R v Hynch

[2024] NSWDC 613

District Court

New South Wales

Medium Neutral Citation:

R v Hynch [2024] NSWDC 613

Hearing dates:

15 October 2024

Date of orders:

15 October 2024

Decision date:

15 October 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

State offence — Fixed term sentence of 6 months.

Commonwealth offences — Aggregate imprisonment sentence of 3 years 2 months with a non-parole period of 1 year 6 months

Catchwords:

CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material

CRIME — Child sex offences — Breach Child Protection (Offenders Registration) Act orders

SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Penalties — Imprisonment— Mandatory minimum terms

SENTENCING — Relevant factors on sentence — Deterrence — Moral culpability — Objective seriousness

SENTENCING — Sentencing procedure — Accumulation and concurrency — Instinctive synthesis

SENTENCING — Subjective considerations on sentence — Aboriginal offender — Mental illness — Mental disorders — Deprived childhood — Drug addiction — Health issues

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW)

Crimes Act1914 (Cth)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Code Act 1995 (Cth)

Cases Cited:

Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

R v Booth [2009] NSWCCA 89

R v Holder; R v Johnston [1983] 3 NSWLR 245

R vHutchinson [2018] NSWCCA 152

The King v Hurt [2024] HCA 8

Category:

Sentence

Parties:

Jamarlee Hynch (the offender)
Public Prosecutions (Cth) (Crown)

Representation:

Counsel:
K Breckweg (for the Crown)

Solicitors:
L Gration solicitor for Aboriginal Legal Service (NSW/ACT) (for the offender)
Public Prosecutions (Cth) (Crown)

File Number(s):

2022/378438

JUDGMENT – ex tempore revised

Introduction

1. Jamarlee Hynch is still a young man. He was born in 1998. His first criminal conviction was in October 2019. He was charged and was convicted of using a carriage service to send indecent material to a person under the age of 16. As a consequence of his conviction, he was placed on a Community Corrections Order for 3 years. Another consequence of that conviction was that he was placed on the Child Offender Register.

2. His criminal record reveals that he failed to comply with reporting obligations on a number of occasions. The last non-compliance resulted in a sentence of imprisonment to be served by intensive correction in the community.

3. The initial conviction is also important because it is a trigger for the penalty provisions that apply to certain offences in the Criminal Code Act 1995 (Cth).

Facts for sentence

4. There are comprehensive Agreed Facts before the Court today. In summary, it is accepted that on 3 October 2022, Hynch used a carriage service to transmit an image and a video by uploading these materials via a specific application to a group chat which was accessible by other participants. Both contained child abuse material.

5. Secondly, he possessed these materials together with two additional videos (also constituting child abuse material). They were located by police on his mobile phone in that specific application.

6. He committed these offences while he was subject to reporting requirements as a registrable person pursuant to the Child Protection (Offenders Registration) Act 2000 (NSW). It is clear he failed to report relevant personal information, namely two Instagram usernames, and the application username.

7. The material subject of that brief summary was retrieved from a black Telstra mobile phone seized during the execution of the search warrant. The offender co-operated by providing police with the PIN to unlock the item.

8. The video file, a minute and 40 seconds in duration, depicted adult female engaged in penial/vaginal intercourse with a prepubescent female estimated between two and five. The image was of a prepubescent female, showing her genitals.

9. Messages sent as the carriage service offence included a video file of a child performing sexual acts with objects. The other video was of a prepubescent child close cropped to show her genitals.

10. These images fall within the child abuse material Interpol based categorisation system, Category 1. Given there are only two categories – this scheme of classification is not a very helpful measure of seriousness. I have in the past, criticised Interpol based categorisation system. I will not repeat those criticisms.

11. These matters were subject of early guilty plea discussions in the Local Court. Those discussions resulted in three charges coming to this Court for sentence:

• Sequence 1 – Possess or control child abuse material access using a carriage service: CriminalCode (Cth), s 474.22A(1).

