Attorney-General (SA) v Moyle
[2018] SASC 106
•25 July 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v MOYLE
[2018] SASC 106
Judgment of The Honourable Justice Hinton
25 July 2018
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - GENERALLY
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
Application originally filed under s 23 of the Criminal Law (Sentencing) Act 1988, now s 57 for the Sentencing Act 2017, that the respondent be detained in custody until further order.
The respondent is presently serving a term of imprisonment of four months and one week for aggravated indecent assault contrary to s 56(1) of the Criminal Law Consolidation Act 1935. That offence involved touching a nurse at Port Augusta prison on the buttock. The respondent has spent all save approximately three of the last 28 years in prison. The respondent's antecedents primarily include offences of dishonesty, violence and escape from custody. He was convicted in 2012 for two counts of indecent behavior after being witnessed on two occasions, ten days apart, masturbating on a train while substance affected. He has no other prior convictions of a sexual nature though has received numerous reprimands while in prison for inappropriate sexualized behaviours.
At the hearing of the application it was not contended that Mr Moyle was incapable of controlling his sexual instincts. It was contended that there was a significant risk that the respondent would, given an opportunity to commit the offence of indecent behavior, perhaps also the offence of gross indecency, fail to exercise appropriate control of his sexual instincts. In exercising the discretion to make an order for indeterminate detention it was argued that the risk posed by Mr Moyle to the community was significant and having regard to that risk an order for indeterminate detention was appropriate to protect the community.
The respondent argued that the available evidence could not establish that he was unwilling to control his sexual instincts in the relevant sense. If the Court were to find the threshold question satisfied, the respondent submitted that nevertheless the Court should refuse to make the order in the exercise of its discretion as even if there were significant risk that Mr Moyle would expose himself in public, the risk that that conduct posed to the community was not sufficiently grave to justify the exceptional sanction of indeterminate detention.
Held, dismissing the application:
1. The respondent is unwilling to control his sexual instincts in the relevant sense.
2. The appropriate means of protecting the public from the risk posed by the respondent and of ensuring that he gets the assistance he requires in transitioning to life in the community such that his risk of reverting to his maladaptive behaviours is reduced, is not an order for his indeterminate detention, but an extended supervision order under the Criminal Law (High Risk Offenders) Act 2015.
Criminal Law (Sentencing) Act 1988 (SA) s 23; Criminal Law (High Risk Offenders) Act 2015 (SA) s 7, referred to.
R v Hoare [2017] SASC 7, applied.
ATTORNEY-GENERAL (SA) v MOYLE
[2018] SASC 106Criminal
HINTON J
Introduction
This is an application by the Attorney-General for the State of South Australia seeking an order pursuant to s 57 of the Sentencing Act 2017 (SA) (the Sentencing Act) that Jason Scott Moyle be detained in custody until further order.
The application was commenced on 15 September 2017 as an application under s 23 of the Criminal Law (Sentencing) Act 1988 (SA) (CL(S)A). The Sentencing Act came into operation on 30 April 2018. It repealed the CL(S)A.[1] Schedule 1, Part 2 of the Sentencing Act contained transitional provisions. Clause 2 (1) of those transitional provisions provides:
Subject to this clause, this Act applies to the sentencing of a defendant after the commencement of this Act, regardless of whether the offence of which the defendant is being sentenced was committed before or after that commencement.
[1] Sentencing Act 2017 (SA), Schedule 1, Part 1, Clause 1.
On the hearing of the Attorney-General’s application counsel were united in their view that there was little to be gained from determining whether the application was caught by the transitional provisions and thus fell to be determined under s 57 of the Sentencing Act or remained to be determined in accordance with s 23 as the content of s 57 was not materially different to that of s 23.[2] In either instance this Court may order that a person to whom s 24/s 57 applies (and they both apply to the same classes of offender) be detained in custody until further order if satisfied that the order is appropriate. In what follows unless otherwise stated expressly I refer to the relevant statutory provisions contained in the Sentencing Act.
[2] The only difference, which is of no consequence to these proceedings, is that under s 57(5) of the Sentencing Act an interim indeterminate detention order may be made whereas there is no power to make an interim indeterminate detention order under s 23 CL(S)A.
Recently the Sentencing Act was amended by the Sentencing (Release on Licence) Amendment Act 2018 (SA) (the Amendment Act). Whilst s 57 was not amended s 58 was in a manner which, as will be seen, is relevant to the exercise of the discretion conferred by both s 57(7) of the Sentencing Act and s 23(4) CL(S)A. The Amendment Act also amended the Sentencing Act by inserting additional transitional provisions making certain that s 58 as amended applied to an application for release on licence made by a person indeterminately detained under either s 23 or s 57.[3] I return to this below.
[3] Sentencing (Release on Licence) Amendment Act 2018 (SA), s 10.
Section 57(3) of the Sentencing Act provides that if a person has been convicted of a relevant offence, the Attorney-General may, while the person remains in prison serving a sentence of imprisonment, apply to this Court for an order that the person be detained in custody until further order.[4] A relevant offence is defined in s 57(1) and includes the offence of indecent assault created by s 56(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).[5] Mr Moyle is currently serving a sentence of imprisonment for four months and one week for aggravated indecent assault. He is, therefore, a person who has been convicted of a relevant offence within the meaning of s 57 and remains in prison serving a sentence of imprisonment. He is then a person in relation to whom the Attorney-General is empowered to make the present application. As much is not disputed. What is disputed and what calls for determination is whether Mr Moyle is unwilling to control his sexual instincts and, if he is, whether the discretion vested in this Court to make an order that he be detained in custody until further order should be exercised.
[4] Previously s 23(2a) CL(S)A.
[5] Previously s 23(1) CL(S)A.
For the reasons that follow I decline to order that Mr Moyle be detained in custody until further order.
Material Received
On the hearing of the application I received the following:
·Affidavit of Ms C Nolan sworn 15 September 2017 (exhibit P1);
·Affidavit of Ms C Nolan sworn 5 June 2018 (excluding exhibits CN3 and CN4) (exhibit P2);
·Affidavit of Mr C Sim affirmed 7 June 2018 (exhibit P3);
·Documents subpoenaed from the Royal Adelaide Hospital, Central Adelaide Local Health Network (exhibit P4);
·Psychiatric report of Dr O Haeney dated 10 February 2018 (exhibit P5);
·Psychiatric report of Dr P Lim dated 28 December 2017 (exhibit P6);
·Psychiatric report of Dr C Raeside dated 26 May 2018 (exhibit D7).
In addition Drs Haeney and Lim, both forensic psychiatrists, were called by counsel for the Attorney-General to give evidence supplementing their reports. They were each cross-examined by counsel for Mr Moyle.
Mr Moyle did not give evidence. He tendered a psychiatric report prepared by Dr Raeside who is also a forensic psychiatrist. Like Drs Haeney and Lim, Dr Raeside was called to give evidence supplementing his report and was cross-examined by counsel for the Attorney-General.
Mr Moyle’s Personal Circumstances
Mr Moyle was born in July 1971. His parents separated when he was three years old. His last contact with his father was as a 14 year old. He has no childhood memories of his father. Mr Moyle’s mother is a Kokatha woman and he identifies as an Aboriginal man and member of the Kokatha people despite not having had much contact with the maternal side of his family.
Mr Moyle has described his mother as “the best” and as being “always there for me”.
