDC 429
Court: District Court of New South Wales
Date: 7 August 2020
Judge(s): Whitford SC DCJ
Background
The offender, a 25-year-old Aboriginal man, appeared for sentence following a jury trial that concluded in March 2020 and guilty pleas entered at arraignment. He faced 19 offences in total, committed across several weeks in late 2017. The offences were predominantly robberies in company and break-and-enter offences targeting commercial premises, together with a charge of being carried in a conveyance and two counts of dishonestly obtaining property by deception.
The offender had been in continuous custody since his arrest on 30 December 2017. At the time of the offending, he was on parole for an earlier assault with intent to rob, and was also on bail in relation to that matter when one of the present offences was committed. His parole was subsequently revoked as a result of the current offending.
The offender was co-accused with a man named Hooper, who was older and had significantly more criminal experience. His Honour noted that, as a matter of human experience, the offender was more likely than not acting under the direction or guidance of the co-offender during the shared offences.
Legal Issues
- How should the court assess the objective seriousness of multiple robberies in company and break-and-enter offences committed over a short period?
- What weight should be given to a background of profound deprivation, including childhood trauma and early introduction to drugs, in mitigation of sentence?
- How do the principles from Bugmy, Fernando, and Henry apply where an offender is Indigenous and has experienced severe developmental disadvantage?
- How should totality, accumulation of pre-sentence custody, and the COVID-19 custodial environment be factored into an aggregate sentence?
Decision
His Honour assessed the robberies in company as objectively below the mid-range of seriousness. Victims were present during each robbery and were inevitably vulnerable, and the weapons carried, though not firearms, were serious in nature. No actual violence was inflicted beyond the implicit threat of the weapons. The break-and-enter offences were predominantly committed at unoccupied commercial premises in the early hours, involved only minor property damage, and netted relatively small amounts of money. Planning across all offences was minimal and unsophisticated.
The offender's background was described as presenting a history of developmental deprivation that was "nothing short of appalling," marked by childhood grief, loss, and significant trauma, with little meaningful support throughout his life. His Honour found that this background attracted the full range of mitigating considerations recognised in Bugmy and Fernando, including a reduction in moral culpability. His early introduction to illicit drugs was noted as a significant feature, consistent with the principles in Henry regarding substance abuse in young offenders from disadvantaged backgrounds.
His Honour made an observation, beyond the strictly necessary sentencing analysis, that the case illustrated a broader societal failure to adequately support Indigenous Australians. The offender's escalating contact with the criminal justice system from before the age of 15 was characterised as an almost inevitable consequence of institutional failures to respond adequately to the disadvantage and intergenerational trauma experienced by Indigenous communities.
Conditions in custody during the COVID-19 pandemic, particularly the suspension of in-person family visits, were identified as having imposed a particularly harsh burden on the offender, who was already struggling to maintain family and community connections. Totality required that the aggregate sentence be backdated into the period of parole revocation following the December 2017 arrest.
Orders Made
- All 19 offences: the offender was convicted.
- Offences of being carried in a conveyance and obtaining property by deception (two counts): section 10A of the Crimes (Sentencing Procedure) Act applied; conviction recorded with no further penalty.
- Remaining offences (counts 1, 2, 5 to 15 inclusive, 17, 18 and 19): aggregate sentence imposed.
- Indicative individual sentences ranged from 12 months imprisonment (count 17) to 4 years imprisonment (count 2), with specified non-parole periods for certain counts.
- Aggregate sentence: 10 years imprisonment with a non-parole period of 5 years, commencing 1 July 2018.
- Earliest eligible parole release date: 30 June 2023.
Key Takeaways
- The District Court confirmed that a background of profound deprivation, childhood trauma, and early drug exposure can attract the full range of mitigating considerations recognised in Bugmy and Fernando, including a meaningful reduction in moral culpability, even where the offending is objectively serious.
- Where an offender from a severely disadvantaged background is introduced to illicit drugs at a young age, the court's assessment of substance abuse as a mitigating factor is informed by the approach set out by the then Chief Judge at Common Law in R v Henry.
- Aggregate sentencing across multiple related offences requires close attention to totality, including the backdating of sentences to account for pre-sentence custody and revoked parole periods that are directly connected to the offending.
- Harsh custodial conditions arising from the COVID-19 pandemic, particularly restrictions on family visits, were treated as a relevant and aggravating feature of the time already spent in custody for the purposes of the sentencing exercise.
- A co-offender's greater age and criminal experience may, as a matter of human experience, support an inference that a younger and less experienced offender was acting under direction, bearing on relative culpability even where both parties were equally active in the commission of individual offences.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 97(1), 112(2), 113(2), 154A(1)(b), 192E(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
Cases
- Bugmy v The Queen [2013] HCA 27
- R v Fernando (1992) 76 A Crim R 58
- R v Henry (1999) NSWLR 346
- R v MAK (2006) 167 A Crim R 159
- R v Ponfield [1999] NSWCCA 435