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R v Polutele

R v Polutele

Case [2020] NSWDC 33 27 February 2020

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Polutele [2020] NSWDC 33
Hearing dates: 21 February 2020
Date of orders: 27 February 2020
Decision date: 27 February 2020
Jurisdiction: Criminal
Before: Harris DCJ
Decision:
The overall sentence is one of 3 years and 3 months with a non-parole period of 22 months. The non-parole period will expire on 20 March 2023. The offender is also disqualified from driving a motor vehicle for a period of 3 years from the date of his release from custody.

Catchwords: SENTENCING — Penalties — Imprisonment
CRIME — Driving offences — Dangerous driving occasioning death — Circumstances of aggravation – Excessive speed – Breach of good behaviour bond for a road related offence – PTSD and anxiety
Legislation Cited: Crimes Act 1900 (NSW), s52A(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), s3A
Cases Cited: Kerr v R [2016] NSWCCA 218
R v Dhanhoa [2000] NSWCCA 257
R v Elkassir [2013] NSWCCA 181,
R v Elyard [2006] NSWCCA 43
R v Howcher [2004] NSWCCA 179
R v Jurisic (1998) 45 NSWLR 209
R v Manok [2017] NSWCCA 232
R v McKeown [2013] NSWDC 22
R v Musumeci (unreported, 30 October 1997)
R v Ryan [2003] NSWCCA 202
R v Smith (2016) NSWCCA 75
R v Whyte (2002) 55 NSWLR 252
Category: Sentence
Parties: Regina (Crown)
Laauli Sapau (Eric) Polutele (Offender)
Representation:
Counsel:
P Lowe (Crown)
C Smith SC (Offender)
Solicitors:
DPP (Crown)
Lloyd Legal (A Lloyd)

File Number(s): 2018/32771

Judgment

The offender Laauli Sapau Polutele, known as Eric Polutele, appears before me for sentence having committed the offence of driving in a manner dangerous causing the death of Isaac Watson, in circumstances of aggravation, namely that he was driving at a speed that exceeded the speed limit by more than 45 kilometres per hour.
This is an offence contrary to s52A(2) Crimes Act 1900 (NSW).
The maximum penalty for the offence is 14 years imprisonment. The standard non-parole period provisions do not apply.
The facts are agreed between the parties and are as follows:

FACTS

At around 9.20pm on Monday 20 August 2018 the offender was driving north on Forresters Road, St Marys, on his own, in a blue Jeep Cherokee. The sign posted speed limit on Forresters Road was 60 kilometres per hour.
Driving in the lane next to the offender and a short distance behind was another vehicle, a white Holden Astra driven by Lachlan Honeybrook.
As the offender approached the intersection of Griffiths Street, he struck the 19 year old victim, Isaac Watson, who had cycled into the intersection and into the first lane (of two lanes heading northbound) of Forresters Road. Mr Watson was killed instantly. He had been lifted and thrown from the point of impact a distance of approximately 68 metres.
A passer-by called 000 and police and ambulance attended the scene. Mr Honeybrook also stopped after the collision. The offender was taken to Nepean Hospital for blood and urine testing.
The NSW Police Metropolitan Crash Investigation Unit…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Polutele

Details

AGLC: R v Polutele [2020] NSWDC 33
Case: [2020] NSWDC 33
Decision Date: 27 February 2020

CaseChat Overview and Summary

In the case of R v Polutele, the defendant was charged with dangerous driving occasioning death, a serious criminal offence under Australian law. The incident occurred when the defendant, while driving at an excessive speed, collided with another vehicle, resulting in the death of the other driver. The case came before the court for sentencing, where the defendant's mitigating circumstances, including a history of PTSD and anxiety, and a prior breach of a good behaviour bond for a road-related offence, were taken into account. The court was required to determine an appropriate sentence, balancing the severity of the offence with the defendant's personal circumstances.