Mr Moyle has one sibling, a sister, three years his elder. As a young child Mr Moyle lived at Taperoo with his mother and sister and next door to his aunt. The family faced considerable financial difficulties with the consequence that Mr Moyle’s mother was forced to work long hours and Mr Moyle was largely left to his own devices.
After separating from his father Mr Moyle’s mother had two violent partners. Mr Moyle both witnessed and experienced violence meted out to his mother and himself. He has reported protecting his sister from such violence. He has stated that he had a good relationship with his sister and that despite his problems she tries to help him out.
Mr Moyle has referred to himself as the “black sheep” compared to his sister who was a good girl and “got everything”. What he got, he said, he stole. Whilst he had a good relationship with his sister he has not been in contact with her since his mother died in 2000 after being hit by a car driven by a drunk driver. Mr Moyle enjoyed a close relationship with his mother and felt anger and hatred towards the offender.
Mr Moyle attended Taperoo Primary School and Taperoo High School. He disliked school and complained that teachers did not explain information clearly to him. He was regularly absent and often ran away from home. He was angry and began stealing, initially from teachers’ purses. He was expelled in year eight after throwing a black board at a teacher while intoxicated. While at school he was disruptive, repeatedly used foul language, and was aggressive to other students. After being expelled from mainstream schooling, he was enrolled at Bowden Brompton Special School. He quickly stopped attending. Despite all this he can read and write reasonably well.
Mr Moyle starting drinking alcohol when he was 11. He reported drinking until he lost consciousness. He commenced smoking cannabis with friends around the age of 12. By 15 he was injecting methylamphetamine and abusing prescription drugs including Rohypnol which he was prescribed after pretending to his doctor that he had back pain. At 17 he began using heroin. He became addicted and soon resorted to crime to feed his habit. It was at that same age that he was first imprisoned. Mr Moyle has said that some of the armed robberies of which he has been convicted were committed under the influence of heroin. He came to realise that on heroin he was “too violent” which lead him to cease using the drug.
Twelve years ago Mr Moyle first began to use Ice which made him feel paranoid. Despite this he reported “using lots”. Ice and ecstasy, he told Dr Lim, increased his libido. He has continued to use illicit substances whilst in prison. Dr Raeside records:
… He has also used drugs in custody, primarily cannabis, and at times has smoked buprenorphine (Suboxone, that he presumably got from other prisoners as it is sometimes prescribed as an opiate replacement). He said he asked for the methadone program, but “they are not willing to help”. He asked a community visitor to try to help him get on the program, adding, “That’s why we always fuck up because we can’t get the help we need”.
Seemingly pointing to the unfairness of it, he acknowledged that when he was younger he “never asked for help, but now I’m near 50 and I need help”. His comments were consistent with a lifelong pattern associated with his Antisocial Personality Disorder in which he would externalise blame for his actions on the basis that he either did not receive help, or circumstances made him act in a certain way. His level of accepting responsibility was limited to asking for help, but then complained when others would not provide what he thought was necessary. This also needs to be seen in a context of him having very little regard for authority, rules, or regulations; also part of his Antisocial Personality Disorder in addition to his significant psychopathic personality traits.
As for his use of alcohol, Dr Haeney records:
Mr Moyle recognised significant problems with drugs and alcohol. In response to a question about alcohol he told me, “I love it”. He said that upon release from prison “the first thing I do is go to a football club and have a few bourbons or vodkas and put $50 in the pokies”. He said that when he drinks, he does so “to get smashed”. He would regularly drink upon waking and have a few cans before he left the house, often in conjunction with Ecstasy or cannabis. He would often go out with cans of bourbon as well. He said he does have days when he doesn’t drink, usually when he has no money to do so. …
From age 13 Mr Moyle was in and out of boys’ homes or in the care of foster parents after intervention by the Department of Community Welfare. He frequently absconded, often to return to his mother’s home. In his interview with Dr Haeney Mr Moyle:
…described the children’s home as “fun” and “easy”. It did not help to change anything, however. He said that he had spent much of his adult life in prison and had “stayed an arsehole, a criminal”. He said if he had received the help he clearly needed he would not be here today. He said it was similar whenever he was released from prison. He believed he received no help and therefore ended up breaching orders or reoffending. He told me this had led him to think that he would rather serve the whole of his sentence in prison so when released he will not be on parole and cannot be breached. He did not think he could deal with any more time in prison.
At age 17 Mr Moyle set himself on fire whilst remanded in the Adelaide Remand Centre. He told Dr Haeney that staff would not let him in a cell with a friend so he did it to prove a point. At age 23 he attempted to electrocute himself by attaching wires to his handcuffs and standing in water. He did this because he felt angry at his treatment by staff. He described this act as “silliness” rather than attempted suicide. In 1994 Mr Moyle was admitted to James Nash House suffering suicidal ideation after his cousin committed suicide in the cell next to him at Yatala Labour Prison. He was prescribed anti-depressant and antipsychotic medications but ceased taking the medication after a short time. Dr Raeside notes that he received no mental health follow up.
Mr Moyle was diagnosed as suffering a conduct disorder as a child. As an adult that disorder has transformed into a diagnosis of his possessing an Antisocial Personality Disorder marked by a low tolerance of frustration and a low threshold for aggression and violence. None of the psychiatrists who prepared reports on Mr Moyle for the purposes of the present application detected any sign of his suffering any thought disorder or mental illness. He has not been diagnosed as suffering any formal psychiatric illness despite the two incidents of attempted suicide and his past admission to James Nash House. He is not presently prescribed any psychiatric medication. In his report Dr Raeside refers to Mr Moyle seeking the assistance of Dr Brereton, a forensic psychiatrist, regarding anxiety about returning to the community. Dr Raeside observed:
I note the letter from Dr Brereton to Mr Moyle’s community corrections officer, 7/10/09, in which he notes the longstanding diagnosis of Antisocial Personality Disorder “marked by a low tolerance to frustration and a low threshold for discharge of aggression and violence”. It appears that initially in prison he was prescribed Olanzapine (an antipsychotic, but in this case used for its sedative and anxiety reducing effects). The Olanzapine was not beneficial and Mr Moyle did not want to engage in any ongoing therapy to explore his psychological difficulties and resulting aggressive behaviour. Dr Brereton notes, “He has never been able to internalise this or put alternative coping strategies into practice”. He considered Mr Moyle “remains a high risk of aggression and violence as a result of his personality” but he did not have any signs or symptoms of a mental illness.
Mr Moyle has given inconsistent accounts of his being sexually abused as a child. In his most recent interviews with Drs Lim and Haeney he denied being sexually abused as a child. Dr Raeside noted that he lost his virginity at the age of 14 with a 37 year old woman who was married to his employer at the time. Dr Raeside noted that this relationship would be classified as illegal, if not abusive.
In 1998 Mr Moyle told Mr Fugler a forensic psychologist that when he was ten he was molested by an adult male who later gave him money for sexual favours. No further detail of the abuse was provided, but Mr Fugler noted that Mr Moyle had stated that he had not been bothered by it. Mr Moyle subsequently reported flashbacks, anger, past thoughts of causing physical harm to the perpetrator, anxiety, feelings of worthlessness and self-destructive behaviour. In his recent interviews with Drs Lim, Haeney and Raeside he expressed hatred for rapists and child molesters.
