R v Hyeraci

[2022] NSWDC 656

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Hyeraci [2022] NSWDC 656

Hearing dates:

15 December 2022

Decision date:

16 December 2022

Jurisdiction:

Criminal

Before:

Colefax SC DCJ

Decision:

Aggregate term of imprisonment of four years and six months with a non-parole period of two years

Catchwords:

CRIME - SENTENCE - Use carriage service to procure person under 16 years for sexual activity - possess/control child abuse material - use carriage service to transmit/distribute child pornography 

Legislation Cited:

Criminal Code Act 1995 (Cth), s 474.26(1), s 474.22A(1), and s 474.19(1);

Public Health Act 2010 (NSW), s 10;

Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A

Cases Cited:

Taylor v The Queen (1978) 22 ALR 599

Category:

Sentence

Parties:

Rex (Crown)

Mr Salvatore Hyeraci (Offender)

Representation:

Ms Detheridge (CDPP)
Mr Vasic (Counsel for the offender)

File Number(s):

2021/00209434

Publication restriction:

Nil

1. Salvatore Anthony Hyeraci, you appear for sentence today in relation to four principal offences.

2. The first principal offence is that, between 15 and 22 July 2021, you used a carriage service to procure a person under 16 years of age for sexual activity. This is sequence 4. It involves a contravention of s 474.26(1) of the Commonwealth Criminal Code. The maximum penalty for that offence is 15 years imprisonment.

3. The second principal offence is that, on 22 July 2021, you possessed or controlled child abuse material using a carriage service. This is sequence 13. It involves a contravention of s 474.22A(1) of the Commonwealth Criminal Code. The maximum penalty for that offence is also 15 years imprisonment.

4. The third principal offence is that, on 14 September 2013, you used a carriage service to transmit or distribute child pornography. This is sequence 17. It involves a contravention of s 474.19(1) of the Commonwealth Criminal Code. The maximum penalty for that offence is also 15 years imprisonment.

5. In relation to the principal offence which is sequence 4, you have asked the Court to take into account one matter on a s 16BA schedule, which I have certified. That matter is that, between 6 and 22 July 2021, you used a carriage service to transmit a communication to another person with the intent of making it easier to procure a child, whom you believed to be under 16, to engage in sexual activity with you. This is sequence 2.

6. In relation to the principal offence which is sequence 17, you have asked the Court to take into account a second matter on the s 16BA schedule and that is, on 14 September 2013, you used a carriage service to access child pornography. This is sequence 20.

7. The fourth principal offence for which you are to be sentenced is that, on 22 July 2021, you failed to comply with a notice/direction in connection with the COVID pandemic. This involves a contravention of s 10 of the Public Health Act 2010 (NSW). This is sequence 5. Ordinarily, that matter would be dealt in the Local Court, but you have consented to it being dealt with in this Court. The maximum penalty for the offence is six months imprisonment and/or a fine of 100 penalty units.

8. The facts surrounding all of the offending are contained in an agreed statement of facts, which was amended yesterday. I am going to recast those facts as to style but not substance.

9. I am going to start by quoting something from the expert’s report that was tendered on your behalf because it will put into context a lot of what I have to say this afternoon. You were interviewed by Dr Nielssen, a psychiatrist, and who prepared a report for the Court which was dated 1 December 2022. In that report, Dr Nielssen wrote that you firmly denied any sexual interest in prepubescent girls or adolescent females. Dr Nielssen did not dispute or qualify that statement by you.

10. It would seem that in 2011, your wife (with whom you had been married for very many years and with whom you had children) developed some serious health issues and that, as a consequence of her unfortunate health issues, intimacy between you and she ceased. Some two years after that, and specifically in September 2013, you engaged in online chats with a person who used the name “Lisa Smith”; and, on 14 September 2013, you sent to “Lisa Smith”, ten videos of child abuse material and one image of child abuse material. That is sequence 17. During that chat, you received from “Lisa Smith”, eight videos of child abuse material. That is sequence 20.

11. Annexure B to the (amended) statement of agreed facts described the contents of those videos. What is contained in annexure B is the depraved abuse of young children. It is difficult to understand, by reference to that material alone, how you could have said what you said to Dr Nielssen in December 2022 or how Dr Nielssen could appear to have accepted it.

12. More contemporaneously, in about early May 2021, the police conducted a controlled operation for the purpose of detecting persons committing or participating in relevant controlled activities; and it is implicit in the agreed statement of facts that certain chat users were of interest to the police.

13. In July of 2021, you began to relevantly engage in communications in an adult chatroom with a person who described herself as a 39 year old mother who had a nine year old child named Hannah. At the time you were 53 years of age. It would seem that you accepted that the person with whom you were communicating was a 39 year old mother with a nine year old daughter. You and the mother began to have chats through various media.

