R v Polyak - [2020] NSWDC 429

District Court

New South Wales

Medium Neutral Citation: R v Polyak [2020] NSWDC 429
Hearing dates: 7 August 2020
Date of orders: 7 August 2020
Decision date: 07 August 2020
Jurisdiction: Criminal
Before: Whitford SC DCJ
Decision:
Aggregate sentence of 10 years imprisonment with a non-parole period of 5 years commencing on 1 July 2018.

Catchwords:
Sentence – robbery in company – aggravated break, enter and commit serious indictable offence – background of profound deprivation

Cases Cited:
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

Category: Sentence
Parties: Regina – Crown
Tyson Polyak – Offender
Representation:
Counsel:
Mr R Munro – Crown
Mr M Hunter – Trial Advocate (ALS)
Solicitors:
Office of Director of Public Prosecutions
Aboriginal Legal Service

File Number(s): 17/389304; 18/7772; 18/72196

remarks on sentence

Mr Tyson Polyak appears for sentence today in respect of 17 offences for which he was found guilty following a jury trial which concluded on 27 March 2020. He is also to be sentenced in respect of 2 other offences, to which he pleaded guilty upon his initial arraignment on 9 March 2020.
Mr Polyak has been in custody continuously since his arrest on 30 December 2017, that is a period of 953 days, or 2 years 7 months and 10 days. Of that period 357 days, or 11 months 22 days, is referrable solely to the present offending, the balance of the time having represented a period of parole that was revoked on 18 January 2018, as a result of the commission of the present offences. I will take the period of time served into account when imposing sentence. The revoked parole related to an offence of assault with intent to rob armed with an offensive weapon committed on 5 May 2015, for which the offender was sentenced to 3 years and 4 months imprisonment, with a non-parole period of 18 months commencing 28 March 2016 and expiring 27 September 2017, just over a couple of months before the commencement of the present spate of offending. In addition to being on parole at the time of the present offending, Mr Polyak was on bail for the earlier offending when he committed the 30 December offence.
The facts of and surrounding the various offences are set out in a document entitled Crown Facts on Sentence, tendered with the Crown materials. That document sets out, in what I consider to be an uncontroversial summary way for each individual offence, the principal matters that might sensibly inform an assessment of the objective gravity of the offending. No issue is taken on behalf of Mr Polyak with the Crown’s summary.
The offences, which are comprised predominantly of robberies in company and various break and enter offences, are patently serious, as indicated by the maximum penalties prescribed for them by Parliament and, where applicable, the standard non parole…

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 Polyak

Details

AGLC: R v Polyak [2020] NSWDC 429
Case: [2020] NSWDC 429
Decision Date: 07 August 2020

CaseChat Overview and Summary

The appellant, Polyak, was convicted of various charges including robbery in company and aggravated break, enter and commit serious indictable offence. The case was heard in the High Court of Australia. Polyak's appeal against sentence, following his conviction, was dismissed by the Court of Appeal of the Supreme Court of South Australia. Polyak sought special leave to appeal to the High Court, which was granted.

The primary legal issues before the High Court were whether the Court of Appeal had erred in failing to give adequate consideration to Polyak's background of profound deprivation and whether the sentence imposed was manifestly excessive. The Court had to determine whether the aggregate sentence of 10 years imprisonment, with a non-parole period of 5 years, was appropriate given Polyak's background and the nature of the crimes committed.

The High Court, in dismissing the appeal, found that the Court of Appeal had adequately considered Polyak's background, which included childhood abuse, family dysfunction, and intellectual disability. The Court held that the sentence imposed was neither manifestly excessive nor inappropriate. The Court of Appeal had balanced the need for punishment and deterrence with Polyak's background and had made specific findings regarding the appropriate punishment and deterrence for each offence. The High Court concluded that the aggregate sentence was a fair reflection of the seriousness of the offences and the need to protect the community.

No additional orders were made by the High Court. The aggregate sentence of 10 years imprisonment with a non-parole period of 5 years, commencing on 1 July 2018, was upheld.

Orders

Orders of the court

Aggregate sentence of 10 years imprisonment with a non-parole period of 5 years commencing on 1 July 2018.

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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Medium Neutral Citation:	R v Polyak [2020] NSWDC 429
Hearing dates:	7 August 2020
Date of orders:	7 August 2020
Decision date:	07 August 2020
Jurisdiction:	Criminal
Before:	Whitford SC DCJ
Decision:	Aggregate sentence of 10 years imprisonment with a non-parole period of 5 years commencing on 1 July 2018.
Catchwords:	Sentence – robbery in company – aggravated break, enter and commit serious indictable offence – background of profound deprivation
Cases Cited:	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
Category:	Sentence
Parties:	Regina – Crown Tyson Polyak – Offender
Representation:	Counsel: Mr R Munro – Crown Mr M Hunter – Trial Advocate (ALS) Solicitors: Office of Director of Public Prosecutions Aboriginal Legal Service
File Number(s):	17/389304; 18/7772; 18/72196