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District Court 2 October 2020

R v Hoyn

[2020] NSWDC 834

Public order & justice offences
CRIME SERVING POLICE OFFICER SENTENCING RELEVANT FACTORS ON SENTENCE CONVICTION AFTER TRIAL COMMON LAW OFFENCE FACT FINDING

Citation: R v Hoyn [2020] NSWDC 834
Court: District Court of New South Wales
Date: 2 October 2020
Judge: Haesler SC DCJ

Background

A serving police officer was found guilty by jury of four counts of the common law offence of misconduct in public office, following a six-day trial. The jury determined that he had, without reasonable excuse or justification, accessed personal information held on police information systems and passed that information to third parties. He was acquitted of two further counts, which the court treated as reflecting the jury's view that those particular acts did not rise to the level warranting criminal punishment.

The four counts for which he was convicted each involved accessing a different person's details at the request of an acquaintance. The stated reasons ranged from helping a friend reconnect with a lost family member to identifying a person said to owe a debt. One count involved releasing information that included police operational alerts about the person enquired upon. Another involved providing address details to a person who turned out to be a local drug dealer, though the court found it could not be established beyond reasonable doubt that the officer knew of any nefarious intent at the time.

The matter came before Haesler SC DCJ for sentencing. A central issue was assessing the objective seriousness of each count and the weight to be given to the officer's work-induced post-traumatic stress disorder (PTSD), said to have arisen from repeated exposure to serious road accident scenes during his service as a Highway Patrol officer.

  • What is the appropriate sentence for a serving police officer convicted of four counts of misconduct in public office at common law?
  • How should the court assess the objective seriousness of each count, in the absence of a corresponding maximum penalty for the common law offence?
  • What factual findings on motivation and purpose could be made consistently with the jury verdicts and the evidentiary standard applicable to sentencing?
  • What weight should be given to the offender's work-induced PTSD as a mitigating factor?
  • Whether media reporting of the offending amounted to extra-curial punishment warranting a reduction in sentence.

Decision

Fact finding and motivation

The court proceeded on the basis that the conduct was wilful and without reasonable excuse, consistent with the jury verdicts. The officer's explanations for each act were described as self-serving and uncorroborated. While the court could not find beyond reasonable doubt that he knew of any nefarious purpose by the enquirers, it was also unable to accept his claimed benign motivations. The court ultimately proceeded on the basis that he was reckless as to how the information might be used.

Objective seriousness

The court identified a range of factors relevant to objective seriousness for this type of offence: the nature of the duty breached, any planning, the offender's motivation, direct loss, actual and potential harm from releasing personal information, the extent of departure from public duties, and whether financial gain was involved. The court noted the insidious nature of doing a favour for a friend as a form of corruption, citing the Court of Criminal Appeal's observations in Jansen v R. Counts 3 and 4 were treated as the least serious; Count 5 was more serious because the released information included police operational alerts; and Count 6 was the most serious, involving the disclosure of address details to a person who sought to recover a debt, presenting real risks to the subject's personal safety.

PTSD and personal circumstances

The court accepted that the officer had a genuine and longstanding commitment to his duties as a Highway Patrol officer and had been repeatedly exposed to serious road accident scenes. That exposure had produced a lasting and detrimental impact, constituting work-induced PTSD. The court found this diagnosis was a relevant mitigating factor warranting understanding, compassion, and leniency in the sentence imposed, albeit it did not excuse the offending.

Media reporting

The court rejected the submission that media coverage of the offending amounted to extra-curial punishment or that it had been unfair in its reporting. No reduction in sentence was made on that basis.

Orders Made

Counts 3 and 4:
- Convicted on each count
- Community Correction Order for 2 years under s 8(1) of the Crimes (Sentencing Procedure) Act 1999
- Standard conditions apply, including no further offending and compliance with court directions
- Supervised by Community Corrections Officer at Wollongong
- Required to engage in programs as directed by Community Corrections
- Required to report to Wollongong Community Corrections Office within 7 days of 2 October 2020

Counts 5 and 6:
- Convicted on each count
- Count 5: indicative sentence of 1 month imprisonment
- Count 6: indicative sentence of 12 months imprisonment
- Aggregate sentence of 1 year and 1 month imprisonment, to be served by way of an Intensive Correction Order (ICO) under s 7(1) of the Crimes (Sentencing Procedure) Act 1999, commencing 2 October 2020
- Standard ICO conditions apply, including no further offending and supervision by a Community Corrections Officer
- Additional conditions: 100 hours of community service work; compliance with Community Corrections directions regarding continuing mental health treatment; report to Wollongong Community Corrections Office within 7 days of 2 October 2020

Related offences withdrawn and dismissed.

Key Takeaways

  • Misconduct in public office, as a common law offence with no fixed maximum penalty, requires the sentencing court to assess seriousness by reference to identified factors including the nature of the duty breached, the potential for harm, whether personal gain was involved, and the extent of departure from the officer's public responsibilities.

  • Recklessness as to the use that might be made of improperly disclosed information is sufficient to ground a finding of serious misconduct, even where actual knowledge of nefarious intent cannot be proved beyond reasonable doubt.

  • Doing a favour for a friend by misusing a public office can constitute an insidious form of corruption, even where the officer does not receive direct financial reward. The court cited Jansen v R [2013] NSWCCA 301 in support of this proposition.

  • Work-induced PTSD, where established on the balance of probabilities, can be treated as a mitigating factor on sentence, particularly where it arises from the offender's diligent performance of duties and has had a genuine and lasting impact.

  • Media reporting of offending by a public official does not automatically constitute extra-curial punishment warranting a reduction in sentence. The court examined the nature of the coverage and found it was neither unfair nor punitive in character.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7(1), 8(1)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Police Act 1900 (NSW)

Cases:
- Blackstock v R [2013] NSWCCA 172
- DPP v Della Rosa [2010] NSWCCA 194
- Hughes v R [2014] NSWCC 15
- Jansen v R [2013] NSWCCA 301
- Jaturawong v R [2011] NSWCCA 168
- Obeid v R [2015] NSWCCA 309
- Olbrich v The Queen (1999) 99 CLR 270
- R v Farrell (unreported, District Court of NSW, 13 February 2013)
- R v Hokin, Burton & Peisely (1922) 22 SR (NSW) 280
- R v Obeid (No 12) [2016] NSWSC 1815
- R v Obeid (No 2) [2015] NSWSC 1380
- R v Purcell [2010] NSWDC 98
- R v Verdins (2007) 16 VR 269; [2007] VSCA 102
- The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550