14. The first conversation on the adult chatline was on 6 July 2021. It relevantly commenced with you asking the mother what she would like to do with a man that was “taboo”, and you said to her that she could be very open and naughty. And within that first conversation you raised, not she, you raised the involvement of her daughter in sexual activity. You suggested that the daughter would watch you and the mother. But swiftly you moved to the topic of the daughter joining in the activities.

15. Later that day, the conversation continued (not on the chatline but on Skype) and, in this conversation, it was you who suggested that if you and the mother met more than once, that you would like to introduce the daughter into “other things”. The conversation continued and it was you who suggested that the child would come over and either join in or watch what you and the mother were doing. There was further discussion and then it was you who said “We will do it first and then bring her into it”.

16. On the second date, the next day 7 July 2021, you again communicated with the mother (this time initially by telephone) about involving Hannah in sexual activity. You confirmed what you had said the day before that you had some experience with 13 year old’s in the past. There was discussion about you speaking with Hannah and there was confirmation that, in the sexual activity that you had contemplated with the mother, Hannah would be watching.

17. There was a third encounter with the mother on 9 July 2021 in which there was no specific reference to Hannah.

18. There was a fourth communication with the mother on 10 July 2021 in which the mother said that she kept thinking about the matters that she and you had discussed. But it soon led to you discussing digitally penetrating and performing cunnilingus upon the mother in the presence of the daughter. You suggested that the best way to bring the child into this activity was for you to perform these sexual acts in the presence of the child and that was “The best way to bring her into it”. There was then a discussion about you taking the child’s virginity on her 10th birthday. There was discussion about the child performing fellatio on you. There was discussion initiated by you of you performing cunnilingus on both the mother and the child in the presence of each other.

19. There was a fifth occasion in which you spoke with the mother, being 12 July 2021, misstated in the facts as 2022. It was you who suggested in rather graphic terms of Hannah performing fellatio on you.

20. There was a 6^th correspondence with the mother on 13 July 2021.

21. There was a 7^th communication with the mother on 14 July 2021 in which it was you who made a reference to “Making love” to the child.

22. There was an 8th exchange between you and the mother on 14 July 2021 in which you asked the mother to confirm that she did not mind that you wanted to take her child’s virginity and you led the discussion as to how that physically would take place.

23. On 15 July 2021, there was a 9th exchange between you and the mother. Again, you led the discussion as to how the events would unfold. There was discussion of you performing cunnilingus on the child. There was discussion of the mother performing fellatio on you and the child joining in. At one point you said “I’m so nervous, I’m shaking a bit knowing that you’re okay with this and really want to experience all this wonderful feelings”.

24. Also on 15 July 2021 you spoke directly with Hannah. (This conversation however is part of sequence 4; the rest of what I have been referring to is part of sequence 2). In this conversation that you had with a person you believed to be a six year old girl, you spoke about how you and that child would participate or join in what she was going to see you and her mother doing.

25. After that phone call, there were more communications with the mother which is a continuation of sequence 2.

26. On 16 July 2021 there was a tenth exchange between you and the mother.

27. Later that day, there was a second conversation between you and Hannah (which is the second component of sequence 4). This was a Skype message in which you not only incited but, so far as you believed, you actually obtained the girl to masturbate herself.

28. Later that day (and this is reverting back to sequence 2) you and the mother discussed the fact that you had taught the nine year old girl how to masturbate. There was then discussion about you and the girl engaging in penial vaginal intercourse. At this stage, it was left as a possibility - but it was discussed to the point as to whether or not it was necessary for you to take condoms. That issue was raised by the mother. You said that would not be necessary because the child had not had her first period. You then discussed the child performing fellatio on you “For a start”. There was discussion initiated by you about the child and her mother mutually masturbating each other.

29. There were further text messages on 18, 19, 20 and 21 July 2021, they being relevantly the 11th, 12th, 13th and 14th interactions by you with the mother. These discussions involved you talking about the child masturbating herself and engaging in oral sex with you. Ultimately it was agreed between you and the mother that there would be a meeting at the mother’s place at Westmead on 22 July 2021 at 8.30am where activities were to take place, not only between you and the mother but also the daughter. I note that you lived at Guildford.

30. It is these communications with the child’s mother which constitutes the matter on the section 16BA schedule, being sequence 2.

31. You arrived at the agreed time and date at the address provided by the mother - who was of course always an undercover police officer, as was the person performing the role of Hannah. After you arrived, you messaged the mother saying that you were “Walking in now".