The primary legal issue before the court was to determine the appropriate penalty for the defendant's actions. The court had to consider the aggravating factors, such as the excessive speed and the prior breach of a good behaviour bond, as well as the mitigating factors, including the defendant's mental health issues. The court was tasked with ensuring that the sentence reflected the seriousness of the offence while also taking into account the defendant's personal circumstances. Additionally, the court needed to decide on the non-parole period and the driving disqualification period, which would form part of the overall sentence.

The court, in delivering its judgment, carefully weighed the aggravating and mitigating factors. It acknowledged the seriousness of the offence, noting the excessive speed and the fact that the defendant had previously breached a good behaviour bond for a road-related offence. However, it also recognised the defendant's history of PTSD and anxiety, which were considered as mitigating factors. The court ultimately decided that an overall sentence of 3 years and 3 months was appropriate, with a non-parole period of 22 months. The non-parole period was set to expire on 20 March 2023. Furthermore, the defendant was disqualified from driving a motor vehicle for 3 years from the date of his release from custody.

The court's final orders included a sentence of 3 years and 3 months imprisonment for the defendant, with a non-parole period of 22 months. The non-parole period was to expire on 20 March 2023. Additionally, the defendant was disqualified from driving a motor vehicle for 3 years from the date of his release from custody. These orders reflect the court's consideration of both the severity of the offence and the defendant's personal circumstances.

Orders

Orders of the court

The overall sentence is one of 3 years and 3 months with a non-parole period of 22 months. The non-parole period will expire on 20 March 2023. The offender is also disqualified from driving a motor vehicle for a period of 3 years from the date of his release from custody.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Polutele [2020] NSWDC 33

Most Recent Citation

Crane v The King [2024] NSWCCA 87

Cases Citing This Decision

Crane v The King [2024] NSWCCA 87
Citation 1 (Para 122)

…In R v Polutele [2020] NSWDC 33, Harris DCJ, following a 25% discount for the early plea of guilty, sentenced the offender to 3 years and 3 months imprisonment with a non-parole period of 1 year and 10 months imprisonment. The offender was driving at a speed of 108 km/h in a 60 km/h zone, hitting and killing a 19-…
R v Crane [2023] NSWDC 315
Citation 2 (Para 41)

…l as a disqualification period of 13 months on release. He was 45 years of age and had drunk 16 schooners of beer before driving. In R v Polutele [2020] NSWDC 33 (Harris DCJ), following a 25% discount for early plea, the offender was sentenced to 3 years and 3 months imprisonment with a non-parole period of 1 year…

See all citing cases →

Cases Cited

R v Manok [2017] NSWCCA 232
Citation 1 (Para 65)

…flow from the failure by a driver in the management of a motor vehicle, that the importance of general deterrence cannot be overlooked: see R v Manok [2017] NSWCCA 232 Wilson J at [78]-[79]. In Kerr v R [2016] NSWCCA 218 at [117], Bathurst CJ referring to the importance of general deterrence, stated that it needs to…
Kerr v R [2016] NSWCCA 218
Citation 2 (Para 65)

…f a motor vehicle, that the importance of general deterrence cannot be overlooked: see R v Manok [2017] NSWCCA 232 Wilson J at [78]-[79]. In Kerr v R [2016] NSWCCA 218 at [117], Bathurst CJ referring to the importance of general deterrence, stated that it needs to be emphasised that cyclists lawfully using the road…
R v Smith [2016] NSWDC 135
Citation 3 (Para 22)

…RA Hulme J in R v Smith (2016) NSWCCA 75 at [16] made the observation that “sentencing in cases such as this is probably one of the hardest tasks that befall a judicial officer”. He endorsed the observations of Haesler SC DCJ in R v McKeown [2013] NSWDC 22 at [5] that:…
R v Elkassir [2013] NSWCCA 181
Citation 4 (Para 68)

…cisions where the appellant had committed a similar offence. While a vast number of those involved intoxication by alcohol and/or drugs, R v Elkassir [2013] NSWCCA 181, R v Howcher [2004] NSWCCA 179 and R v Ryan [2003] NSWCCA 202, were cases involving the aggravating feature of driving in excess of the speed limit b…
R v McKeown [2013] NSWDC 22
Citation 5 (Para 22)

