Polley appeal denied

Darrell
Darrell Cole
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Five-year sentence for impaired driving upheld

AMHERST – A Pugwash Junction man has had his conviction for impaired driving upheld by the Nova Scotia Court of Appeal.

Stephen Daniel Polley was convicted last May and sentenced by provincial court Judge Paul Scovil to five years in prison in September for charges of impaired driving, dangerous driving and driving while disqualified.

He filed a notice of appeal in December and was released from custody pending the appeal hearing.

“As I see it, Judge Scovil’s factual findings as well as the inferences he drew from those facts are sound,” Justice Jamie W.S. Saunders said in his 13-page decision. “He properly applied the law to the evidence and issues before him. His analysis and conclusions are fully supported by the record. Mr. Polley’s appeal against conviction is without merit and should be dismissed.

“In terms of sentence there is nothing here which would cause be to question Judge Scovil’s exercise of discretion, impugn has analysis, or interfere with the sentence he imposed. Considering the circumstances of this offence and this offender, I think Judge Scovil’s reasoning and conclusions were entirely appropriate.”

Polley had appealed his conviction saying the verdict was “unreasonable and unsupported by the evidence,” and that Judge Scovil erred in admitting certain evidence and ignoring “or misapprehending” other evidence.

He also claimed the sentence to be excessive and should be reduced to closer to a maximum of three years.

Justice Saunders did not agree.

“After carefully considering the record and counsels’ submissions I am satisfied there is nothing here which would warrant our intervention,” Justice Saunders wrote. “I would dismiss Mr. Polley’s appeal from conviction. While would grant him leave to appeal sentence, I would dismiss the sentence appeal.”

Polley was charged following the May 29, 2010 crash near Oxford. During the trial, the judge was told Polley has a criminal record dating back to 1991 and that he had four previous convictions for impaired driving, three for refusing the breathalyzer and eight for driving while his licence was suspended.

Judge Scovil was told Polley and a friend spent the afternoon of the incident drinking alcohol after completing a construction job in Moncton. The pair headed home with Polley behind the wheel of his van.

Witnesses said Polley’s vehicle was pulling in and out of traffic at high speed and he eventually crashed his vehicle into a ditch on Highway 104 near Oxford after swerving in front of a tractor trailer and losing control. He was ejected from the vehicle while his passenger remained in the van. Neither man suffered severe injuries.

In his written decision, provided during sentencing, Scovil wrote it was a miracle no one was injured or killed, considering traffic on the highway at the time was “extremely busy, even for a 100-series highway.”

In the appeal, the defence said the judge failed to prove Polley was behind the wheel.

Justice Saunders said it’s not the trial judge’s responsibility to reconstruct the crash or explain the occupants’ kinesics during the crash with scientific certainty. Instead, he said, it’s the judge’s obligation to decide whether the Crown had proved all the essential elements of the offences charged, beyond a reasonable doubt.

“He did exactly that. He stated and applied the law correctly,” Saunders said in the written decision. He did not misconstrue or ignore material evidence. He made strong findings of fact. he drew reasonable inferences from those facts. He carefully reviewed the important evidence and provided clear and cogent reasons to explain the basis for his conclusions.”

darrell.cole@tc.tc

Twitter: @ADNdarrell

 

 

Organizations: Nova Scotia Court

Geographic location: Pugwash Junction, Oxford, Moncton

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