32. It is at this point in the narrative that a disputed fact arose. The agreed statement of facts say at around the same time, you were arrested and cautioned “After leaving the designated premises” and whilst you were walking in the direction of your vehicle.

33. It was submitted on your behalf that, at this point, you had decided not to proceed with what you had discussed with the mother. The Crown disputes that construction being given to that part of the agreed facts.

34. You have given no sworn evidence to that effect.

35. The only source of the assertion that you had changed your mind was what you told Dr Nielssen. On page 2 of his report, he records that you told him “Even on the day I chickened out”.

36. A change of mind, in my view, is an exculpatory factor on which you have the onus of proof on the balance of probabilities.

37. As I have said, you have not given sworn evidence that you changed your mind. The mere fact that you walk towards the car is not conclusive one way or the other.

38. You gave this version to Dr Nielssen in anticipation of his report coming before the Court.

39. But there was no reference to you “chickening out”, or anything to that effect, when you were originally arrested by police. Indeed, when you were originally spoken to by police, you were affirming that you had still wanted to have sex with the woman and for the child to watch and masturbate. There is no reference to you “chickening out”, or anything else to that effect, in the subsequent formal interview. There is no reference to you “chickening out” in the interview you gave with Community Corrections for the sentencing assessment report.

40. In the result, I am not satisfied on the balance of probabilities that you had changed your intention at the time of your arrest.

41. Once you were arrested, the police accessed various devices of yours. They examined an Apple iPhone on which five files of child abuse material were found. They accessed a Seagate external hard drive on which 32 images of child abuse material was found. They accessed a Dell laptop in which two files of child abuse material was found. And, across all these devices, a significant quantity of child abuse material involving children under ten years of age, as well as children from 12 to 14 years of age, was found.

42. I find it again difficult to understand how you could have told Dr Nielssen that you were not interested in prepubescent or young females, given the conversations that you had with Hannah’s mother and with the material that was found on those devices after your arrest. And I find it difficult to understand how Dr Nielssen did not appear to question your assertion.

43. It is what is found on those devices after your arrest which constitutes sequence 13.

44. They are the facts for the three principal offences involving child abuse material and the two matters on the section 16BA schedule.

45. I earlier mentioned that there was a fourth principal offence of contravening the Public Health Act. By travelling to the mother’s premises on 22 July 2021, you were in breach of a Public Health Order in force during the pandemic.

46. It is necessary for the Court to make a finding of the objective seriousness of each of the four principal offences for an offence of its kind.

47. In relation to the three principal offences concerning child abuse material, each offence is somewhere equidistant between the middle and the bottom of the range. The breach of the Public Health Act is at the top of the range.

48. Insofar as the three principal offences involving child abuse material is concerned, there are no additional aggravating factors.

49. By having regard to the nature of sequence 2, there will be a substantial increase in the penalty for sequence 4.

50. By having regard to the nature of sequence 20, there will be a slight increase in the penalty for sequence 17.

51. I have already mentioned your age.

52. You have no previous criminal offences recorded against you. In the context of child abuse offences, that consideration is of significantly reduced significance. It still has some relevance. But I would observe that, by reason of your pleas to the offences in 2013, your assumed prior good character in 2021 is diminished.

53. Other aspects of your background are set out in detail in the report of Dr Nielssen and in the affidavits made by your mother and your wife.

54. Your childhood was an unhappy one. Your parents did not have a happy marriage. Your father’s behaviour was less than ideal. As a result of the breakdown in their marriage, you left school earlier than you might otherwise have done because you felt the need to financially support your mother and your siblings.

55. It seems that you are an intelligent man and, after you left school, you worked hard all your life.

56. You have had a long marriage. You have supported your wife and children financially over many, many years.

57. Your physical and mental health is not good. The details are set out in the Justice Health notes and in Dr Nielssen’s report.

58. But nothing in your background Mr Hyeraci explains why you committed these offences in 2013 and 2021 - except that you do have a sexual interest in young girls and prepubescent girls.

59. I am unpersuaded by Dr Nielssen’s report to the contrary. Dr Nielssen has failed, in my view, to properly examine the source material to which I have referred this afternoon; and he has not exposed his reasoning for his conclusion that you are not sexually attracted to children.

60. It is true that his report was tendered without objection. It is true that he was not required for cross‑examination. But the Court is not bound to accept his evidence even though it has not been challenged in cross examination - it was challenged in submissions.

61. There is high authority for the proposition that a tribunal of fact does have a capacity to reject even unanimous medical opinion, if there is a proper basis for doing so: see for example Taylor v The Queen (1978) 22 ALR 599. There are many other cases to similar effect.

