R v Hoyn

District Court of NSW|2020-10-02|Before: Ms J

sentence - ex tempore revised

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.
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.
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.

Objective seriousness

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.
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.
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].
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.
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.
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.
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

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

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].
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.
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".
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.
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.
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

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.
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.
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.
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.
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.
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.
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.
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

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

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.

Counts 3 and 4

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

In relation to counts 5 and 6 you are convicted.
In relation to count 5, I indicate a sentence of imprisonment of one month.
In relation to count 6, I indicate a sentence of imprisonment of 12 months.
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.
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.
The related offences are withdrawn and dismissed.

Amendments 08 February 2021 - Typographical error on cover sheet only 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: 08 February 2021

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