• Sequence 3 – Fail to comply with reporting obligations: Child Protection (Offenders Registration) Act (NSW), s 17(1); and

• Sequence 8 – Use carriage service to transmit child abuse material: Criminal Code (Cth), s 474.22(1).

Maximum penalties and standard non-parole periods

12. The Commonwealth offences both carry maximum penalties of 15 years imprisonment. If an offender has a prior offence such as that recorded here, there is a mandatory minimum sentence.

13. The New South Wales State offence has a maximum penalty of 5 years imprisonment.

14. Maximum penalties are important guides to exercise the Court’s sentencing discretion. They convey the respective Parliament’s view of the seriousness of the offences. Here, the mandatory minimums reflect Parliament’s view of the penalty for the least-worse case that warrants imprisonment. As the High Court made clear in The King v Hurt [2024] HCA 8 that provision is required to be considered as part of the general synthesis of all relevant matters.

Guilty plea

15. I am required to reduce the otherwise appropriate State sentence by 25% to reflect the utilitarian value of the guilty plea.

16. I can reduce the otherwise appropriate or applicable Commonwealth sentence by 25% for the plea of guilty. It is accepted that all matters considered, a 25% reduction is appropriate in this case.

17. The proceedings came to this Court in the Broken Hill sittings. When the matters came before me, a review of the criminal antecedents indicated that the offender was dealt with at Broken Hill Local Court on 29 May 2024 for a further fail to comply with reporting obligations and possession of child abuse material offence. He was sentenced by that Court to 1 year and 8 months imprisonment with a non-parole period of 1 year and 2 months. That sentence dates from 19 October 2023.

18. The facts before the Local Court were obtained and became Exhibit 2 in these proceedings. It is clear from those facts that the material, the subject of the State proceedings, had the same source as the material, the subject of those charges; the black Samsung phone found by police when they executed the search warrant.

19. The child abuse material dealt with in the Local Court was of a similar nature but considerably greater volume than the matters presently before this Court. As will be clear the differential in penalties imposed today and previously in the Local Court indicate the impact of Commonwealth’s mandatory minimum penalty regime on the court’s sentencing discretion.

20. It also complicates this sentencing proceedings because the Local Court breach matters were very, very similar to the matters presently before this Court for the State offence.

21. While I am on the subject of the breach matters, obviously the commission of the Commonwealth offences, while subject to registration, is an aggravating factor, but as I will be punishing for the registration offences, care needs to be taken not to double count against the offender those two matters when I ultimately synthesise appropriate sentences.

Basic principles

22. A sentencing judge should identify all the factors relevant to the sentence, discuss their significance, and then make a value judgment as to what is the appropriate sentence for each matter given all the facts of the case.

23. In doing so, I apply the common law, but the common law that has been modified significantly for the State matter the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) and for the Commonwealth matters the Commonwealth Crimes Act1914 (Cth), notably s 17A, and the various iterations of s 16A, including s 16(2) AAA, rehabilitation.

24. There are some slight differences between the Commonwealth and State principles and the specific provisions in both jurisdictions must be considered. But those differences in these matters are not significant.

25. The sentences must be proportional to what was done. This requires an assessment of the objective seriousness of the offence, as it is an important matter that sets the perimeters of an appropriate and proportional sentencing outcome.

The fail to comply matter

26. Here, there was a breach of orders designed to prevent the very serious offending of the type committed in the Commonwealth matters. The breaches were flagrant, given that the orders were explained at the time they were imposed and when the offender reported to police, as he was obliged to. He took active steps to breach the orders made by the Court, requiring, given his previous breaches, a full-time custodial sentence.

Possession of child abuse material

27. It needs to be stated and re-stated that this was a callous crime; one that exploits and abuses children. It is callous because each time the material is viewed the offender is reminded of and confronted with the obvious pictorial evidence of exploitation of a child and the degradation it causes: R v Booth [2009] NSWCCA 89 at [40]-[44]. In R vHutchinson [2018] NSWCCA 152, the court set out matters that should be considered when assessing the relative seriousness of such offending.

