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 1. 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. 2. 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days, is referrable solely to the present offending, the balance of the time having represented a period of parole that was revoked on 18 January 2018, as a result of the commission of the present offences.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. 3. 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. 4. 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 periods prescribed. Several of the offences are far less serious in their character, by comparison to the majority. 5. There are 6 counts of robbery in company (s97(1) – counts 1, 2, 13, 14, 18 and 19). It is an offence that carries a maximum penalty of 20 years imprisonment. There are 8 counts of break and enter and commit larceny in company (s112(2) – counts 5, 6, 8, 9, 10, 11, 12 and 15). That offence carries a maximum penalty of 20 years imprisonment and a standard non parole period of 5 years has been prescribed. There are 2 counts of break and enter with intent to commit larceny in company (s113(2) – counts 7 and 17). That offence carries a maximum penalty of 14 years imprisonment. In addition, there is one count of being carried in a conveyance knowing it was taken without consent (s154A(1)(b) - count 3), which carries a maximum penalty of 5 years imprisonment. Finally, there are 2 counts of dishonestly obtaining property by deception (s192E(1)(a)), the two matters to which Mr Polyak pleaded guilty, which carry a maximum penalty of 10 years imprisonment. Mr Polyak should have a discount of 10% in respect of those offences, the plea having been entered at a relatively late stage. 6. The robberies in company and the various break and enter offences are thoroughly unremarkable examples of the particular offence types, particularly when considered against the considerations to be derived from the respective guideline judgments in Henry [R v Henry (1999) NSWLR 346] and Ponfield [R v Ponfield [1999] NSWCCA 435]. The various matters that might sensibly inform an assessment of the objective gravity of the offending in the individual cases is made patently clear from the short summary of each offence in the Crown Facts document. 7. For each of the robbery offences, there were people present in the relevant premises at the time of the offence, and they were inevitably vulnerable in the circumstances of their presence. The individual episodes must have been particularly terrifying for the victims of the respective robberies, particularly having regard to the weapons the offenders were carrying which, although obviously not firearms, were by their nature serious. There was no violence visited upon any of the victims beyond the implicit threat afforded by the presence of the weapons. These offences where people were present are, predominantly for that reason, among the more serious objectively of all the present offences, but in my assessment objectively below the mid-range within the extensive spectrum of conduct that might be caught by the particular offence provision. The break and enter offences are predominantly committed in unoccupied commercial premises in the early hours of the morning when no person was likely to be present. The break and enter offences generally had some relatively minor property damage associated with the entry. All the robbery and break and enter offences, where thefts occurred, involved theft of relatively small amounts of money. All of the offences had some limited, but thoroughly unsophisticated planning attaching to them. Judge Ellis' description, when sentencing the co-offender Hooper, of the planning being "pretty well generic to these type of offences" is apt, in my respectful view. Obviously, decisions were made, across the several weeks of the offending, about which premises or businesses to target. In addition, some weapon or implement to break in was frequently employed and there were in some cases an attempt, hardly sophisticated, at disguise. Whilst they were each equally active in the commission of the various offences in which they both participated, as a matter of human experience my impression is that in these offences it is more likely than not that this offender was under the direction or guidance, for want of a better description, of the older and significantly more criminally experienced co-offender Hooper. The offences were all of very short duration. 8. The carriage in vehicle and obtain property by deception are again unremarkable examples of those kinds of offences, particularly where they are associated, as here, in the way they are with the more serious offending. The car was recovered undamaged and in a relatively similar condition to what it was in before it was taken. The property associated with the deception offences was very modest and there was no sophistication in the offending. 9. Mr Polyak was born in 1995. He is now aged 25. He was 22 at the time of the offending. 10. He has a history of developmental and other deprivation that is nothing short of appalling. Little is served by reciting the detail of it here, but it is characterised by a history of childhood grief, loss and significant trauma. He has been, throughout his life, bereft of significant support. This has had a significant impact on his social and emotional development and wellbeing. The prominent features of the deprivation he suffered are set out at paragraph 32 of the written submissions provided on behalf of the offender, a copy of which has been marked for identification and placed with the file. It is recited in greater detail in the report of Ms Edwige, a psychologist who assessed Mr Polyak and provided a report tendered on his behalf on sentence. It was also outlined in the oral evidence of Mr Polyak's brother. 