R v Polutele

[2020] NSWDC 33

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

1. 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.

2. This is an offence contrary to s52A(2) Crimes Act 1900 (NSW).

3. The maximum penalty for the offence is 14 years imprisonment. The standard non-parole period provisions do not apply.

4. The facts are agreed between the parties and are as follows:

FACTS

5. 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.

6. Driving in the lane next to the offender and a short distance behind was another vehicle, a white Holden Astra driven by Lachlan Honeybrook.

7. 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.

8. 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.

9. The NSW Police Metropolitan Crash Investigation Unit commenced a collision investigation.

10. During the investigation, police obtained CCTV footage from a nearby business which depicted a stretch of Forresters Road, lit by a street light directly above the intersection. It also depicted the impact of the offender’s vehicle with the victim. Police formed the view that the offender and Mr Honeybrook were driving in excess of the speed limit.

11. The CCTV footage was analysed through imbedded time stamps which progressed in 1 second intervals. The number of still images displayed in each 1 second progression was used as the ‘frame rate’.

12. An independent count of the frame rates, confirmed that the elapsed time displayed in an independent CCTV-viewing program, was consistent with the imbedded time stamps. The frame rate was calculated as being 25 frames per second.

13. The frame rate, reference points visible in CCTV footage, the vehicle length and other factors were used to calculate the speed of the offender’s vehicle immediately prior to the collision. A collision reconstruction expert and Crime Scene Officer, Gavin Lennon, provided the expert opinion that in the moments immediately prior to the collision, the offenders vehicle was travelling at 108 kilometres per hour, 48 kilometres over the speed limit. The estimated speed of Mr Honeybrook’s vehicle was 121 kilometres per hour, 62 kilometres over the speed limit.

14. An analysis of the throw distance (the distance of 58 metres where the victim’s bicycle came to rest and distance of 68 metres where the victim’s body came to rest) using the Computer Assisted Drawing Diagram and CCTV, allowed police to make a further prediction of the speed travelled by the offender immediately before the impact.

15. The speed calculated for the throw distance of 58 metres corresponded to a vehicle speed of over 105 kilometres per hour. The throw distance of 68 metres corresponded to a vehicle speed of over 110 kilometres per hour.

16. An analysis of the stopping distance of the vehicle travelling at excessive speed compared to the stopping distance of a vehicle travelling at the speed limit, concluded that due to the speed travelled by the offender, there was no possibility for him to react and stop in sufficient time to avoid the collision. There was no evidence that the offender had applied the brakes at any point prior to the collision.

17. Other investigations of the offender’s vehicle found no mechanical fault or defect which could have contributed to the collision.

18. The offender was interviewed by police on 25th October 2018, accompanied by his mother. He told police the following:

1. He was aware of the speed limit having driven on the road regularly and had considered himself as driving “normally” and at the speed limit up to the time of the collision;

2. He was getting ready to merge into the left lane to go to a petrol station before hitting the victim, not seeing who or what he had hit;

3. After being shown the CCTV footage, he maintained that he was driving normally;

4. He recalled a small white car behind him as he pulled up;

5. He was unaware of Mr Honeybrook’s vehicle being close to him and denied racing him immediately before the collision.

OBJECTIVE GRAVITY OF THE OFFENCE

19. While the offender did not give evidence and was therefore not subject to cross-examination, in a letter to the Court he stated that “there is no exact reason for my behaviour and I would try and offer an explanation for what I did, but there is no excuse…I am lost as to why I did what I did.”

20. To the Community Corrections Officer, Penelope Spence who prepared the Sentence Assessment Report tendered on sentence, the offender denied driving at the speed for which he is to be sentenced.

21. The law seeks to deter people from driving dangerously by the imposition of severe penalties upon those who offend. The grave risk that motor vehicles present to other road users when driven dangerously hardly needs to be stated. There is no doubt that general deterrence is of primary importance in considering the appropriate penalty for this offender.