28. In the helpful and comprehensive submissions provided by Ms Breckweg for the Commonwealth, and Mr Gration for the Offender, they took me to relevant factors.

29. They involved a child, there was significant sexual activity. But of critical importance here is that the number of items was limited. This is particularly so when one compares the fact here with other reported decisions at first instance and on appeal. In the vast majority the number of items can often be measured in the hundreds or thousands.

30. There appears to be no planning or organisation or sophistication in anything used by the offender in storing or disseminating or transmitting the material. There was no apparent risk of the material being seen or acquired by vulnerable people. There was no obvious proximity of the offender to those responsible for bringing the material into existence. It appears his purpose seemed to be for his own benefit.

31. Given those matters and the number of items, this was a very low-end offence of what is of itself serious offending. Given his history however, a custodial sentence, it is accepted, is and was inevitable.

The carriage service offence

32. Given the ubiquity of the internet and the ubiquity of online group activities on the internet, to gather online with others and transmit the material, the subject of this charge, again perpetuates and expands the abuse.

33. The number of items transmitted was at the very bottom of the range, but their content and nature cannot be ignored. Nor can the fact that the offender was engaged in a chat group with over a hundred persons and he passed on that material to the group not knowing where it would go. Again, it is at the low end of what is serious offending.

Other factors

34. Hynch’s criminal history means he is not entitled to the leniency often given first offenders. Although he has demonstrated continuous disobedience of the law his prior criminal history cannot result in a more serious sentence than the crimes for sentence require.

35. It is important to note that his arrest led to a breach of an Intensive Correction Order (‘ICO’). That Order was ultimately restored, and he was granted Supreme Court bail after 79 days of custody.

36. As I noted earlier, Hynch was subject to separate parallel investigations arising from material found on his phone – the Commonwealth / State matter that I am now dealing with, and the State matter that was dealt with in the Local Court.

37. To be frank, the child abuse material before the Local Court appears, on the limited facts available to me, to be more significant than that here. So far as the breaches are concerned, if they had of been dealt with by the Local Court as part of its proceedings, I could not have imagined a greater sentence would have been imposed upon the offender than was imposed by the Local Court earlier.

38. He must have credit for 77 days gaol time served. True it is, that the time was also served because of a breach of the ICO and there should be some separate punishment for offending while subject to an ICO. But that material was not credited by the Local Court, I have to reflect in this sentence an appropriate reduction for some of it.

39. I propose to do so, in this way, rather than going forward in time to allow for separate punishment for the Local Court matters and then reducing that by time spent in custody solely in relation to this matter / and the breach of ICO, I will give the offender the benefit of starting the State sentence (Sequence 3) for the fail to comply matter on 19 October 2023.

40. The Commonwealth sentences should be accumulated partially on that sentence, and which runs parallel to the State sentences.

The case for the offender

41. No evidence was called, but there are people in Court here to support him and I am assured they will provide support to him when he is in the community.

42. I have the benefit of a comprehensive Sentence Assessment Report (‘SAR’) and I have the benefit of a comprehensive report of Dr Thea Gumbert.

43. The SAR notes limited insight into his offending but also says that he is currently engaged in counselling. Further referrals can be made to the Far West Mental Health Service. On release, a supervision plan can be put in place. It involves referral to Community Services NSW Community Psychologist for Risk Management Intervention. He can, and should, be monitored in the community subject to that plan while he was on parole.

44. He is also as a victim of crime, a matter to which I will refer, and is currently engaged with a victim services counsellor.

45. The report of Dr Gumbert addresses his personal history. It is not controversial.

46. Hynch is a Kamilaroi Barkindji man, born in Moree but raised in Wilcannia, the youngest of seven children. His parents reside locally, as do other family members.

47. As a child he was chronically ill. He spent considerable time in hospital. He says there that he was the subject of repeated sexual abuse. His schooling was disrupted. There is a diagnosis of learning disorders and ADHD. There is a history of trauma, depression and anxiety.

