R v Hoyn

[2020] NSWDC 834

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Hoyn [2020] NSWDC 834

Hearing dates:

2 October 2020

Decision date:

02 October 2020

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentence Misconduct by a holder of public office; Counts 3 & 4: Community Corrections Order. For orders see [43]

Counts 5 & 6: Full time custodial order to be served by way of an intensive correctional order. For orders see [44]

Catchwords:

CRIME – Misconduct by a holder of public office - serving police officer

SENTENCING - Relevant factors on sentence – conviction after trial - common law offence- jury found crimes deserving of criminal punishment – fact finding- reckless behaviour by serving police officer- four counts - factors relating to objective seriousness– penalty at large - corresponding statutory offence considered – other cases considered- work induced Post Traumatic Stress Disorder – media reports of offending not unfair and not extra curial punishment

Legislation Cited:

CrimesAct 1900

Crimes (Sentencing Procedure) Act 1999

Police Act 1900

Cases Cited:

Blackstock v R [2013] NSWCCA 172

DPP v Del la Rosa [2010] NSWCCA 194

HughesvR [2014] NSWCC 15

JansenvR [2013] NSWCCA 301

Jaturawong v R [2011] NSWCCA 168

Obeid v R [2015] NSWCCA 309

Olbrichv The Queen (1999) 99 CLR 270

R v Farrell (unreported) District Court of NSW, 13 February 2013

Rv Hokin, Burton & Peisely (1922) 22 SR (NSW) 280

R v Obeid (No 12) [2016] NSWSC 1815

R v Obeid (No 2) [2015] NSWSC 1380

RvPurcell [2010] NSWDC 98

R v Verdins (2007)16 VR 269; [2007] VSCA 102

TheQueenvPham [2015] HCA 39; (2015) 256 CLR 550

Category:

Sentence

Parties:

Dennis Hoyn (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr N Moir (for the offender)
Ms J Hopper (for Director of Public Prosecutions)

Solicitors:
Cardillo Gray Partners (for the offender)
Director of Public Prosecutions

File Number(s):

2018/00375213

Publication restriction:

There is to be no publication of any information that might identify the operational pseudonym or the identity of the undercover police officer.

sentence – ex tempore revised

1. On 21 July 2020, after a six day trial, Dennis Hoyn was found guilty by a jury of four counts of the common Law offence of misconduct in public office. The offence relates to his breach of his duties during his service as a police officer. The jury accepted beyond reasonable doubt that he, without reasonable cause or justification, used that office to improperly access personal information on the police information systems and provided details about that personal information to others.

2. Six counts were put before the jury; they acquitted him of two. Based on the evidence at trial, much of which was not in dispute, it seems evident that for those two counts the jury accepted that while Hoyn had accessed and given out personal information without reasonable excuse or justification this action did not merit criminal punishment. Hoyn is to have the full benefit of those acquittals.

3. The two counts for which he was acquitted involved providing information to a friend, who was giving him information about drivers and cars said to be involved traffic violations and giving another friend Roads & Maritime Services (RMS) sale transaction details for a car he was interested in. Those facts have relevance here only to enable me to distinguish those acts which members of the jury held merited criminal punishment from those that did not.

Fact finding

4. I proceed to sentence on the basis that it was proved beyond reasonable doubt at trial that there was no reasonable excuse or justification for what Hoyn did and that his acts were wilful. The jury, as they were directed and found, determined that his conduct was so serious it merited criminal punishment. I now have to determine what that criminal punishment should be.

5. I am obliged to make my own assessment of the evidence, consistent with the jury verdicts, as part of my overall synthesis of relevant factors. As the High Court made clear in Olbrich v The Queen (1999) 99 CLR 270, matters in mitigation must be established on balance of probabilities, matters in aggravation must be established beyond reasonable doubt. The High Court also recognised that sometimes a sentencing judge must sentence according to what is known or agreed. The Court there made the point, at [24], that a judge who is not satisfied of some matter urged in plea on behalf of the offender does not have to sentence the offender on the basis of that contention, unless the prosecution prove the contrary beyond reasonable doubt.

6. The four counts for sentence relate to:

Count 3: Hoyn’s finding and sending the address details of a person; said to be the enquirer’s mother.

Count 4: Hoyn’s finding and sending the address of a person; said to be the friend of the enquirer.

Count 5: Hoyn’s finding and sending personal details to the enquirer of a person of interest to the enquirer, including his registration details and texts in relation to police warnings about the person.

Count 6: Hoyn’s finding and sending the address of a person said to owe a large debt to the enquirer, Despotovski, who I sentenced earlier today.

7. Hoyn told the jury about his motivation for each offence. They were summarised in the defence submissions: MFI 2:

Count 3: He said he was helping a friend who had lost contact with his mother;

Count 4: He said he was helping a friend who was concerned about a mutual school friend’s wellbeing;

Count 5: He said he was helping another friend who had told him the person whose details were revealed was a bad driver and should be investigated;

Count 6: He said he felt sorry for Despotovski as the man he sought had defrauded him of money.