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:

“In matters such as this Judges are asked to perform an impossible equation. No life can ever be equated with a period of imprisonment; no gaol term can return a loved one; and a life should never be measured simply by the punishment meted out to the offender.”

23. Nothing I do or say will return Mr Watson to his loved ones or alleviate the grief and feeling of loss of his mother Crystal Watson.

24. On Friday of last week Ms Watson read to the court her Victim Impact Statement. She most eloquently spoke of the emotional, psychological and physical impact upon her of the death of her son, something no mother ought have to endure. The Court acknowledges Ms Watson’s loss.

25. Turning to consideration of the objective gravity of the offence, the starting point of which is that Issac Watson lost his life.

26. In determining the objective seriousness of the 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 which are present in this case:

1. Young offender

2. Of good character with no or limited prior convictions

3. Death or permanent injury to a single person

4. The victim is a stranger

5. No or limited injury to the driver or the driver’s intimates

6. Genuine remorse

7. Plea of guilty of limited utilitarian value

27. Spigleman CJ went on to set out a list of aggravating factors established by the authorities as follows:

1. Extent and nature of the injuries inflicted

2. Number of people put at risk

3. Degree of speed

4. Degree of intoxication or of substance abuse

5. Erratic or aggressive driving

6. Competitive driving or showing off

7. Length of the journey during which others were exposed to risk

8. Ignoring of warnings

9. Escaping police pursuit

10. Degree of sleep deprivation

11. Failure to stop

28. The guideline applies where the offender’s moral culpability is high, and it was held that in those circumstances, a full-time custodial head sentence of less than three years would not generally be appropriate.

29. While relevant to the present case is (iii) the speed with which the offender was driving, this is of course the aggravating element relied upon to prove the offence and cannot be double counted.

30. It is a useful reminder that the guideline as expressed in Whyte is for offences contrary to s52A(1), not the aggravated offence contrary to s52A(2), for which the offender is to be sentenced. Whyte goes on to state that an appropriate increment to reflect the higher maximum penalty and what will generally be a higher level of moral culpability is required in the case of an aggravated offence contrary to s52A(2).

31. To that end, the aggravated offence requires proof of driving at more than 45 kilometres over the speed limit. There is no set upper limit. The offender was driving 48 kilometres over the speed limit; above the threshold to render him liable to the aggravated form of the offence, but not substantially so.

32. The Crown submitted that based upon the CCTV footage of the collision, I would also be satisfied beyond reasonable doubt that the offender was street racing and that I would find therefore that he was engaged in (vi), competitive driving.

33. The footage is from a single camera looking across Forresters Road towards the intersection with Griffiths Street. It is not in dispute that the offender’s car is depicted speeding along Forresters Road at the point of impact. Travelling behind the offender’s vehicle in the adjacent lane is the car of Mr Honeybrook. Mr Honeybrook is also travelling at excessive speed, about 13 kilometres faster than the offender. While it is arguable that the two men were competitively driving, it is not possible on this evidence alone to determine beyond reasonable doubt that the offender was racing Mr Honeybrook, particularly as the offender is ahead of the other car. To attribute a competitive state of mind to the offender, when the other car is behind him, to the standard of beyond reasonable doubt is simply not possible.

34. On the evidence before me, I am unable to divine why the offender was driving so fast. What matters then, is that he should not have been and there is no justification postulated as to why he was.

35. Relevantly, in R v Elyard [2006] NSWCCA 43 at [45], Howie J, stated:

It should also be borne in mind that when sentencing for offences of aggravated dangerous driving it will almost inevitably be the case that the offender will have “abandoned responsibility” as that expression is used in R v Jurisic (1998) 45 NSWLR 209 or will have displayed “high moral culpability” as that expression is used in R v Whyte (2002) 55 NSWLR 252. The fact that the aggravating element of the offence is present will generally be sufficient to show that the offender’s culpability has reached at least that degree. There is in my view simply no point in seeking to apply the guideline in Whyte in order to determine that question when the offence is an aggravated one by reason of the elements of the offence charged. There is a real risk that, in trying to apply the guideline judgment to decide that question, the court will double count an aggravating factor in the guideline which is an element of the aggravated offence. The judgment in Whyte recognises that the increased sentence for the aggravated offence will generally reflect the increased moral culpability inherent in the aggravated form of the offence.