In 2004 and 2006 Mr Moyle told psychologists preparing reports for the Department of Correctional Services that during his stay at the boys’ home he was harassed by another male of the same age for oral sex. At first he refused but eventually gave in. He has also reported that a man who lived across the road from his home “tried” to “molest” him. He said that the man was “a bit mentally retarded, so I can’t blame him”. In another interview, he said they got drunk and he “tried to suck my cock and I pushed him off.”
Mr Moyle reported that he commenced masturbating at approximately 12 years of age. Dr Lim reports:
He started masturbating from his early teenage years and this increased in frequency when he was in boys’ homes. He masturbated twice a day to sexual fantasies which incorporated females in his environment. Mr Moyle admitted that he started masturbating in front of others in boys’ homes from the age of 12. He did it because he was “bored” and justified it by stating that the staff used to watch them showering in the communal bathroom anyway. The first time he masturbated in the shower, staff and other boys in the home “all had a laugh”, so he continued doing it for the perceived entertainment value. He denied feeling sexually aroused when he had an audience but had no difficulties achieving an erection in full view of others. Mr Moyle claimed he stopped masturbating in public when he discovered girls and did not need to “jerk off” anymore.
There is no evidence that Mr Moyle enjoys or uses pornography of any kind. In fact he has stated that he does not enjoy pornography and whilst he is interested in sadomasochistic sexual practices, is not interested in pornography featuring sexual violence, bondage or rape. He has advised that he continues to masturbate but less frequently than usual – once a month. His current sexual fantasies, he says, include previous girlfriends and female prison officers and staff members.
As to relationships, in his recent interviews with Drs Lim, Haeney and Raeside, Mr Moyle reported having six significant romantic relationships. Most, he concedes, revolved around drugs and sex. In the late 1990s however he had a relationship that lasted for five years with an ex-officer at Port Augusta prison whom he described as not being like the other girls. He said that the relationship began after she ceased working for the Department of Correctional Services but described a good friendship whilst she worked at the prison. One of his escapes from prison followed an argument with this woman and he explained his escape on the basis that he “needed to give her some lovin’”. The relationship ended after his repeated incarceration. It does not appear that he has had any significant relationships since and is not presently in a relationship. Mr Moyle does not have any children.
Over the years Mr Moyle has been consistent in his reports that he is attracted to females “a bit older than him”. He has also consistently stated that he is aroused by sadomasochistic sexual practices but only where consensual. He has not undertaken any sexual offender treatment and in particular has refused to participate in the Sexual Behaviour Clinic program whilst in prison. His objection to undertaking the program lies in the fact the he would be required to associate with sex offenders who as a class he despises. Consistent with this view, Mr Moyle has repeatedly stated that he is not a sex offender and cannot understand why the current application has been made. In his interview with Dr Lim he was adamant that indecent exposure and masturbating in public did not constitute sexual offences because he did not rape or hurt anyone. He felt aggrieved because “paedophiles are let out and I’m not even a sex offender.”
Antecedents
Mr Moyle first came into contact with the criminal justice system in April 1985 as a 14 year old. Since then he has become well-known to the criminal courts of this State, having spent all save approximately three of the last 28 years in prison.
At 14 Mr Moyle entered his first good behaviour bond after being found guilty of nine counts of larceny, two counts of illegal interference with a motor vehicle and one count of building break and larceny. Three months later he was imprisoned for the first time after being convicted of armed robbery. Two other armed robberies and one count of carrying an offensive weapon were dealt with without conviction.
By the end of 1985 Mr Moyle had thrice more been before the Children’s Court, primarily for numerous dishonesty offences. Whilst many of the offences were dealt with without the imposition of a conviction he also received a further eight months imprisonment.
In 1986 Mr Moyle was before the Children’s Court on five occasions, again primarily for dishonesty offences. Many of the offences were dealt with without conviction and without penalty. He was however the subject of three good behaviour bonds.
In 1987 and 1988 Mr Moyle was regularly before the courts for offences ranging from unlawfully being on premises, resist police, building break and felony to possessing house breaking implements, possessing cannabis, disorderly behaviour and assault police. Again his offending was largely dealt with primarily without conviction, but he was imprisoned for four months in August 1988 for the offences of illegal use of a motor vehicle and common assault.
This pattern continued from 1989 through to 1992. Property and dishonesty offences were many and seemingly unceasing. Arson joined the list of property offences and Mr Moyle began to engage in more serious offences against the person. It is also during this period that Mr Moyle committed his first escape from prison. From the sentences imposed it is apparent that the courts had lost patience with him. Sentences of imprisonment became the norm. The accumulation of those sentences is, no doubt, the reason why Mr Moyle does not appear in the criminal courts in 1993.
In 1994 Mr Moyle was sentenced to imprisonment for eight years and seven months for armed robbery cumulative upon sentences of imprisonment imposed for two counts of larceny, two counts of driving whilst disqualified and one count of carrying an offensive weapon. A non-parole period of six years was fixed.
In 1995 Mr Moyle was sentenced to imprisonment for common assault. In 1996, for a second escape from custody, and in 1997, for damaging property and offences of violence including wounding with intent to do grievous bodily harm. On 21 July 1997 he received a head sentence of nine years and one month imprisonment backdated to 28 July 1994. In December 1997 Mr Moyle was sentenced for a second offence of wounding with intent to cause grievous bodily harm to five years imprisonment with a non-parole period of three years and six months. That sentence was to run cumulative on that imposed on 21 July 1997. In sentencing Mr Moyle, Millhouse J explained the circumstances of the offending as follows:
Jason Scott Moyle: you have pleaded guilty to wounding with intent to do grievous bodily harm. It happened in the Port Augusta gaol. Both you and the victim were inmates. You believed that Milera had indecently interfered with the daughter of your uncle. Although his misconduct had been reported, the authorities took no action: no charges were laid. You decided to take the law into your own hands when Milera came to the gaol.
Two or three weeks after he arrived you managed to get hold of a knife. On a stairway you stabbed him several times. He was severely injured but fortunately has now recovered…
When in October 1998 Mr Moyle was sentenced for his third escape from custody the total period of imprisonment he was to serve amounted to 17 years, seven months and eight days with a non-parole period of 11 years, four months and one day commencing on 22 July 1994.
In 1999 Mr Moyle escaped a fourth time being recaptured as a result of a heroin overdose which left him with permanent disabilities. He received a further 16 months imprisonment and his non-parole period was extended to 12 years and one day. A common assault in 2003 saw Mr Moyle’s total period of imprisonment increase to 19 years five months and ten days. His non-parole period of 12 years and one day commencing 21 December 1993 does not appear to have been extended.
It appears that Mr Moyle was released sometime in 2006. In the first half of 2007 he was sentenced on two occasions for carrying an offensive weapon. He was fined on the first occasion and imprisoned on the second. These offences were obviously committed whilst he was on parole.
Between 2009 and up to his commission of two counts of indecent behaviour in July 2012 Mr Moyle spent time in the community. In that same period he appeared frequently in the Magistrates Court primarily for breaching bail agreements. On most occasions his offending was dealt with without a conviction being recorded.
I do not know to what extent he served any time in custody during this period as a consequence of action taken by the Parole Board.
Below I deal in detail with the two counts of indecent behaviour committed by Mr Moyle in 2012 and for which he was sentenced in 2013.