11. By its nature and extent, the deprivation of his background attracts the full panoply of mitigatory considerations enunciated in the authorities which deal with the enduring consequences of that sort of background [Bugmy v The Queen [2013] HCA 27 and R v Fernando (1992) 76 A Crim R 58]. Not least among those considerations is a diminution in moral culpability. The background, as is quite typical, includes an early introduction to illicit drugs and drug addiction. As Judge Ellis remarked in sentencing Hooper, one needs to be astute to the matters identified by the then Chief Judge at Common Law in Henry, when considering the mitigatory relevance of substance abuse for those who are introduced to it at a young age. 12. Mr Polyak has a relatively extensive criminal history, predominantly, but not solely, juvenile, and entirely consistent with what is tragically too frequently seen with someone who has been exposed to the dreadful developmental background this young man has. 13. It doesn't substantially advance the present exercise to make the observation, but it is noteworthy that this case is yet another tragic example of how as a community we have failed adequately to value and support indigenous Australians. There is evident in Mr Polyak's escalating engagement with the criminal justice system, which began before he turned 15, the almost inevitable consequence of institutional failures to grapple appropriately or adequately with policy responses to the dislocation, disadvantage and deprivation of indigenous communities and the intergenerational trauma to which they are exposed. His background and history also serve to exemplify the layers of complication that inevitably attend any attempt to redress the imbalance and achieve just and equitable outcomes for those who have endured disadvantage and trauma beyond the contemplation of most Australians. 14. A consequence of Mr Polyak's history is that he is beyond a mere risk of institutionalisation. He is at serious risk of spending the bulk of his adult life in prison, if no appropriate intervention and treatment can be achieved for the various issues that derive ultimately out of the deprivation of his background. He first entered adult custody less than 2 months after turning 18. In the time since, the longest period Mr Polyak has remained at liberty is a period of approximately 8 months. He was at liberty for just over two months prior to committing the first of the present offences. 15. What his experience reveals, like that of so many others in a similar position, is the manifest inadequacy of the legal system, as presently constituted, effectively to deal with what in their origin are problems of health and social welfare, and which should attract a far more appropriate response than early and repeated intersection with the criminal justice system. It can only be hoped that some recent initiatives, such as justice reinvestment, and some only presently proposed, like the Walama Court, might be capable of stemming this early diversion into a system ill-equipped and inadequately resourced properly to respond to the multitude of factors that need to be addressed in order to prevent entrenched disadvantage being inevitably converted into entrenched penal institutionalization, with the corresponding cycle of offending and incarceration to which that state of affairs persistently seems to give rise. In the meantime, one must address these issues by reference to the considerations that inform and underpin the individualised justice that is the exercise of the sentencing discretion. 16. Though one could not express definitively any positive outlook at the present time, one needs to factor in Mr Polyak's relative youth and the prospect, if indeed it can be put that high, but certainly the hope, that with time and some developing maturity and insight he might aspire to address his circumstances in a way that might see him re-enter the community at some stage with pro-social ambitions and with support appropriate to helping him achieve them. He has certainly given some positive indications in that respect to the psychologist who assessed him for the purposes of sentencing. He also enjoys some family support, which will be important in assisting his re-integration into the community. Indeed, his brother gave evidence on sentence which extended beyond describing the deprivations of their upbringing and included an outline of his discussions with the offender concerning his future hopes and plans and illustrated his preparedness to try and help his brother's reintegration in any possible way. 17. With all that in mind, within the limits of the various considerations which must be weighed, it seems to me that it is important to ensure that a sentence is not imposed that is so crushing that it might inevitably defeat any prospect of a rehabilitated future. In that regard, it is worth bearing in mind, as the submissions for the offender highlight, that the severity of a sentence is not simply the product of a linear relationship with its length in years. Particularly in one as young as Mr Polyak, the severity may increase at a greater rate than an increase in the length of the sentence [R v MAK (2006) 167 A Crim R 159]. 18. That observation highlights the critical role that considerations of totality play in the present exercise. In one sense the indicative sentences that must otherwise appropriately attach to each individual offence must compress so substantially as to become almost meaningless in the synthesis of an aggregate sentence, which I intend to impose, that is appropriate to all the circumstances of this episode of fairly related criminality during a period of three weeks or so and to all the circumstances of the offender. It is necessary, to the extent otherwise possible, to reflect the harm to individual victims, however the related episodic nature of this spate of robberies, together with the need to avoid a crushing sentence, calls for a substantial degree of concurrency to be reflected in the ultimate sentence imposed. For example, whilst all the offending occurred over a relatively short period, counts 6 to 14 in particular were committed on the same date, using the same motor vehicle. 