36. It must be the case that the offender abandoned responsibility by driving at such a high speed for no apparent reason.

37. Having noted that, in determining the offender’s moral culpability arising from his abandonment of responsibility, I have taken into account that the length of the journey relied upon by the Crown was relatively short and that there are no additional aggravating factors referred to in Whyte such as the presence of alcohol or drugs or a failure to stop or acknowledge warnings. In that sense while his moral culpability is of a moderate level, it is somewhat less than it might otherwise have been.

38. In my assessment the objective gravity of the offence is below mid-range.

CRIMINAL HISTORY AND BREACH OF CONDITIONAL LIBERTY

39. The offender is now 26 years old. He was 24 at the date of the offence.

40. His traffic record reflects a five year driving history with a limited number of transgressions.

41. But for one matter on his criminal history, an offence of Assault Occasioning Actual Bodily Harm, he would be entitled to a positive finding of good character. Although it is to be noted that, in any event, good character and a clear record are not afforded the same weight for dangerous driving offences as they are for other offences for reason that they are frequently committed by people of good character.

42. On 11 October 2016, when he was 22 years old, the offender was involved in what can properly be described as an incident of road rage. The facts of that matter are before me. The offender took umbrage at another driver passing through a roundabout and when that driver stopped behind a parked car, the offender stopped next to him blocking him in behind the parked car. The offender approached the victim who remained in his car and punched him in the face four times.

43. He was sentenced on 8 May 2017 to a section 9 bond to be of good behaviour for a period of 18 months. That bond remained in force at the date that Mr Watson was killed. It expired on 7 November 2018.

44. Mr Smith SC submitted that as an offence of violence it was wholly unrelated to the present matter. I did not and do not agree. Both the previous offence and the offence for which I will sentence the offender involved alarming arrogance as a driver and a flagrant disregard of other road users whoever they may be. Any finding of good character is mitigated by not only the commission of the offence but his breach of the good behaviour bond that was subsequently imposed.

45. The offender does not otherwise have a criminal history and I have taken that into account in the general mix of subjective features.

PLEA OF GUILTY

46. The offender entered a plea of guilty in the Local Court and is entitled to a reduction in the sentence I impose for the full utilitarian value of the plea. I will allow a discount of 25%. To that end, the guideline judgment envisaged a late plea or a plea of limited utilitarian value.

SUBJECTIVE FEATURES

47. The subjective background of the offender can be gleaned from the defence tender bundle, in particular the report of Wendy Wright, registered psychologist dated 7 February 2020 and the Sentence Assessment Report. The offender has been treated by Ms Wright since 9 November 2018 when he was referred for counselling by his GP, Dr Patu having reported rumination, panic attacks, flashbacks and difficulty sleeping related to the commission of the offence. The offender's mother in a letter tendered to the Court reported that he had taken positive steps to seek help for his anxiety and depression.

48. The offender is of Samoan background and is the youngest of 10 children. He is particularly close to his mother. Up until the revocation of his bail last week, he resided with his mother and two of his sisters.

49. Since leaving school in year 10 he was employed in a number of different jobs including warehouse work, scaffolding and hospitality. He was unemployed at the time of the offence.

50. He has played an active role in the Assembly of God Church and acted as their Band Leader. A testimonial from the Pastor of the church, Mr Vaimasenuu describes him as a valued member of the church community, responsible, co-operative and caring. He also belonged to a theological or bible college, the academic advisor of which, Ms Samuelu-Lesa, described him in a similar way. The offender has engaged with the college’s free counselling service. He reported that he was both humiliated and ashamed at what he has done.