In December 2013 Mr Moyle was sentenced to four years and six months imprisonment with a non-parole period of two years and nine months for one count of aggravated serious criminal trespass and dishonestly taking property. Mr Moyle entered a private residence at around 3 am in company with another man. The victim woke to find the other man in her room and screamed. Both men ran from the house but were located nearby in possession of a beanie, a torch and an Ipod Touch stolen from the premises. In sentencing Mr Moyle the Judge, having regard to Mr Moyle’s prior offending, said, “I am sure you realise that the time has long passed when you can expect leniency from a court particularly for a serious offence such as this.” The Judge considered Mr Moyle’s prospects of rehabilitation linked to his abstaining from the use of drugs. The offending was motivated by the desire to obtain items of property that may be readily sold for cash with which to buy drugs.
In 2016 Mr Moyle was sentenced, as mentioned, for one count of aggravated indecent assault, the period of imprisonment presently being served. Again I deal with the details of that offending below.
Relevant to an appreciation of Mr Moyle’s recidivism is the length of time he has spent in custody as opposed to the community, and his not having had the benefit in the past of participation in any re-socialisation program. In this regard Dr Raeside records:
Mr Moyle complained that he had not had any resocialisation programs in the past, acknowledging that this had been a major focus of previous concerns about his risk of offending in the community. He reported that he had often been released without any assistance in order to help him once he was back in the community and, not surprisingly, struggled considerable (sic). He said, “Each time I’ve been released it has been from a maximum security prison into the community and I just don’t know how to conduct myself. I don’t even know how to use an ATM with the decimal point or how to order stuff in shops.” He referred to having spent a total of about three years in the community in the last 30 years when he first went to adult prison at the age of 17 in 1988. The longest he had been in the community for any single period was only three months. He acknowledged that he would “get into trouble straightaway, particularly after the police find out where I am and harass me”. He understood that he currently had a sentence plan that involved going to Port Augusta Prison and then the cottages, but he said this had never been offered to him. Probably because of his maximum security status in part due to having three previous successful escapes.
Sexual Offending
As mentioned Mr Moyle is presently serving a sentence for aggravated indecent assault committed on 14 January 2016. The circumstances of the offending are detailed in the police apprehension report as follows:
CW is the victim and is employed by South Australian Prison Health Service and works in the capacity as a Registered Nurse. At about 1.15pm on the 14th January 2016, she was working at the Port Augusta Prison in the Health Centre. The accused was awaiting treatment and the victim approached and asked him to enter the treating room. Victim closed the door to the treatment room and had a conversation with the accused and established he did not require a physical assessment. The accused asked the victim to take his blood pressure, the victim declined and asked him to leave. The victim opened the sliding door and stood next to it. As the accused exited the room he placed his right hand onto her left shoulder and moved the same hand down and tapped her left buttock. [He] said “You naughty girl you”. The victim did not respond as it happened so quickly, she was upset, anxious, shocked and did not know what to do.
In interview at Port Augusta Prison following the assault, Mr Moyle admitted to smacking the victim on the buttock but denied saying “you naughty girl you”, instead positing that he said words to the effect of “have a good day”. He described her as having a “big African booty”. He acknowledged that his behaviour was stupid and wished he had not done it. He said that he was having a joke and a laugh with the nurse prior to the assault. In sentencing Mr Moyle the Magistrate accepted that his offending was not “the worst example of an offence of this kind”. In his interview with Dr Lim Mr Moyle stated that he thought the sentence of four months imprisonment was unfair because he held no sexual intention, “It’s a sex act if you mean it; I didn’t mean it.”
On 23 December 2013 Mr Moyle was sentenced to one month imprisonment suspended on his entering into a $200 bond to be of good behaviour for two counts of indecent behaviour. As to count one, he was observed by a 21 year old female masturbating on a train arriving at Adelaide Railway Station. He lay back with his legs open and used his right hand to masturbate his erect penis. He was observed for approximately one minute before the witness got off the train. She described running all the way to work where she cried for approximately 30 minutes, feeling violated and sick to her stomach.
Ten days later Mr Moyle was again on board a train at Adelaide Railway Station. He was staring at a 36 year old woman making her feel uncomfortable. She noticed he was moving his hand up and down through the reflection in her window. Confused and concerned for her safety she looked towards him and observed that his pants were pulled down exposing his penis and testicles. She described Mr Moyle being unfazed by her watching him. He continued to stare at her. Mr Moyle was identified boarding the train on CCTV footage. He was sitting out of view of the camera at the time of the offending but the witness could be seen moving away from her seat.
In sentencing Mr Moyle for the offences the Magistrate said:
Mr Moyle, you have appeared before me a number of times over the years. This offending is out of character for you in terms of your usual type of offending. Not surprisingly drugs played a part. In fact I am sure that had it not been for your consumption of drugs you would not have behaved in this disgusting manner.
I note the girl in count 1 was terrified and upset and count 2, perhaps not to the same extent, but upset and frightened.
In subsequent interview with Dr Haeney Mr Moyle said he had no memory of either of the incidents on the train, noting he was heavily intoxicated by drugs. However he acknowledged, “I can’t see [the victims] making it up”. When speaking to Dr Lim he was adamant that he had only masturbated publicly on a train once. He said he was intoxicated after going on a five day Ice and ecstasy binge. He claimed he did not realise he was on a train and thought he was at home. He denied that masturbating in public sexually aroused him.
Bearing this in mind I note, however, that over the years Mr Moyle has received a number of reprimands while in prison for inappropriate sexualised behaviours. The allegations against Mr Moyle have been documented by the Department of Correctional Services in case notes and internal officer incident reports. That material can be summarised as follows:
Date Note 31.12.90 Officers’ Report Form: …inmate Moyle was engaged in a non-contact visit with his girlfriend, Miss A. Bates. I observed Moyle to lean back on his chair. When I stood up from where I was seated, I saw Moyle masturbating his penis in the presence of his girlfriend. 04.06.91 Officers’ Report Form: …Prisoner Moyle stepped out of the shower cubicle in a state of undress, turned towards me, looked directly at me, placed his hand on his penis and proceeded to masturbate… 28.11.94 Officers’ Report Form: I looked into cell 35 to locate Prisoner Moyle. I saw him laying naked on his bed, uncovered and he was masturbating his penis. As I had already given the unit a wake up call a few minutes before entering the wing; Moyle would have been aware of my presence.
Warned and cautioned due to past history of same offence.
23.01.95 Case note: Moyle was reported for walking along East Wing with no trousers or underpants on.
Date Note Notice of Charge – Breach of Regulations: …behave in a disorderly manner [on 23/01/1995] or cause unreasonable disturbance or annoyance to another person namely officer H…by exposing yourself and your genitalia to all in vicinity of east wing. 23.06.95 DCS Notice of Charge – Breach of Regulations Form: Sexually harass Ms K in the Education Centre by exposing your penis in her presence…
Statement of Ms K: … “In the library at the Education centre….while I was busy explaining and writing I became conscious of Jason MOYLE squirming on his chair. I looked over at him and saw that he had exposed his penis. Shocked, I made an excuse about [it] being time for coffee and hastily made my way into the office where I did book work for the remainder of the session. I did not wish to venture out and have to face MOYLE again….”