8. Those reasons were self‑serving and uncorroborated. A critical issue here is: should I accept them?

9. There is no evidence before me to indicate what was done was done for a specific reward. One enquirer promised Hoyn “a beer or 20”. Another, Despotovski, ‘covered’ bets made by the offender and paid for his drinks over a betting session at a local hotel. The offender arrived at the hotel with no money but left with $209 in cash.

10. There was evidence before the jury that the release of any information could prejudice police operations, particularly as details of the registration numbers of cars used by undercover operatives is kept on the systems accessed. Further, these breaches of procedure infringed the privacy rights of the person whose details were accessed and released.

11. Hoyn’s assertion that he acted at all times with propriety and within his duties as a police officer, was not accepted by the jury nor can it be accepted by me. Each access to the police computer system requires an acknowledgment that access to the system is only allowed for lawful purposes. All those accessing the system have displayed a notice spelling out that the system contains personal, confidential and sensitive information that “must NOT be disclosed to unauthorised persons and you are NOT authorised to access it for personal reasons”: Trial exhibit C - emphasis in original.

12. In general, any access should be accompanied by an explanation being entered into the question box “RFS” (Reasons For Access).

13. It is not suggested Hoyn was aware of any nefarious intent by the enquirers he helped, but he must have been aware of that possibility. And, on arrest, he soon became aware that one person who sought his assistance was a local drug dealer.

14. I remain neutral on the question of the offender’s motivation. Although the aggravating circumstance that he knew there was some nefarious purpose cannot be accepted beyond reasonable doubt, I have trouble accepting any explanation offered by Mr Hoyn, in the absence of corroboration. But that finding does not aggravate the objective seriousness of the offence. I proceed on the basis that he was reckless as to what might have been done by any of the enquirers with the information that he provided to them.

15. Here, the jury found Hoyn failed to meet the responsibilities of a police officer. The jury found Hoyn failed to keep to his oath as a police officer to serve the important public objects of the police force. Those objects, importantly here, include the prevention and detection of crime, the protection of persons from injury or death, and the protection of property from damage, whether arising from criminal acts or in any other way, and the provision of essential services in emergencies, and to keep and preserve the peace.

16. I accept that until he breached those obligations Hoyn was a dutiful police officer who prided himself on serving the important public objects of the Police Force. I accept that as a Highway Patrol officer he had had proper regard to his duty to protect persons from injury and death and that he carried out those duties diligently. In the course of those duties it is not in dispute, that he was exposed to the consequences of serious road accidents. He was often the first responder, or called to the scene of those accidents. And, what he experienced at those accident scenes has had a detrimental and lasting impact on him.

Objective seriousness

17. The essence of the offences for sentence concerns a breach of trust in the form of a deliberate or reckless breach of duty owed by a public official to the public. It is important to note for crimes such as this that there can be no control over the information once it is handed over.

18. The more senior the public official the greater the level of public trust in their position, and the more onerous the duty that is imposed: R v Obeid (No 2) [2016] NSWSC 1815 at [79]. Here, despite his years of service Hoyn was a relatively junior police officer.

19. Consideration of the following possible factors is important to any determination of the objective seriousness of the offence:

1. The nature of the duty that is owed and the extent of the breach of that duty.

2. Any planning involved.

3. The offender’s motivation.

4. Any direct loss occasioned.

5. The actual harm caused by releasing another’s personal information.

6. The potential risks of such unauthorised release.

7. The nature and the extent of the departure from those public objects.

8. Whether there was any profit or financial gain. Although this is not an element of the offence it is frequently an incident of it. Where it is, it is an aggravating circumstance.

9. It is notorious that doing a friend a favour can be an insidious form of corruption: Jansen v R [2013] NSWCCA 301 at [11].

20. Here, so far as counts 3 and 4 are concerned, Hoyn seems to have genuinely believed he was “helping out a mate” but he did so by revealing private information about others and without regard for what might be done with that information.

21. Count 5 was more serious, as in addition to revealing private information about others without any regard for what might be done with that information, the information contained police “alerts’ about the person the subject of the enquiry.

22. Count 6 is by far the most serious offence. It involved providing information to a “stranger.” A modest reward was received; although I am prepared to accept it was not expected. The “stranger” turned out to be a drug dealer and the information could have compromised an undercover operative. While I cannot find beyond reasonable doubt that Hoyn knew any of these facts his actions were criminally reckless, in that this possibility should have been foreseen by him.

23. The events occurred between July and December 2018. He was arrested in December 2018 and is no longer a member of the Police Force. It can be seen from my recitation of the nine factors that a number of them are not present in this case, putting this matter lower in the range of objective seriousness than others to which I will now refer.