51. The offender has been prescribed an anti-depressant, Valdoxan, for approximately 2 years.

52. In clinical assessments of the offender since November 2018, he has scored in the ‘extremely severe’ category for depression, anxiety and stress.

53. Following his most recent assessment on 7 February 2020, Ms Wright favoured a diagnosis of Non-Melancholic Depression – a situational/reactive based depression, usually reflective of the interaction between personality style and stress.

54. He also demonstrated symptoms of a number of anxiety disorders, all of which surfaced following the death of Mr Watson.

55. Ms Wright is of the opinion that the offender’s symptomology is consistent with diagnoses of Major Depressive Disorder (Single Episode, Severe) and anxiety disorders including Social Anxiety Disorder, Generalised Anxiety Disorder, Obsessive Compulsive Disorder, Panic Disorder, Agoraphobia and PTSD.

56. Ms Wright recommended on-going psychological support and assistance to manage the offender’s mental health as well as benefit his decision making about the future. She noted that the offender’s familial support will also assist in that regard.

57. While no issue was taken with the diagnosis of Ms Wright, this does not appear to be 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 student at bible college, brings life and humour to the classroom, is pleasant cheerful and caring and is able to focus on his goals in every area of his life. He is reported by Ms Spence to lead a mostly pro-social life. That is not to say that his mental health is not relevant to how he will experience a term of imprisonment, it clearly is, and I will take it into account in the sentence I impose.

58. The offender has a number of physical ailments. Dr Patu in a letter addressed to the court listed his medical conditions as follows: morbid obesity, keratoconus of his right eye, which I understand is thinning of the cornea, with almost blindness, sleep apnoea requiring use of a machine at night, asthma, gouty arthritis and hearing loss in both ears. Dr Patu was of the opinion that his health, including his mental health, will cause significant hardship in a custodial setting. While there is little, if any, evidence of the extent of most of these ailments, I am similarly prepared to take those matters into account in the process of instinctive synthesis.

REMORSE

59. The offender in a letter tendered to the Court and by way of a statement made from the dock, the making of which was not opposed by the Crown, expressed remorse to the Watson family and to the Court for what he described as his terrible actions and the grief and despair he had caused. Ms Wright reported that in her sessions with the offender he has shown continued sorrow and regret for his conduct.

59. While his statements to Ms Spence denying driving at the speed calculated in the agreed facts, may suggest a lack of actual remorse, given the balance of the material, I have taken them to be a reflection of a level of immaturity coupled with an acceptance of the expert analysis of his driving as set out in the Agreed Facts. Having read and heard what he has to say, I do accept that his remorse, while not unusual in sentencing for this type of offence, is genuine.

PROSPECTS OF REHABILITATION

61. The offender was assessed by Community Corrections as a low risk of re-offending. He self-referred and completed the Traffic Offender’s Program, the certificate of completion being part of Exhibit 1. He sought help for his depression and anxiety and continues to see his psychologist to address his mental health issues. He has the support of his mother and sisters, and his church to which he is devoted. My hesitation in finding his prospects of rehabilitation to be excellent is founded in his commission of the previous road-related offence and disregard for the bond that was imposed by speeding so egregiously. In my view there is also a lack of insight inherent in his claim that he does not know why he was travelling at such a high speed.

62. On balance, I have taken the view, that his remorse, his motivation to address his mental health and continue with treatment and the pro-social support around him, permit a finding that his rehabilitation prospects are good.

SENTENCE

63. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires me to take into consideration important principles of sentencing including those of punishment, deterrence, protection of the community, rehabilitation, accountability, denunciation and recognition of harm done to the community.

64. In cases of dangerous driving causing death, general deterrence is usually given primacy over other considerations personal to the offender. In R v Musumeci (unreported, 30 October 1997), Hunt CJ at CL said:

“It is never easy to send a youthful person of good character to gaol but, where it is appropriate, it is something which must be done as a deterrent to others. The need for public deterrence will usually outweigh the fact that the particular offender has already learned his or her lesson. Also retribution remains an important purpose which the sentence must serve.”