48. He requires assistance with reading and literacy. He has plans for future work, but he has never really worked in the community. He has three children. He has a partner in a long standing relationship. He is in daily contact with her, and she provides support to him.

49. He has a number of mental health conditions. They are set out in the report. There is also a history of associated and long-term abuse of illicit drugs. But it appears that he quit using those drugs when he was 18.

50. He is willing to participate in sex offender treatment in the community. He has fears about engagement with programs while in custody because of retribution by other prisoners, but my understanding is that the high intensity programs would not, in any event, be available to him. I do not ignore the lived experience of gaol. If someone is branded in the gaol as a ‘sex offender’ it makes them more vulnerable to others in gaol offering violence to them.

51. A number of risk assessment tools and tests were administered by Dr Gumbert. Each indicated that his risk of reoffending is well above average.

52. Dr Gumbert also considered dynamic risk factors, something I regard as a much more important tool. She notes that there are both positive and negative dynamic risk factors. He still has problems with self-awareness and stress. His history of sexual deviance and his various mental illnesses do not assist. He has problems with planning and engagement with treatment. He has previously not interacted well with supervising officers when on bail.

53. Given his specific learning disorders and problems with literacy, in Dr Gumbert’s opinion, he meets the criteria for a Paedophilic Disorder and he must be encouraged to engage in sex offender programs offered by Community Corrections.

54. It would be best, on my assessment, if these services are offered and available in the community. I am aware that his present counselling may make him more amenable to that option. Dr Gumbert says it is important that Mr Hynch engage in community treatment on release. I endorse those comments.

55. There is no particular material before me which indicates that his multiple diagnosed conditions had any impact or causal relationship with the commission of the offence. There is a considerable issue of continuing rehabilitation and the need for treatment.

Synthesis

56. Hynch’s Paedophilic Disorder is, of course, a concern. But dynamic factors can be addressed. It is hoped that as the offender, who is still young, matures he’ll come to realise that co-operation with treatment will protect, not just the community, but himself and his family; because obviously a return to gaol is in no one’s interests.

57. His moral culpability, given his history and background, is not to be regarded as the same as a person who did not have such a history and background. Relevant paths to the reduction of an offender’s moral culpability can include; effects of childhood deprivation, childhood trauma such as sexual assault and mental health issues. They all operate here. Often, they are interrelated, often as here, inextricably so.

58. As the plurality of the High Court acknowledged in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571, the pervasive effect of profound deprivation is not confined to the commission of single offences or a series of offences it must always be given full weight on sentencing. Where a person’s childhood and adolescence has been affected by disadvantage, trauma, mental health issues, this can have an inhibitory effect on the development of pro-social values on the acquisition of a moral compass and on the capacity to make behavioural decisions and consequential thinking. Such a background “may compromise their capacity to mature and learn from experience”: Bugmy [43].

59. All of those matters apply here.

60. There are three matters for sentence. A literal reading of s 19(5) Crimes Act 1914 (Cth) tends to a view that Commonwealth sentences should be made cumulative, one on the other. It is hard to read that interpretation with the general laws of sentencing that apply in Commonwealth matters. Here there were separate aspects to the Code offences and there should be some modest accumulation between them.

61. I am required to impose the appropriate sentence for each offence, but when I do so I have to structure them such that the overall sentence is just and appropriate to the totality of the offender’s crime and that involves a consideration of the current matters and the earlier Local Court sentence. There can be downward adjustments to meet that purpose: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [62]-[63]. I must attempt to achieve an appropriate relativity between the totality of the offender’s criminality and the totality of the sentences: R v Holder; R v Johnston [1983] 3 NSWLR 245 at [260] (Street CJ).

62. The offender’s need for assistance in the community means that a longer and the more intensive his supervision, the safer the community will be. There should be some significant adjustment of the ratio between time in custody and time available for parole. The time in custody should be the very minimum that the purposes of sentencing require. The time on parole should, and here does, reflect the public interests and the individual interests of the offender in him being offered every path towards rehabilitation that is able to be made available to him.