19. Similarly, I think considerations of parity have only a limited role to play. There is a degree of similarity in the backgrounds of this offender and the co-offender, and in the consequences of those backgrounds, although it appears to be common ground that they are perhaps even more profound in the case of this offender. This offender is also substantially younger than the co-offender. The co-offender has a criminal history which exhibits an even greater settled criminal inclination and, if possible, even deeper institutionalisation. On the other hand, the co-offender did enter pleas of guilty and he attracted the leniency associated with the corresponding discount and had many of the offences dealt with on Forms 1. However, there was in his case no finding of remorse. Of course, the matters on those Forms 1 attaching to the various matters for which the co-offender was sentenced would have had the consequence of inflating, likely not insubstantially, the starting point before discount for individual offences, beyond what they otherwise would have been. The extent to which that is the case is not evident from his Honour's remarks. 20. In the present case Mr Polyak should have some favourable account for a degree of facilitation of the administration of justice, in that the issues at trial were confined in respect of each incident solely to identification, obviating the need for a significant number of witnesses to be called, and limiting the evidence of those who were called. The proceeding was accordingly dealt with far more expeditiously and economically than might otherwise have been the case. 21. The nature and the extent of the offending would ordinarily give necessary prominence to general deterrence and denunciation, although the former has less significance in the present exercise on account of the offender's background of deprivation. 22. Specific deterrence, however, remains an important consideration in all the circumstances. I have already noted that these offences were committed whilst Mr Polyak was on parole and, in the case of the final offence, also on bail. However, his relative youth, his background and its deprivations and the need for substantial intervention, which likely will never be adequately available to him in a custodial setting, all warrant a degree of leniency, which perhaps is best accommodated in a finding of special circumstances. 23. Mr Polyak will need intensive supervision and intervention over a long period upon his eventual release in order to address the multitude of issues that are at the core of his history of offending, including the present. Ms Edwige opined that Mr Polyak will require long term, ongoing drug rehabilitation and counselling to address his feelings of displacement, substance misuse, trauma, grief and loss. She also indicated that with intensive support he has the capacity to make positive changes in his life. 24. A lengthy period of parole will also serve as a concrete incentive to determined application by Mr Polyak to whatever needs to be done towards his effective rehabilitation. He knows full well the consequences of breaching parole. 25. Another consideration in favour of a finding of special circumstances is the hardship associated with the restrictions occasioned by the need to deal with the covid-19 pandemic in a custodial environment. Present indications suggest no likelihood of imminent relaxation of those measures. The impermissibility of family visits is, and has since its inception been, a particularly harsh imposition on a young man, particularly one struggling so profoundly to find connections with family and community. Indeed, so intense was Mr Polyak's response to the cessation of family visits that there was an early interruption to the trial and a day of hearing lost as a consequence. 26. Considerations of totality I think also demand that there be some backdating of the sentence to be imposed today into the period of parole being served following his arrest on 30 December 2017. 27. For all of the foregoing reasons, I make the following orders. 1. For all 19 matters before me for sentence today, the offender is convicted. 2. For the offences of being carried in a conveyance and the offences of obtain property by deception, in each case I dispose of the matter with no penalty other than conviction pursuant to s 10A of the Crimes (Sentencing Procedure) Act. 3. For the balance of the offences (counts 1, 2, 5-15 inclusive, 17, 18 and 19) I intend to impose an aggregate sentence. 1. The sentences that would have been imposed, in respect of the corresponding counts, had I not imposed an aggregate sentence are as follows: Offence Indicative Count 1 3 years 6 months imprisonment Count 2 4 years imprisonment Count 5 2 years imprisonment / 12 months non-parole period Count 6 2 years imprisonment / 12 months non-parole period Count 7 18 months imprisonment Count 8 2 years imprisonment / 12 months non-parole period Count 9 2 years 6 months imprisonment / 15 months non-parole period Count 10 2 years 6 months imprisonment / 15 months non-parole period Count 11 2 years 6 months imprisonment / 15 months non-parole period Count 12 2 years 6 months imprisonment / 15 months non-parole period Count 13 3 years 6 months imprisonment Count 14 3 years 6 months imprisonment Count 15 2 years 6 months imprisonment / 15 months non-parole period Count 17 12 months imprisonment Count 18 3 years 6 months imprisonment Count 19 3 years 6 months imprisonment The aggregate sentence I impose is 10 years imprisonment with a non-parole period of 5 years commencing on 1 July 2018. That is a total effective sentence of 10 years and on the information presently available to the Court the earliest date on which the offender will be eligible for release to parole is 30 June 2023. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 August 2020