65. It is because of the prevalence of the activity of driving and the terrible consequences that can 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 be emphasised that cyclists lawfully using the road are entitled to do so without the danger of a random act of dangerous driving.

66. Given that the only other matter on the offender’s criminal history also involved an attitude of contempt towards other road users, the sentence I impose must not overlook the importance of specific deterrence.

67. In my view, given all of the above, a sentence of full-time imprisonment must be imposed. It is not submitted otherwise.

68. While I was not provided with any authorities of comparative cases, I have had the opportunity to review a number of appellate decisions 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 by 45 kilometres.

69. I have considered each of those cases noting the salient features below:

70. In Ryan, after a successful appeal against the severity of a sentence, the appellant was sentenced to imprisonment for 6 years with a non-parole period of 4 years. This included a form one offence of failing to stop after the collision. The 23 year old appellant was observed by a number of witnesses driving in a 60km/h zone at about 140km/h over a distance of 3 kilometres. On reaching the crest of a moderate gradient he applied the brakes and skidded. He collided with the rear of a stationary vehicle killing the driver. The pre-braking speed was 135km/h. The car continued to skid into an intersection where it collided with another car, the occupants of which suffered minor injuries. The appellant alighted from the car and left the scene. He later fled the jurisdiction but returned voluntarily a number of years later. A 25% utilitarian discount was allowed. The facts in Ryan are considerably more serious than those before me.

71. In Howcher, an appeal against the severity of a sentence of 3½ years with a non-parole period of 2 years, was dismissed. The appellant was aged 20. He was driving his newly purchased modified car with increased maximum speed and acceleration capacity. After demonstrating its capabilities to his friends, he drove at a speed of 115 kilometres in a 60km/h zone, causing him to lose control, cross the road, hit a tree and split the car in half. He was on a good behaviour bond at the time. He had never held a driving licence. He received a 10% utilitarian discount.

72. In Elkassir, an appeal against the manifest inadequacy of a sentence of 3 years with a non-parole period of 12 months was dismissed. The sentence of 3 years was categorised as lenient but within range. The non-parole period was held to be manifestly inadequate however the Court exercised its residual discretion not to intervene. The appellant was 18 years old and had challenged another driver to a car race. That challenge was not accepted. The appellant followed the other car and at the crest of a hill, passed it at 110 km/h which was 50 kilometres over the speed limit. He lost control and collided with a bus shelter, sustaining severe injuries and killing his passenger. The CCA held that any element of competitive driving was marginal given that the appellant had sped off when his challenge to a race was turned down. He suffered PTSD, major depression and a form of on-going self-punishment after the collision. He had no previous criminal convictions and six traffic infringements. He received a 20% discount for the utilitarian value of his guilty plea.

73. The offender was taken into custody last Friday at the conclusion of the sentencing hearing and I propose to backdate the sentence to that date.

74. I will find special circumstances and adjust the statutory ratio of the non-parole period to the total sentence to 56.4%. I find special circumstances based upon the assistance that the offender will gain from both supervision and treatment of his depressive and anxietydisorders and taking into account his physical health and his first experience in custody as a young man.

75. Mr Polutele please stand.

76. You are convicted.

77. I sentence you to a period of imprisonment for three years and three months to date from 21 February 2020 and expire on 20 March 2023.

78. I impose a non-parole period of 22 months.

79. The earliest date that you will be eligible for release to parole is 20 December 2021.

80. You are disqualified from driving a motor vehicle for a period of 3 years from the date of your release from custody.

BREACH OF BOND

81. I have taken into account the offender’s breach of bond and undertaking to be of good behaviour in determining the appropriate sentence. I have decided there should be no action taken on the breach given the sentence that I have already announced.

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Decision last updated: 08 April 2020