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District Court 15 October 2024

R v Hynch

[2024] NSWDC 613

Sexual offences

Citation: R v Hynch [2024] NSWDC 613
Court: District Court of New South Wales
Date: 15 October 2024 (amended orders 6 November 2024)
Judge(s): Haesler SC DCJ

Background

The offender, born in 1998, had a prior conviction from October 2019 for using a carriage service to send indecent material to a person under 16. That conviction placed him on a Community Corrections Order and, critically, on the Child Offender Register. He repeatedly failed to comply with his reporting obligations under the register, culminating in a prior sentence of imprisonment served by intensive correction in the community.

On 3 October 2022, while still subject to those registration requirements, the offender uploaded child abuse material, including a video and an image, to a group chat via an application on his mobile phone. Police found additional child abuse material on the same device during a search warrant. He also failed to report two Instagram usernames and an application username as required by the Child Protection (Offenders Registration) Act 2000 (NSW).

A complicating feature was that, before these proceedings concluded in the District Court, the offender had already been sentenced by Broken Hill Local Court in May 2024 for separate but closely related offences arising from material found on a different phone during the same search. That Local Court sentence of one year and eight months imprisonment, with a non-parole period of one year and two months, dated from 19 October 2023. The District Court proceedings therefore required careful attention to the relationship between the two sets of sentences and the impact of the Commonwealth's mandatory minimum penalty regime.

  • What was the appropriate sentence for possessing child abuse material using a carriage service, contrary to s 474.22A(1) of the Criminal Code Act 1995 (Cth)?
  • What was the appropriate sentence for using a carriage service to transmit child abuse material, contrary to s 474.22(1) of the Criminal Code Act 1995 (Cth)?
  • What was the appropriate sentence for failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW)?
  • How should the Commonwealth mandatory minimum penalty provisions interact with the instinctive synthesis of all relevant sentencing factors, following The King v Hurt [2024] HCA 8?
  • How should the Court avoid double-counting the registration breach as both a standalone offence and an aggravating factor for the Commonwealth offences?
  • How should the present sentences be structured in relation to the earlier Local Court sentences, so that the total effective sentence remained proportionate?
  • What weight should be given to the offender's subjective circumstances, including his Aboriginal background, deprived childhood, mental health, and drug addiction?

Decision

Haesler SC DCJ assessed the objective seriousness of the offending as falling below the mid-range for offences of this type. While the material depicted serious sexual abuse of prepubescent children and fell within the most serious category of the Interpol classification scheme, the number of items was limited compared with many reported cases. There was no planning, organisation, or sophistication in how the material was stored or transmitted, no apparent risk that vulnerable persons beyond the group chat would access it, and no evident proximity between the offender and those who produced the material.

On the question of the registration breach, the Court found the non-compliance was flagrant. The reporting obligations had been explained to the offender on multiple occasions, yet he took active steps to conceal usernames from authorities. The Court noted that because it was separately sentencing for the breach offences, it had to be careful not to double-count those matters as aggravating factors when synthesising the Commonwealth sentences.

The Court gave significant weight to the offender's subjective circumstances, applying the principles from Bugmy v The Queen (2013) 249 CLR 571 regarding the enduring relevance of a deprived Aboriginal background on moral culpability. Mental illness, drug addiction, and a troubled upbringing were all treated as mitigating factors, though the Court noted they did not diminish the need for deterrence in offences of this nature. A 25% discount was applied to all sentences to reflect the utilitarian value of the guilty pleas.

Following The King v Hurt [2024] HCA 8, the Court treated the mandatory minimum non-parole period provisions as a required element of the sentencing synthesis, not merely a floor to be imposed mechanically. The State offence sentence was ordered to be subsumed within the Commonwealth sentences. Given the sentences already running from the Local Court proceedings, the Court structured the new sentences to commence in sequence from December 2023, resulting in a total effective sentence of three years and two months.

Orders Made

  • Sequence 1 (possess child abuse material, s 474.22A(1), Criminal Code (Cth)): indicative sentence of 3 years imprisonment.
  • Sequence 8 (use carriage service to transmit child abuse material, s 474.22(1), Criminal Code (Cth)): indicative sentence of 3 years imprisonment.
  • Aggregate Commonwealth sentence (Seq 1 and Seq 8): 3 years and 2 months imprisonment without hard labour, commencing 19 December 2023 and expiring 18 February 2027.
  • Non-parole period: 1 year and 6 months, expiring 18 June 2025, on which date the offender is to be released on parole subject to s 19AL of the Crimes Act 1914 (Cth).
  • The State offence sentence (Seq 3, fail to comply with reporting obligations) was subsumed within the Commonwealth sentences.

Key Takeaways

  • Following The King v Hurt [2024] HCA 8, the District Court treated the Commonwealth mandatory minimum non-parole period as an integral element of the instinctive synthesis rather than a separate override, meaning the mandatory minimum informed rather than mechanically determined the sentence.
  • Where an offender is sentenced for both a registration breach and Commonwealth offences to which that breach is also an aggravating circumstance, a court must take care not to double-count the breach when synthesising the appropriate penalties.
  • Objective seriousness for child abuse material offences is assessed by reference to factors including the volume of material, the degree of planning or organisation, proximity to production, and the risk of exposure to vulnerable persons. A limited number of items, with no sophistication in storage or dissemination, placed this offending below the mid-range.
  • Under the principles in Bugmy, the moral culpability of an Aboriginal offender from a severely deprived background is assessed with enduring regard to that background, regardless of prior criminal history.
  • A 25% discount for a guilty plea is available under both the Commonwealth and NSW State sentencing regimes, and where early pleas are entered across multiple related charges, courts will generally apply the discount consistently across all matters.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 474.22(1), 474.22A(1)
- Crimes Act 1914 (Cth), ss 16A, 16(2)AAA, 17A, 19AL
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43
- Child Protection (Offenders Registration) Act 2000 (NSW), s 17(1)

Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- The King v Hurt [2024] HCA 8
- R v Booth [2009] NSWCCA 89
- R v Hutchinson [2018] NSWCCA 152
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
- R v Holder; R v Johnston [1983] 3 NSWLR 245