Citation: R v Hyeraci [2022] NSWDC 656
Court: District Court of New South Wales
Date: 16 December 2022
Judge(s): Colefax SC DCJ
Background
The offender, a man aged 53 at the time of the principal offending, was sentenced on four offences arising from two separate periods of conduct. The more serious and recent offending occurred between July and September 2021, when the offender used online platforms to engage in extended communications with what he believed to be a mother and her nine-year-old daughter, "Hannah." In fact, the "mother" was an undercover police operative conducting a controlled operation.
Over a series of exchanges beginning in early July 2021, the offender initiated and escalated discussions about sexual activity involving the child. He later spoke directly with a person he believed to be the nine-year-old girl and, on one occasion, procured what he believed to be the child's self-masturbation. A separate offence was established on 22 July 2021 when the offender was found to have possessed or controlled child abuse material using a carriage service.
A second strand of offending dated back to 14 September 2013, when the offender transmitted eleven items of child abuse material (ten videos and one image) to a person using the name "Lisa Smith" via online chat. He also received eight videos of child abuse material during that same exchange. Throughout proceedings, the offender denied any sexual interest in prepubescent girls or adolescent females, a claim the sentencing judge found difficult to reconcile with the established facts. A fourth offence, a breach of a COVID-19 public health direction on 22 July 2021, was also dealt with by consent in the District Court.
Legal Issues
- The appropriate aggregate sentence for three Commonwealth offences under the Criminal Code Act 1995 (Cth), each carrying a maximum of 15 years imprisonment
- The degree to which the indicative sentences for the separate offences should be accumulated or partially accumulated
- The appropriate non-parole period, having regard to mitigating factors including the offender's age, medical conditions, first-time imprisonment, and the arduous conditions of custody under COVID-19 restrictions
- The proper disposition of the public health offence, including whether any penalty should be imposed beyond recording a conviction
Decision
His Honour sentenced the offender on the basis of an agreed statement of facts. The judge found the procuring offence (sequence 4) to be the most serious, noting that the offender consistently initiated and escalated the sexual content of conversations, and that he procured what he believed to be a nine-year-old child to engage in self-masturbation. The judge expressed significant difficulty accepting the offender's denial of any sexual interest in children, particularly in light of both the 2013 conduct and the graphic nature of the 2021 communications.
In assessing the 2013 offending (sequence 17), the judge noted the content of the transmitted material was described as "the depraved abuse of young children," and found the offender's denials to Dr Nielssen, a psychiatrist retained on his behalf, were hard to reconcile with the established facts.
On accumulation, the law required the indicative sentences for sequences 4 and 13 to be totally accumulated unless partial accumulation was warranted. His Honour was satisfied that total accumulation would produce a crushing or disproportionate result, and ordered partial accumulation instead. The judge also took into account the hardship of custody under COVID-19 restrictions, the offender's significant medical conditions, and the fact that this was his first period of imprisonment.
For the public health offence, the judge recorded a conviction but determined it was inexpedient to impose any penalty, relying on section 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Orders Made
- Aggregate term of imprisonment of four years and six months for sequences 4, 13, and 17 (Commonwealth offences), backdated to commence 22 July 2021
- Non-parole period of two years, expiring 21 July 2023
- Balance of term of two years and six months, commencing 22 July 2023 and expiring 21 January 2026
- Conviction recorded for the public health offence (sequence 5); no penalty imposed pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Forfeiture order made by consent
Key Takeaways
- The District Court applied partial rather than total accumulation of indicative sentences where full accumulation would have produced a crushing or disproportionate outcome, even where multiple serious offences spanned different periods.
- Mitigating factors accepted by the Court included the offender's first-time imprisonment, significant medical conditions, and the particularly arduous nature of custody experienced under COVID-19 restrictions.
- Where an offender's stated denial of sexual interest in children was contradicted by the objective facts of the offending, the sentencing court indicated it had difficulty accepting that denial, even where it had been recorded without qualification by a psychiatric expert.
- Under s 474.26(1) of the Criminal Code Act 1995 (Cth), using a carriage service to procure a person believed to be under 16 for sexual activity carries a maximum penalty of 15 years imprisonment; the offence is complete on the basis of the offender's belief, regardless of whether the "child" was in fact a police operative.
- A conviction recorded under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) carries no further penalty, and the District Court applied this provision to a summary public health offence dealt with by consent alongside the principal indictable matters.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), ss 474.26(1), 474.22A(1), 474.19(1)
- Public Health Act 2010 (NSW), s 10
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
Cases:
- Taylor v The Queen (1978) 22 ALR 599