Common law offences

24. Provisions of the Crimes (Sentencing Procedure) Act 1999 apply to common law offences: Obeid v R [2015] NSWCCA 309.

25. Wilful misconduct in public office is a common Law offence, there is no specified maximum penalty. In sentencing for common law offences the Courts often adopt an analogous or corresponding statutory offence as a “reference point” for the imposition of a penalty: R v Hokin, Burton and Peisely (1922) 22 SR (NSW) 280 at 291; Jaturawong v R [2011] NSWCCA 168 at [5]; Blackstock v R [2013] NSWCCA 172 at [8]. The adoption of the maximum penalty for a corresponding provision does not “fetter the discretion” to impose a sentence “which remains at large” and can be greater than that maximum: Blackstock at [11].

26. The relevant statutory analogue to the charge of misconduct in public office can be found in Pt 4A of the Crimes Act 1900. The maximum penalty for that offence is seven years imprisonment: R v Obeid (No 2) [2015] NSWSC 1380; R v Obeid (No 12) [2016] NSWSC 1815, Beech-Jones J at [60].

Other cases

27. The particular circumstances of a given offence, and a given offender, are individual and likely to vary. The consistent application or principle must always be considered. The guidance offered by appellate courts and other decisions is always welcome. There is no pattern here of past sentences which serve as a yardstick or a range - each case is individual: Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58 at [74]. “…sentencing is a discretionary judgment and that the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases.’’: The Queen v Pham [2015] HCA 39, (2015) 256 CLR 550, Bell and Gaegler JJ at [47].

28. I note from my review of other sentences imposed that it is more common than not that full time custodial sentences will be imposed for offences such as these committed by serving police officers. In Jansen and Obeid some other cases were conveniently summarised. I was taken to others in submissions.

29. In Jansen v R [2013] NSWCCA 301, a senior police officer was sentenced to four years six months imprisonment for a number of different offences. The most significant of which related to his accessing and disseminating sensitive information from police databases. Campbell J noted the breadth of circumstances that could give rise to the offence of wilful misconduct in public office, but that the available cohort of such cases were so small that they “are not capable of providing useful material that may establish a sentencing pattern”.

30. In R v Farrell (unreported) District Court of NSW, 13 February 2013, a long serving police officer entered a late plea of guilty, agreeing to provide police intelligence orally to a businessman who was a close personal friend who had been under police suspicion and lawful surveillance. The sentencing judge gave a small discount for the late plea, discounted the offender’s prior good character because of the nature of the offending but accepted he had a strong subjective case. Farrell was sentenced to a non‑parole period of 12 months with an additional term of 12 months.

31. In Hughes v R [2014] NSWCC 15, a police officer who knowingly associated with known criminals accessed a police database on a number of times and created false intelligence reports. She pleaded guilty to two counts of wilful misconduct in public office, and offences of giving false evidence to the Police Integrity Commission. For the first of the misconduct offences she received a fixed term of seven months imprisonment. For the second she received a total sentence of 18 months imprisonment with a non‑parole of nine months. Those two sentences were imposed despite evidence of significant mental health issues.

32. In R v Purcell [2010] NSWDC 98, the offender was a police superintendent who persistently and deliberately disobeyed a direction from a superior officer concerning what he could say to members of the press about sexual assaults in the local area. Judge Berman SC identified the relevant statutory analogue as an offence under s 201 of the Police Act 1900, which carried a maximum penalty of only a fine. He fined Superintendent Purcell $2,000.

Subjective case of this offender

33. Material was presented during the trial and the history now before me accords with the evidence at trial. It is clear from the Sentence Assessment Report, exhibit B, that the offender has no insight into his offending behaviour, claiming “95% of cops would be in the same position as me”. He asserts that there was no chance in the world he would have committed Count 6 had he known Despotovski was a drug dealer.

34. I have difficulty accepting those propositions, given the nature of the circumstances in which he met Despotovski. Nevertheless, as I held earlier I cannot find the contrary proved against him. Hoyn says he was just trying to help people, but to do so in breach of his sworn oath as a police officer hardly justifies his actions.

35. Hoyn is married. He lives with his partner and children in a mortgaged home in the local area. He has worked all his life. He is also dealing with a significant mental health problem resulting from his police service. I approach that matter with some judicial scepticism but I am prepared to accept, from all of the material before me, that he does suffer from work induced Post Traumatic Stress Disorder (PTSD) and that he is responding to treatment for that disorder.

36. It is not uncommon for police officers or others who suffer such a disorder to want to get back to work as soon as possible, and return to work well before they are properly capable of doing so. It appears on balance that that is the situation here. His mental decline appears to have predated his offending.