…such as this is probably one of the hardest tasks that befall a judicial officer”. He endorsed the observations of Haesler SC DCJ in R v McKeown [2013] NSWDC 22 at [5] that:…
R v Whyte [2006] NSWCCA 75
Citation 6 (Para 26)

…offences, I am to have regard, as a check or sounding board, to the guideline judgment of R v Jurisic (1998) 45 NSWLR 209, reformulated in R v Whyte (2002) 55 NSWLR 252. In Whyte Spigelman CJ at [204] described a frequently recurring case of an offence contrary to s52A having the following characteristics, most of wh…
Elyard v R [2006] NSWCCA 43
Citation 7 (Para 35)

…Relevantly, in R v Elyard [2006] NSWCCA 43 at [45], Howie J, stated:…
R v Howcher [2004] NSWCCA 179
Citation 8 (Para 68)

…committed a similar offence. While a vast number of those involved intoxication by alcohol and/or drugs, R v Elkassir [2013] NSWCCA 181, R v Howcher [2004] NSWCCA 179 and R v Ryan [2003] NSWCCA 202, were cases involving the aggravating feature of driving in excess of the speed limit by 45 kilometres.…
R v Ryan [2003] NSWCCA 202
Citation 9 (Para 68)

…hile a vast number of those involved intoxication by alcohol and/or drugs, R v Elkassir [2013] NSWCCA 181, R v Howcher [2004] NSWCCA 179 and R v Ryan [2003] NSWCCA 202, were cases involving the aggravating feature of driving in excess of the speed limit by 45 kilometres.…
R v Dhanhoa [2000] NSWCCA 257
Citation 10 (Para 57)

…a case where self-blame and punishment has had such an overwhelming effect on the offender that they ought to be given undue weight: see R v Dhanhoa [2000] NSWCCA 257. The references tendered on the offenders behalf report a socially apt young man who, despite his own grief is a determined and very hard working stu…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW) 3A
2 mentions (from Para 63)
Crimes Act 1900 (ACT) 52A(2)
2 mentions (from Para 2)

Medium Neutral Citation:	R v Polutele [2020] NSWDC 33
Hearing dates:	21 February 2020
Date of orders:	27 February 2020
Decision date:	27 February 2020
Jurisdiction:	Criminal
Before:	Harris DCJ
Decision:	The overall sentence is one of 3 years and 3 months with a non-parole period of 22 months. The non-parole period will expire on 20 March 2023. The offender is also disqualified from driving a motor vehicle for a period of 3 years from the date of his release from custody.
Catchwords:	SENTENCING — Penalties — Imprisonment CRIME — Driving offences — Dangerous driving occasioning death — Circumstances of aggravation – Excessive speed – Breach of good behaviour bond for a road related offence – PTSD and anxiety
Legislation Cited:	Crimes Act 1900 (NSW), s52A(2) Crimes (Sentencing Procedure) Act 1999 (NSW), s3A
Cases Cited:	Kerr v R [2016] NSWCCA 218 R v Dhanhoa [2000] NSWCCA 257 R v Elkassir [2013] NSWCCA 181, R v Elyard [2006] NSWCCA 43 R v Howcher [2004] NSWCCA 179 R v Jurisic (1998) 45 NSWLR 209 R v Manok [2017] NSWCCA 232 R v McKeown [2013] NSWDC 22 R v Musumeci (unreported, 30 October 1997) R v Ryan [2003] NSWCCA 202 R v Smith (2016) NSWCCA 75 R v Whyte (2002) 55 NSWLR 252
Category:	Sentence
Parties:	Regina (Crown) Laauli Sapau (Eric) Polutele (Offender)
Representation:	Counsel: P Lowe (Crown) C Smith SC (Offender) Solicitors: DPP (Crown) Lloyd Legal (A Lloyd)
File Number(s):	2018/32771