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District Court 27 September 2019

R v Vaughan Mark Hildebrand (No. 1)

[2019] NSWDC 957

Sexual offencesFirearms & weaponsPublic order & justice offences
CRIME SEXUAL INTERCOURSE WITHOUT CONSENT POSSESS PROHIBITED WEAPON WILFUL MISCONDUCT IN PUBLIC OFFICE 26 SUBSTANTIVE OFFENCES 15 FEMALE VICTIMS

Citation: R v Vaughan Mark Hildebrand (No. 1) [2019] NSWDC 957
Court: District Court of New South Wales
Date: 27 September 2019
Judge(s): Tupman DCJ

Note: These sentences were subsequently quashed by the NSW Court of Criminal Appeal in Hildebrand v R [2021] NSWCCA 9 following an appeal by the offender. The matter was remitted to the District Court and the offender was resentenced by Tupman DCJ on 3 February 2022 in R v Hildebrand (No. 2) [2022] NSWDC (full citation pending). This post summarises the original 2019 sentencing decision only.

Background

The offender, a serving police officer at the time of the later offences, appeared before the District Court for sentence after pleading guilty in the Local Court to a large number of Commonwealth and New South Wales offences. The offending spanned approximately ten years, beginning when the offender was 18 years old, and involved 15 female victims including family friends and work colleagues.

The offender's conduct followed a consistent pattern: he manipulated and threatened women into sending sexually explicit photographs or engaging in sexual acts online, using that material as leverage to coerce them into sexual intercourse with him. The offending ranged from sending threatening electronic messages to anal rape. The offender had been diagnosed with post-traumatic stress disorder arising from his police service, though the court found no causal connection between that condition and the offending.

The offender pleaded guilty to all charges and demonstrated some insight into the impact on his victims. The court assessed his prospects of rehabilitation as relatively good.

  • How to structure and calculate appropriate sentences across 26 substantive offences and 18 additional offences taken into account, drawn from a mix of Commonwealth and New South Wales legislative regimes with different sentencing frameworks
  • Whether and to what extent sentences should be accumulated or made concurrent, having regard to the principle of totality and the overall criminality of the offending
  • The weight to be given to mitigating factors including the guilty plea, some remorse, the offender's PTSD, and his prospects of rehabilitation
  • How to apply the common law wilful misconduct in public office offence (which carries no specified maximum penalty) alongside statutory offences with fixed maximum and standard non-parole periods
  • The appropriate use of aggregate sentencing under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) alongside individual fixed terms and indicative sentences

Decision

Tupman DCJ described the sentencing task as "extremely lengthy and complex," noting the combination of Commonwealth and state offences, the volume of victims, and the wide disparity in maximum penalties (ranging from 3 years to 15 years, with one common law offence carrying no maximum). Her Honour also criticised both the prosecution and defence for presenting an unwieldy 48-page agreed facts document that contained verbatim messages and granular detail rather than focused summaries of objective criminality.

The court assessed the total criminality of the sexual intercourse without consent offences as warranting an overall imprisonment term of 16 years with an overall non-parole period of 11 years. When that category of offending was considered together with all remaining offences, the court determined that the overall criminality justified a total effective term of 20 years' imprisonment with an overall non-parole period of 15 years.

Her Honour structured the sentences using a combination of aggregate sentences under s 53A, indicative terms, fixed terms, and partial accumulation across the different categories of offending. The court applied partial concurrence rather than full accumulation to avoid a crushing sentence that would be disproportionate to the offender's total culpability, consistent with the totality principle.

Her Honour found the guilty plea, the offender's relatively good rehabilitation prospects, and his acceptance of some responsibility to be genuine mitigating factors. However, the callousness and manipulation involved in the offending, the abuse of his position as a police officer, and the serious and sustained harm caused to 15 victims were treated as significant aggravating features.

Orders Made

• Aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 7 years for sequences 67 and 55
• Non-parole period of 5 years
• Sentence commences 31 May 2024 and expires 30 May 2031
• Non-parole period commences 31 May 2024 and expires 30 May 2029
• Parole of 2 years commencing 31 May 2029, expiring 30 May 2031

Note: The judgment records indicative and aggregate sentences across multiple sequences. The overall effective sentence was 20 years' imprisonment with a non-parole period of 15 years. Specific commencement and expiry dates were set for individual sequences, including an aggregate sentence for sequences 67 and 55 of 7 years with a 5-year non-parole period commencing 31 May 2024.

Key Takeaways

  • The District Court applied the totality principle to a highly complex multi-offence, multi-victim sentencing exercise, using a mix of aggregate sentences, indicative terms, and partial accumulation to reflect overall criminality without producing a crushing total
  • Where an offender faces charges under both Commonwealth and New South Wales legislation, the different sentencing regimes under each must be applied to the relevant offences individually, adding a layer of complexity to the structuring of any overall sentence
  • Status as a serving police officer at the time of offending was treated as a meaningful aggravating factor, consistent with the approach to wilful misconduct in public office as a stand-alone common law offence
  • A diagnosed psychiatric condition (here, PTSD from police service) does not automatically bear on sentence as a mitigating factor: the court must find a causal or relevant connection between the condition and the offending before it can reduce culpability
  • Sentencing courts have repeatedly noted the obligation on both prosecution and defence to present agreed facts in a form that assists the court; verbatim reproductions of evidence without distillation of objective criminality were criticised here as adding unnecessary complexity and delay

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 23, 49(2), 53A
- Crimes Act 1900 (NSW), ss 61I (sexual intercourse without consent), 192J (dealing with identity information)
- Crimes Act 1914 (Cth), ss 1B, 16BA
- Criminal Code Act 1995 (Cth), ss 474.17(1) (using carriage service to menace or harass), 474.19(1) (using carriage service to solicit child pornography)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases
- R v Obeid (No 12) [2016] NSWSC 1815
- R v Thomson & Houlton (2000) 49 NSWLR 383
- RL v R [2018] NSWCCA 274
- Hildebrand v R [2021] NSWCCA 9 (subsequent appeal, sentences quashed)