37. PTSD does not in any way excuse his offending, but it helps explain why he was not exercising full judgment and why he did, and still fails to, appreciate how serious the crimes were. His illness requires an element of compassion. There must be some recognition of the possibility that his condition results from his service to the community. It does, to a modest degree, reduce his moral culpability. It does mean that a sentence of imprisonment would be much harsher on him and thus operate to mitigate punishment: R v Verdins (2007)16 VR 269 [2007] VSCA 102; DPP v Del la Rosa [2010] NSWCCA 194.

38. I have received a psychiatric report from Dr Burtucen. The focus of the report was on Hoyn’s medical condition. The history set out was uncontroversial. Dr Burtucen ultimately concludes that Hoyn’s offences were on balance likely to have been influenced by the features of his psychiatric condition. I am prepared to accept that that conclusion but I cannot measure its impact. Frankly, Hoyn’s PTSD is the only thing that helps me understand why he has failed to come to grips with the serious criminality of what he did. To that extent the diagnosis has greater importance than it would as an explanation or excuse for his breach of his obligations as a police officer. The memo that popped up every time he accessed the police computer system belies his self‑belief that he was; doing the right thing, doing his job, and keeping to his oath.

39. A submission was made that I could take into account the punishment meted out by others, and particularly “unfair and sensationalised media reports” and the fact that he had lost his job. I have read the media reports - they are fair and accurate. They contain no disparagement. Hoyn is a “disgraced cop!” That disgrace is the best he could expect. He deserves to lose his job as he is facing a custodial sentence; in fact he will be receiving a custodial sentence. The police have a duty to the public and when they breach that duty they go from a position of respect to one where they are not deserving of respect.

40. Hoyn’s continued adherence to his relatively innocent explanation for his conduct, his failure to acknowledge any, let alone the extent of his criminality, is relevant to my assessment of issues relating to remorse or contrition. There is none. And, he cannot get the benefit of those matters. But he is not to be punished for going to trial. His refusal to accept responsibility for his crimes goes to his prospects of rehabilitation. Sometimes positive self‑belief can ensure that someone who thinks they are not a criminal never offends again, but it also makes it difficult for them to distinguish between what is right and what is wrong. It has to be brought home to Mr Hoyn that what he did was wrong and had the potential to cause considerable harm.

Submissions

41. I have received both oral and written submissions from both counsel. I hope that this judgment does justice to them. There are a number of mitigating factors here, but ultimately the high level of trust in a serving police officer held by the public must be maintained, and where a police officer exploits their responsibility that exploitation should, as Madam Crown submits, be denounced.

Synthesis

42. Synthesising all those matters, a sentence of imprisonment is clearly justified for counts 5 and 6 but they can be moderated. I have considered issues in relation to community protection. Hoyn will never be in a position to offend like this again, and he has never offended like this in the past. Past behaviour is a good measure of future behaviour. It appears this offending occurred over a relatively short period of time when he was subject to a recognised mental condition brought about by his service as a police officer. That requires, as I have said, a measure of understanding, compassion and here, leniency.

Orders

Counts 3 and 4

43. In relation to counts 3 and 4 you are convicted. Pursuant to section 8(1) of the Crimes (Sentencing Procedure) Act 1999, instead of imposing a sentence of imprisonment, you are ordered to comply with a Community Correction Order. The term of the order is 2 years from today. You are to come for sentence if you breach the conditions of those orders. The following additional conditions apply:

1. The standard conditions of the order apply; You must not commit any offence and you must appear before the court if called on to do so at any time during the term of the order.

1. The offender is subject to supervision by a Community Corrections Officer at Wollongong Community Corrections District Office for the period of the Community Correction Order.

2. You must engage in programs as directed by Community Corrections.

3. You must report to the Community Corrections Office at Wollongong as soon as practicable but no later than 7 days from 2 October 2020.

Counts 5 and 6

44. In relation to counts 5 and 6 you are convicted.

45. In relation to count 5, I indicate a sentence of imprisonment of one month.

46. In relation to count 6, I indicate a sentence of imprisonment of 12 months.

47. You are sentenced to an aggregate term of imprisonment to be served by way of intensive correction in the community in accord with the Crimes (Administration of Sentence) Act 1999 for a period of 1 year 1 month. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence imposed on you is to be served by way of an Intensive Correction Order. The sentence will commence on 2 October 2020.

48. The standard conditions of the order apply: You must not commit any offence. You must submit to supervision by a Community Corrections Officer. The following additional conditions apply:

1. A community service work condition requiring the performance of community service work for 100 hours.

2. Accept the directions of Community Corrections particularly in relation to continuing mental health treatment.

3. You must report to the Community Corrections Office at Wollongong as soon as practicable but no later than 7 days from 02/10/2020.

49. The related offences are withdrawn and dismissed.

**********

Amendments

08 February 2021 - Typographical error on cover sheet only

Decision last updated: 08 February 2021