April 1996 Case note: Spoken to re: exposing himself to female officers. 1st and last warning. Told action will be taken next time. Reminded of seriousness of actions. (Has done this to myself once before). 28.06.98 Case note: Reported for masturbating. 28 days loss of privileges. (in Public Place) 29.06.98 Officers’ Report Form: …I noticed Prisoner Moyle #61357 on the North side telephone. As I looked towards him I realised he was masturbating towards me. 03.07.98 Case Note: Moyle escaped from Mobilong Prison … concealed within rubbish tractors in company of PG. Moyle’s behavior prior to escaping was unacceptable including masturbating out in the unit dining room while on the phone. Moyle faced a Managers hearing on 29/6 for this offence and was placed on 28 days early lock up and loss of TV for 28 days. 15.12.99 Minute from Social Worker to DCS: On Tuesday 14 December 1999 at approximately 13.50 hours, I went to interview a client in B Lower East and remained interviewing this client until approximately 15.00 hours…
Shortly after I commenced the interview, I saw Jason Moyle (#61357) go to the shower room which was visible from where I was sitting. I noticed that he remained near the doorway of the shower room with his clothes on and did not turn the shower on, I then noticed that he was masturbating, from which time I attempted to avoid looking directly at him and continued trying to focus on interviewing my client.
Although I have not reported such behavior previously, I have witnessed Jason masturbating on a previous occasion in the Education section. I am also aware that a staff member, then working in Education, had lodged a complaint for similar behavior and as far as I can determine Jason was not seriously reprimanded and was merely asked to wear jeans (rather than shorts) when attending Education in the future….
15.12.99 Case note: I have placed Jason on a restricted wing regime as he, once again, masturbated intentionally in full view of one of the female professional visitors to the Unit. Report and Change of Regime are in his case file.
28.06.01 Case note: I warned Jason today in regard to exposing himself and masturbating outside the window of my office in the Education Centre. I informed Jason that his behaviour will not be tolerated and he will find himself transferred to YLP if this type of behaviour does not stop. He apologized and stated that it won’t happen again. 09.07.01 Case note: On 30th June 2001…As I was counting north wing I overtook co F and the medic (whom were issuing medication), when I reached cell #10 I observed Prisoner Moyle masturbating. I believe Prisoner Moyle was hoping he would be seen by someone female and was a little embarrassed being caught by myself as he expressed surprise and tried to cover up. F was advised and I continued to count…north wing to avoid any situation Moyle may want to occur.
DCS Internal Email dated 10 July 2001: I spoke with Mr Moyle this morning regarding his inappropriate behavior in front of female staff (Masturbating). Allegedly he has now done this on three occasions. I have received conclusive evidence of two.
23.04.02 Case note: Moyle reported for allegedly exposing himself to the canteen staff this afternoon. Manager Units….informed of his action. 08.04.05 Case note: Prisoner Moyle was spoken to… regarding his indecent behaviour in an open area. Jason was very emotional when he apologized and stated he did not know why he had done this. Jason also apologized to staff members who had seen this act. Jason was informed by the unit manager that any occurrence of this would result in a change of placement. 07.09.05 Case note: Under investigation for allegedly flashing himself at a female staff member of corrections. Spoken to by Unit Manager Parkinson. 25.05.10 Incident report: CO…was waking past Prisoner Moyle ….when she heard Moyle say loudly “now that’s a nice arse”. Also alleged he had made no less than three attempts of physical contact by “brushing past”. Corrections officer declined to make a complaint to SAPOL. 09.09.12 Case note: Spoke to Moyle about sexual comments made indirectly but loud enough for a female unit officer to hear. He was told that if it happened again he would be given a regime change. 07.11.12 Incident Report: Mr Moyle was observed by Miss D and Miss S making inappropriate sexual gestures in the association area of Unit 3 alerting other offenders present to his inappropriate behaviour. 21.04.16 Case note: During the evening patrol Mr Moyle was being a deliberate exhibitionist and masturbating on top of his bed in full view knowing the patrollers were female. Moyle is known for these type of antics with female officers.
There have been a number of other historical Incident Report Forms provided to this Court detailing Mr Moyle’s disorderly behaviour while in prison, including threatened and actual assaults of a violent nature to staff. Approximately twelve of those reports concern incidents in 1990. Another eight concern incidents in 1991. A further handful detail incidents from 1991 to 1998.
There are also further reports that Mr Moyle has returned numerous positive and negative drug tests while incarcerated. However there is no evidence that his drug use in prison is linked to his sexualised behaviours.
In her report Dr Lim records:
Mr Moyle told me that he started masturbating in front of others when he was in a boys’ home. He did not consider this to be a sexual act. Initially he said that he did it out of boredom and stopped completely when he had girlfriends. When asked why this behaviour continued in prisons, he justified it by stating that he was bored and it was not his fault if female officers walked past his cell when he was masturbating. I pointed out that he was reportedly exposing himself to female staff outside of his cell. He indicated that the officers must have been lying and he did not remember.
He knew that it was wrongful to masturbate in front of non-consenting people but was adamant that such behaviour would not progress to rape. He added, “I would have done it by now if I was going to do it. Jerking off in front of women is degrading to them, I know it’s wrong, but I get bored”. When asked what he would do if he was bored in the community, he said he would simply look for a woman or get a prostitute.
Mr Moyle was admitted to the Royal Adelaide Hospital on 6 February 2018 with an injury to his left hand that required surgery. The Attorney-General tendered the Hospital’s file. The notes contained in that file record that on 13 February 2018 two members of the nursing staff observed Mr Moyle ““vigorously” playing with himself.” The matter was reported to the guard watching over Mr Moyle. The guard informed the Department of Correctional Services. On 14 February 2018 a Correctional Services Officer attended the hospital and spoke to Mr Moyle. He was warned that he risked being four point shackled to his hospital bed if his inappropriate behaviour continued. At the time he was three point shackled. On 15 February 2018 the nursing notes record that early that morning Mr Moyle flashed his genitals at a nurse and was observed “playing with himself under the sheets.” On 16 February 2018 it is recorded that Mr Moyle was again observed masturbating. The notes state that the guard was not prepared to stop Mr Moyle.
Mr Moyle was discharged on 22 February 2018.
Psychological Treatment and Assessment by the Department of Correctional Services
As mentioned this Court has received numerous case notes and incident report forms concerning Mr Moyle’s misbehaviour while in prison. Prior to 2004 the focus of such material was, understandably, primarily on Mr Moyle’s tendency to commit acts of violence.
On 16 August 2004 a report was prepared by Ms J Yates, a forensic psychologist employed by the Department. Ms J Yates interviewed Mr Moyle in April of that year for a comprehensive psychological assessment to determine his risk of reoffending, criminogenic needs and to develop a treatment plan. Ms Yates set out Mr Moyle’s extensive history of violent offending and personal circumstances in terms not materially different to that set out above. At the time of the assessment he reported daily suicidal ideation.
In the interview Mr Moyle reported that early on in his incarceration he was “running amuck” in prison. Ms Yates noted numerous incident reports on the Correctional Services’ database from 1990-2003 for verbal abuse, arson, physically abusive behaviour and having contraband items. In discussing the reports of his sexualised behaviours while in prison, Mr Moyle explained that he wanted people to look at him, “[it’s] good to be watched”. He said that his arousal was increased when the likelihood of him being caught was increased.
Necessarily the report was prepared before Mr Moyle had committed any sexual offences. He explained that he would never offend in a sexual manner because he had access to women in the group he socialised with.
Ms Yates noted that Mr Moyle had completed an anger management course twice, a victim awareness course twice and a therapeutic intervention course once.