56. The minimum sentence that must be applied is designed, in part, to signal to both the offender and others in the community, the consequences of behaving as Hynch did. Here, those important purposes of sentencing are met by the minimum sentence that must be imposed. Given the number of images either possessed or transmitted despite their nature, as I have said, this matter falls into the category that is the least-worst case that warrants imprisonment.

57. Hynch’s background and his history provide many reasons to moderate the sentences. I am however bound by the minimums fixed by Parliament. They must be synthesised along with all other relevant sentencing considerations. They are not simply something that is considered at the end of the process. To be blunt – had I not been obliged to impose the minimum sentences I would not have fixed so high a sentence, but I am obliged to apply the law.

58. While there should be some independent punishment for the State matters, both here and in the Local Court, the State sentence here (in all the circumstances) should be made concurrent with the earlier Local Court sentence.

59. In relation to the Commonwealth offences both are separate and distinct, but in terms of overall criminal seriousness the transmission offence only adds marginally to the penalty required for the possession offence. Although there must be some independent punishment for both maters, there should be almost complete concurrence between them. Given my earlier findings about the objective seriousness of the offending and the nature of the material and the number of images or videos involved, were I to accumulate further, a sentence that was totally disproportionate to the offending would result. That, in my view, fulfils my obligations pursuant to s 19(6) and (7) Crimes Act 1914 (Cth).

Orders

67. Synthesising all those matters. Taking into account the pleas of guilty for the State offence, there will be a fixed term sentence of 6 months. It will date from 19 October 2023. A fixed term is imposed because any non-parole period would be subsumed by the Commonwealth sentence.

68. The Commonwealth sentences minimum non-parole periods should govern this sentencing exercise. The plea of guilty is taken into account.

• For the possess child abuse material offence, taking into account the plea of guilty, there will be a sentence of 3 years imprisonment. That sentence will date from 19 December 2023.

• For the use carriage service offence, there should be a sentence of 3 years imprisonment. That sentence should date from 19 February 2024.

69. In relation to each of those matters, you are convicted and sentenced to a term of imprisonment without hard labour.   

• The first matter is to commence on 19 December 2023 and will expire on 18 December 2026.

• In relation to the transmit offence, you are convicted and sentenced to a term of imprisonment of 3 years without hard labour. To commence on 19 February 2024 and expire on 18 February 2027.

70. I fix a single non-parole period of 1 year and 6 months to commence on 21 December 2023 it will expire on 20 June 2025 on which date, subject to s 19AL Crimes Act 1914 (Cth), you are to be released to parole.

71. A total effective sentence is one of 3 years and 2 months. The total for the Commonwealth matters, total Commonwealth non-parole period, is 1 year and 6 months. But the effective sentence dates from 19 October 2023, which means another two months are added to those sentences.

72. I give parties liberty to restore the matter to me, I'll deal with it in chambers if there is a consent forfeiture order that is required.

Amended orders – Commonwealth sentences, aggregate sentence

73. There were considerable difficulties in entering the Federal sentences orders on the Court’s Justice Link system. On 6 November 2024, after consultation with the parties, pursuant to s 43 Crimes (Sentencing Procedure) Act the Court made the following amendments in chambers:

74. In relation to the federal matters, Seq 1 and Seq 8, the offender is convicted and sentenced to an aggregate term of imprisonment of 3 years 2 months without hard labour, to commence on 19 December 2023 and to expire on 18 February 2027, with a non-parole period of 1 year 6 months to expire on 18 June 2025 on which date, subject to s 19AL Crimes Act 1914, the offender is to be released on parole.

• Seq 1 – Possess child abuse material, I indicate a sentence of 3 years.

• Seq 8 – Use carriage service, I indicate a sentence of 3 years.

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Decision last updated: 17 January 2025