62. I do not accept the conclusion of Dr Nielssen - or the apparent acceptance by him of your assertion - that you do not have an interest in children.

63. I am not suggesting however that when you said that to Dr Nielssen you were deliberately lying. My conclusion about you, sir, is that you do not accept, and cannot accept, the truth; and that you have closed your eyes to it.

64. The sentencing assessment report obtained in the Crown case notes that you minimised your offending; that you minimised the gravity of the offences; and that you had minimal insight.

65. It is true that you have expressed contrition to your family, at the position you find yourself in - and the Crown accepts that, as do I. However the fact is that contrition is only part of assessing a person’s prospects of rehabilitation.

66. As at now, you are not genuinely remorseful because you have not faced up to the fact that you do have this interest in children; and unless and until you confront that fact, and unless and until you accept treatment for that condition, you are at real risk of re-offending. Unless and until you acknowledge that you have an interest in children, which the facts establish beyond a shadow of a doubt, you remain and will remain a risk - and notwithstanding your background and the love and support that you have from your wife, your friends, your children, and your siblings.

67. On the material before me, my assessment of your prospects of rehabilitation is that they are guarded.

68. The primary sentencing consideration for offences such as these, Mr Hyeraci, is general deterrence. The primary sentencing consideration is to impose a sentence that will deter others from doing what you have done.

69. In your case Mr Hyeraci, specific deterrence is also fully engaged because of your failure so far to admit the matters I have been referring to. Specific deterrence involves fixing a penalty that will deter you from reoffending.

70. The penalty must also protect the community; and your rehabilitation must also be taken into account.

71. No sentence for any of the child abuse matters other than imprisonment is appropriate and the contrary was not submitted on your behalf by Mr Vasic.

72. I am going to impose an aggregate sentence. It is necessary for me to state the indicative sentences underpinning the ultimate aggregate sentence.

73. In determining the indicative sentences, I have had regard to the fact that you entered an early plea of guilty, which facilitated the course of justice, and I shall therefore reduce each of the indicative sentences by 25% to give effect to that early plea.

1. Insofar as sequence 4 is concerned, and taking into account sequence 2, except for your plea of guilty, the indicative sentence would have been imprisonment for four years. After the discount of 25%, the indicative sentence for that sequence is three years imprisonment.

2. In relation to sequence 13, except for your plea of guilty, the indicative sentence would have been imprisonment for two years eight months. After the discount of 25%, the indicative sentence is imprisonment for two years.

3. In relation to sequence 17, and taking into account sequence 20, except for your plea of guilty, the indicative sentence would have imprisonment for three years. After the discount of 25%, the indicative sentence is imprisonment for two years and three months.

4. In determining the aggregate sentence, the law provides that the indicative sentences for sequences 4 and 13 should be totally accumulated, unless the Court is persuaded that there should be some partial accumulation. I am persuaded that there should be partial accumulation of those indicative sentences, rather than total accumulation, because: (a) to impose another sentence otherwise would be crushing or disproportionate; and (b) the ultimate aggregate sentence that I have in mind will be of sufficient severity.

5. You have been in custody since your arrest on 22 July 2021 and the aggregate sentence will be backdated to commence on that date.

6. In fixing the non‑parole period that I shall shortly pronounce, I have taken into account the arduous nature of the manner in which you have had to serve your imprisonment to date with the COVID-19 restrictions, which are set out in your affidavit made yesterday, and which graphically illustrate the very arduous nature of your imprisonment over the last year and a bit.

7. I have also taken into account, in fixing the non‑parole period, the various significant medical conditions you have.

8. I have also taken into account the fact that this is your first time in prison.

9. In consequence Mr Hyeraci for the sequences 4, 13 and 17, I sentence you to an aggregate term of imprisonment of four years and six months. I fix a non‑parole period of two years to date from 22 July 2021 and which will expire on 21 July 2023. I fix a balance of two years and six months to date from 22 July 2023, which will expire on 21 January 2026.

10. Whether you are admitted to parole or not, once you have served the non‑parole period, is not a matter for me. It is a matter for the Parole Board. My experience is, that if an offender such as you does not engage in therapy, or seek to engage in therapy, for the remainder of the non‑parole period, the Parole Board very frequently refuses to grant an offender parole.

11. Insofar as sequence 5 is concerned, (the Public Health Act offence), I direct a conviction be entered but, pursuant to s 10A of the Crimes (Sentencing Procedure) Act, I determine that it is inexpedient to impose any penalty.

12. By consent I make orders in accordance with the documents entitled “Forfeiture Order” signed by me and dated today

13. Thank you officers, you can take the offender with you.

Amendments

20 January 2023 - Editing errors

Decision last updated: 20 January 2023