She administered the “PCL-R scale”, a scale assessing the psychopathy of males to provide information relevant to their risk of violent reoffending. Given Mr Moyle possessed a number of static risk factors (his extensive and varied criminal history beginning as an adolescent and including violence) as well as dynamic risk factors (such as substance abuse and lack of employment history) he was assessed as being at high risk of reoffending. She then administered the Sexual Violence Risk-20 scale for future sexual violence. That scale assesses three areas; psychological adjustment, sexual offences and future plans. Mr Moyle was assessed to be at high risk of sexual recidivism. Ms Yates noted that Mr Moyle’s high score on the PCL-R, past violent, non-violent and non-sexual offending, and his attitudes which support sexual offending, also determined his high score. She explained:
A judgment of high risk suggests (according to Boer et al., 1997) that there is an urgent need to develop a risk management plan for the individual, which at a minimum would involve advising staff, increasing supervision levels and placing the individual on a high priority for treatment resources. Although Mr Moyle has not been charged or convicted with a sexual offence in the past, his current behaviour whilst incarcerated (exposing himself and masturbating in front of female staff and visitors) is indicative of sexual deviation. That is, he has demonstrated a stable pattern of deviant sexual arousal (i.e arousal to inappropriate stimuli), which places him at a high risk of sexual reoffending according to the literature on sexual offending.
Ms Yates concluded that Mr Moyle met the diagnostic criteria for Exhibitionism. She reported that as the nature of his Exhibitionism is “non-consenting” it can be considered a paraphilia. In her review of the literature on sexual recidivism, she noted that one of the strongest predictors of sexual offence recidivism “is factors relating to sexual deviance, with modest predictors from criminal lifestyle variables, personality disorders and failure to comply with treatment.” Mr Moyle was recommended to complete the Violence Prevention Program. In addition he was referred to the Sexual Behaviour Clinic for treatment “if appropriate” for the identified paraphilia (exhibitionism) and its link to possible future offending.
In 2006 Mr Moyle was referred to the Prisoner Assessment Committee for an assessment of his psychosexual functioning following “displays of inappropriate sexualised behaviour (exhibitionism) towards female members of staff within Port Augusta Prison.” Noting that Mr Moyle had never been convicted of a sexual offence the purpose of the assessment was not to quantify his risk of reoffending. The report writer, Ms M Piercey, the Deputy Principal psychologist at the Department for Correctional Services, described the interview as crude, though acknowledged Mr Moyle’s openness.
When discussing his sexual development and arousal, Mr Moyle reported that he was masturbating approximately once or twice a week, which he remarked was less than six years earlier when he masturbated every morning. He told Ms Piercey that he believed he had a stronger sex drive compared with other men because he had been locked up in prison. He denied that he would be more likely to think about sex if he was angry or upset, saying he “would just want to bash their heads in.” He said that if he became “sexually wound up” he would take drugs or masturbate to gain relief.
Under the heading “Exhibitionism” Ms Piercey discussed Mr Moyle’s motivations for exposing himself to female staff:
Exhibitionism
Mr. Moyle was asked about his exhibitionism. He reported that he has been exposing to himself to women since the age of 12 during his stay in boys’ homes. He reported that he engages in the behaviour when he feels bored. He also said that it allows him to experience feelings of excitement. Mr Moyle reported that whilst exposing himself to female staff in the prison, he thinks to himself: “I wonder if she’s going to come over here and start sucking me off” and becomes sexually aroused.
A general theme arose within the assessment sessions that involved Mr. Moyle’s interpretation of female behaviour in relation to his exhibitionism. He reported for example, that during his early adolescence, whilst he was living in the children’s home, female members of staff would be dressed in clothing that would allow him to see their breasts and he would often think that they (sic) attempting to “tease” the boys (“… they would come in with their titties hanging out and their short dresses…even my swimming teacher used to lie there in her black swimming costume…”). He said that the swimming teacher used to “let” him “blow bubbles into her fanny… I did it and she didn’t tell me not to.” Mr. Moyle also commented on the most recent incident whereby he was accused of exposing himself to a female member of staff at PAP. He reported “Yes, that bitch who said that I flashed my dick…I don’t know who it was... if it’s the person who I think it was, it’s because I didn’t pay her attention in a sexual way…she wore hipsters in the canteen and I didn’t get her to bend over like the other prisoners do…so she gave me daggers because I didn’t look at her…” Mr. Moyle said that he believes that the officer now “bates” him “by “pulling her pants up” so that he can see the outline of her genitalia.
Mr. Moyle said that if he exposes himself to a female officer, and she watches him without informing others of the incident, he will then repeat the behaviour to the same member of the staff of another occasion. He indicated that if the incident is reported by the female member of staff, he would feel angry and perhaps incorporate details of the incident into his fantasies (e.g. “You’ve been a naughty girl for telling on me, now I’ll have to spank you”), but would he not repeat the behaviour on a separate occasion. Mr. Moyle was asked why he thought that his inappropriate behaviour was sometimes not reported, to which he replied: “…because of my past violence, perhaps this is why they don’t tell me to stop…maybe they’re afraid.”
Mr. Moyle had recently changed his job within the prison which meant that he was spending less time on the unit around female staff members. He said that the increased duties of his new job (leading him to be busier and more focused, as well as the reduced contact with female members of staff) meant that he was less likely to expose himself.
Mr Moyle later explained that if granted parole, he was not concerned that he would want to expose himself in public because he would seek out female company.
As to his interpersonal relationships, Mr Moyle described a reluctance to approach women if he wanted sex. He preferred to wait for a woman to approach him or to approach an old girlfriend. He denied that he became sexually aroused by movies that portray death, horror, murder and mutilation but described vividly violent dreams which at times were sexually arousing. In acknowledging that he was an angry and violent man, he noted that he is not the same since a drug overdose in 2000.
At the end of the interview Ms Piercey administered a 175 question self-report measure called the Millon Clinical Multiacial Inventory (MCMI-II). She said Mr Moyle’s profile was indicative of someone who exaggerated their symptomology in an attempt to describe themselves in pathological terms. She noted the profile has typically been coined a “cry for help”.
She recommended that consistency be established and maintained in relation to the reporting of Mr Moyle’s exhibitionism. She noted that “in the past, inconsistent responses to the behaviour has led to further misinterpretation from Mr Moyle’s perspective and perpetuation of the problem.” She recommended further exploration into whether a link existed between his arousal to aggression and his sexual arousal. She explained Mr Moyle’s tendency towards exhibitionism in the following terms:
Mr. Moyle’s exhibitionism serves to simultaneously reduce negative feelings (anger, boredom) and increase positive feelings (excitement, stimulation). This reinforcement maintains the behaviour so that it serves a functional purpose for him. With each successive act of exhibitionism, Mr. Moyle is also able to enrich his fantasies, which are used to fulfil the same function as his exhibitionism. Mr. Moyle’s belief that staff are fearful of his potential for violence and therefore may be less likely to report/challenge his inappropriate behaviour means that the exhibitionism is more likely to continue.
Mr. Moyle has a restricted range of coping strategies to resolve stress and negative affect. This may have been due to a combination of him not developing such responses from a young age and the length of time that he has spent in prison (which has led to a narrowing of repertoire of appropriate ways to deal with his anger etc.)
The next psychological report available to the Court was prepared in June 2008 by Mr John Cooper, a Senior Clinical Psychologist employed by the Department of Correctional Services, after referral by the Parole Board. The Parole Board requested an assessment with “particular focus on his more recent behaviour, in particular reports of his inappropriate sexual behaviour while in prison” and his abuse of drugs and risk of reoffending. Before preparing his report Mr Cooper met with Mr Moyle three times and reviewed his case notes with particular focus on the reports of Ms Yates and Ms Piercey referred to above.
As to his sexual offending, Mr Cooper observed that Mr Moyle had not displayed sexualised behaviour in the two and a half years prior to his preparation of the report:
Regarding Mr Moyle’s sexual behaviour, an examination of Mr Moyle’s case notes revealed nil instances of inappropriate sexual behaviour since September 2005. Prior to this the behaviour had been occurring quite frequently (four instances in 2005 alone). Mr Moyle indicated that such behaviour arose out of boredom. He said he recognised that such behaviour could have an impact upon his chances of release. He commented that the experience of freedom for the period of his last release had given him the incentive to work towards that again so he had refrained from repeating such behaviour, and he had also sought and received independent counselling for this behaviour while he was released on parole.
The remainder of the report focusses on Mr Moyle’s drug use and risk of violent reoffending though Mr Cooper did not want to undertake a further formal assessment of his risk of reoffending as Mr Moyle’s personal circumstances had not changed since the risk factors identified in Yates’ 2004 assessment were identified. He considered further assessment would produce “essentially the same result as was obtained previously”.
Mr Cooper’s recommendations aligned significantly with those made by Mr Yates in 2004. He recommended that while in prison Mr Moyle be engaged in a resocialisation programme incorporating introduction to employment, some tuition in independent living skills and sampling of appropriate recreational pursuits to distract him from boredom as a precipitant for drug use. He considered that this program should then be extended by his parole officer following Mr Moyle’s release on parole.
In 2009 after being released on parole Mr Moyle was referred to the Psychology Unit of the Port Adelaide Community Correctional Centre by his case management consultant “to address his criminogenic needs-criminal/antisocial attitudes-risk management-sex offending potential”. When advised that a psychological appointment had been made a Duty Officer reported that Mr Moyle was highly agitated stating that he had been seeing psychologists since he was 12 years old. He threatened to punch the psychologist if they asked him about his childhood.
Mr D Hansen prepared a report dated 3 November 2009. He saw Mr Moyle on two occasions before preparing the report. The first time on 3 June 2009 Mr Moyle arrived in a highly agitated state, pacing the width of the waiting room. He was also due for a urine screen. Mr Hansen declined to interview Mr Moyle at that time as he was of the view that he may be substance affected.
Mr Hansen then saw Mr Moyle in October 2009 for “a short time” when he was accompanied by his then partner and her child. He presented as calm with accommodation as his primary concern. Mr Hansen noted that in the intervening period on 17 June 2009 Mr Moyle had seen another psychologist at the Centre who had referred him to James Nash House noting his agitated mental state.
At this juncture I pause to note that a letter dated 7 October 2009 from Dr Brereton at James Nash House was received. It is unclear what came of the abovementioned referral to James Nash House though I note that Mr Moyle’s appointment with Dr Brereton was on 6 October 2009 just after the referral but had been arranged during his earlier period in prison.
The purpose of Dr Brereton’s report was to assess the effectiveness of Mr Moyle’s treatment with Olanzapine, an anti-psychotic medication that he had prescribed to Mr Moyle while in prison for its sedative and anxiety reducing effects. He had offered to review him for a limited time as an outpatient to assess whether or not the drug was effective. At that time Mr Moyle was residing with a partner and her child. He did not feel the drug had been of any benefit and was not keen to be prescribed medication any further.
Dr Brereton agreed with Mr Moyle’s longstanding diagnosis of antisocial personality disorder marked by a low tolerance to frustration and a low threshold for discharge of aggression and violence. He remarked that at interview he had a wide ranging discussion with Mr Moyle including violent themes but that there did not appear to be any specific individual at risk. He concluded:
During our interview he showed a very good level of insight into his psychological difficulties and resulting aggressive behaviour, however he was clear he did not want to engage in any therapy to explore this as he said he finds it extremely difficult to talk about. He also said that when he has seen psychologists in the past, he has understood and accepted what they have had to say, but has never been able to internalise this or put alternative coping strategies into practice.
Though noting that Mr Moyle remained at high risk of aggression and violence and would benefit from further psychology input, Dr Brereton was of the view that he had come to the end of exploring what medication Mr Moyle might be prepared to take and might receive benefit from. On that basis he did not make an appointment for further follow up.
I return to the report of Mr Hansen of Community Corrections prepared a month later, in November 2009. Mr Hansen noted that a meeting had been held with Dr Brereton as well as another psychologist prior to preparing his report.
Mr Hansen concluded that Mr Moyle was “antagonistic to psychology and any attempt at re-engagement with a psychological process required the building of a basic level of trust with the aim of establishing a therapeutic relationship in the medium term, perhaps several months.” He noted that with this in mind, his initial meetings with Mr Moyle were fairly brief and not confronting. It appears Mr Moyle was then returned to custody on new charges preventing further engagement at Port Adelaide Community Correctional Centre.
Sexual Behaviour Clinic Program
As mentioned, the Attorney-General tendered an affidavit sworn by Mr C Sim, the Manager of the Department of Correctional Services’ Rehabilitation Programs Branch and a registered clinical psychologist. Mr Sim is responsible for planning and implementing offending-related rehabilitation programs.
Mr Sim noted that to date Mr Moyle has not undertaken a sex offender treatment program while in prison. Despite being eligible based on internal risk assessments, Mr Moyle has been found unsuitable to attend a group based Sexual Behaviour Clinic (SBC) program due to his self-stated unwillingness to participate. It appears that Mr Moyle’s view over time has been that rather than completing programs that will assist him in applying for parole, he will complete his sentence in prison and then be released.
Mr Sim notes that in interview with a forensic psychologist in October 2016, a report of which was also annexed to exhibit P1, Mr Moyle said that he was not a sex offender and that there was no way that he was sitting in a program with kiddy fuckers and granny touchers.” Noting Mr Moyle’s attitudes to sex offenders and group based treatment programs, the Rehabilitation Programs Branch resolved that it would address Mr Moyle’s risk of reoffending through the Violence Prevention Program (VPP). Mr Sim observes that there is a significant overlap between the group therapy components of these programs.
Mr Moyle was referred to the VPP on three occasions and declined to participate. The last program in which he was enrolled commenced in March 2015. By now Mr Moyle would have completed the program had he been willing to participate.
After being served with the present application and liaising with his solicitor, Mr Moyle requested on 22 October 2017 that he be considered for one-on-one VPP sessions rather than group therapy. He asserted through his solicitor that “personal traumas” prevented him from engaging in group therapy in the past. He stated that there was more than enough time remaining on his sentence to complete the VPP.
Despite one-on-one therapy only being offered by the Department in exceptional circumstances, Mr Moyle was offered some limited one-on-one pre-group intervention to explore what Mr Moyle had described as “personal traumas” preventing him from engaging in VPP group sessions. The Rehabilitation Programs Branch also planned to provide him with additional specialist one-on-one intervention to address his risk of sexual reoffending which is not usually targeted during the VPP. Mr Moyle commenced the VPP on 16 May 2018 which is due to be completed in late January 2019 well after his sentence expires.
It is reported that he is now committed to and engaging well in the program however it is noted that the timing of his apparent change in motivation and willingness to participate corresponds with the filing of the present application. Dr Lim gave evidence expressing the opinion that the VPP would be of some use in addressing some of the factors associated with the risk of Mr Moyle committing a sexual offence in the future.
Mr Sim advises that in the community there are currently no VPP programs being offered by the Department or private providers. If released Mr Moyle will be referred to Owenia House to participate in a community based SBC program. Mr Sim also notes that Mr Moyle could receive psychological assistance through a Mental Health Care Plan from his general practitioner but adds that the frequency and intensity of that treatment in isolation would be wholly inadequate to address Mr Moyle’s risk of reoffending.
The Psychiatric Evidence
Dr Lim
Dr Lim’s report was prepared on 28 December 2017 after interviews with Mr Moyle on 24 November 2017 and 14 December 2017 totalling 130 minutes. Dr Lim concluded that Mr Moyle is unwilling to control his sexual instincts and supported the application made by the Attorney-General.
In her report Dr Lim records that in her interviews with Mr Moyle he exhibited a number of cognitive distortions including minimisation, denial and justification. He had limited empathy for the victims of his exhibitionism, considering that the victims “will get over it.” He stated that he would have stopped masturbating had he been asked.
Mr Moyle denied masturbating to fantasies of exhibitionism. He did not believe that he would encounter any difficulty once back in the community with anger management, impulse control or drug and alcohol use. When asked if he would use drugs he was evasive – “Maybe.. I can do what I like.” Mr Moyle told Dr Lim that he did not think drug use would increase his risk of re-offending.
As mentioned Dr Lim was unable to detect any suggestion that Mr Moyle suffered from a mental illness which may impair or hinder his ability to control his sexual instincts.
In arriving at her conclusions Dr Lim deployed the Risk for Sexual Violence Protocol (RSVP), a risk assessment tool developed using 22 dynamic and static risk factors that takes into account the modification of those risk factors by intervention and treatment. She noted in her evidence that this is a different tool to actuarial risk assessments based on historical predictors. The risk factors in the RSVP tool are broadly contained in five “domains”: sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability. The tool goes beyond actuarial risk assessment to incorporate guidelines on risk formulation and management. She also reviewed the material contained in exhibit P1 giving particular attention to the psychological reports prepared by Ms Piercey in 2006 and Ms Yates in 2004 to which mention has been made above.
Before turning to the criteria to be applied using the RSVP assessment tool, Dr Lim opined that Mr Moyle has an Antisocial Personality Disorder and suffers from Exhibitionistic Disorder:
Mr Moyle’s childhood conduct disorder has evolved into an Antisocial Personality Disorder in adulthood, as characterised by: repeated failure to conform to social norms with respect to lawful behaviours, impulsivity, low threshold for discharge of aggression, reckless disregard for the safety of others, lack of remorse and tendency to blame others.
Mr Moyle’s pattern of sexual misconduct would fulfil the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) criteria for Exhibitionistic Disorder. This is characterised by “over a period of at least six months, recurring intense sexual arousal from the exposure of one’s genitals to an unsuspecting person, as manifested by fantasies, urges or behaviours. The individual has acted on these sexual urges with a non-consenting person.” It would appear that Mr Moyle has exhibited such behaviours more frequently within institutions (prisons and boys’ homes) compared to the community. It is unclear if this is reflective of the actual frequency of such behaviours or whether they are more likely to be reported in institutions.
In cross-examination counsel challenged Dr Lim’s application of the diagnostic criteria for Exhibitionistic Disorder:
QIs part of the definition of exhibitionistic disorder that a person obtains intense sexual arousal from the exposure of their genitals to an unsuspecting person.
AYes.
QDo you have any evidence that Mr Moyle obtained intense sexual arousal from incidents of masturbation in public or in custody.
AYes, the fact that when he continues masturbating, had no problems achieving an erection, especially when people were watching him, that would suggest that he was sexually aroused.
QIt might suggest he's sexually aroused but that's just normal sexual arousal as opposed to intense sexual arousal, isn't it.
AA number of people find it difficult to have an erection and masturbate when other people are watching them.
QBut would you agree that intense sexual arousal means that the person gets some sort of gratification that goes above and beyond a normal level of sexual arousal for that person.
AThe fact that he has done it repeatedly since the age of 18 would suggest that he's getting intense sexual arousal above and beyond what someone else would get from doing it.
QBut that wasn't the question. The question is whether he would get intense sexual arousal above and beyond what he would usually get from masturbation.
AI think that's only a question that Mr Moyle can answer. I don't know.
The diagnosis that Mr Moyle suffers from Exhibitionistic Disorder formed the basis for Dr Lim’s subsequent application of the RSVP assessment tool. In her report under the heading “sexual violence history”, Dr Lim concluded that Mr Moyle has “a history of early onset exhibitionism from childhood which has persisted over several decades into his adulthood.” She states that there is some evidence of Mr Moyle’s sexual misconduct escalating to low level contact (touching the prison nurse) but no evidence of violent sexual offending. She noted that his sexual offending is not diverse, nor was it the result of any physical or psychological coercion.
Under the heading, “psychological adjustment”, Dr Lim noted that Mr Moyle was “vehement that his exhibitionistic behaviour did not constitute a sexual offence as long as it did not progress to rape.” Dr Lim states that Mr Moyle struggled to appreciate that exposing himself to the others constituted a transgression of other peoples’ rights and might negatively impact on them. Mr Moyle sought to shift responsibility to the prison officers, blaming them for keeping him under observation. Dr Lim advised that “denial, minimisation, lack of empathy and deflection of responsibility are cognitive distortions and attitudes associated with future offending.” She added:
Mr Moyle presented as an individual with limited self-awareness, meaning he was unable to conduct reasonable self-appraisals of his own thoughts, feelings and behaviour. He attributed his sexual misconduct to either boredom or drug use. He either did not have, or was unwilling to discuss the deeper psychological factors underpinning his sexualised behaviour.
Mr Moyle is, Dr Lim considered, an individual with deficits in emotional regulation and limited coping skills who may resort to substances or sex to manage negative emotional states.
As to Mr Moyle’s Exhibitionistic Disorder, that is a type of sexual deviance. Sexual deviancy can be predictive of further sexual violence, but usually when there is a history of sexual violence driven by deviant arousal patterns.
With respect to Mr Moyle’s antisocial personality disorder, that increased his risk of general reoffending and non-adherence to supervision in the community.
Under the heading “Manageability”, Dr Lim notes Mr Moyle’s resistance to completion of violence prevention and sex offender treatment programs while in prison. She opines that any recent commitment is a result of external motivations (i.e securing release) rather than any intrinsic motivation. Coupled with his history of supervision failure, Dr Lim concludes that the likelihood of Mr Moyle complying with therapy in the community is reduced.
In bringing her report to a close Dr Lim said:
Based on all of the above considerations, I believe Mr Moyle is unwilling to control his sexual instincts because there is a significant risk that he would, if given the opportunity, fail to exercise appropriate control of his sexual instincts. However, the court may wish to consider if the nature and severity of any future sexual re-offending warrants a section 23 order in accordance with the spirit of the Act.
On balance, I consider that he is at moderate to high risk of non-contact sexual offences (eg exposing himself and masturbating in public) in future. I have given some thought to whether his non-contact sexual offending will progress to more serious acts of sexual violence, including rape. He does have underlying sadomasochistic sexual fantasies but there is limited objective evidence that he has enacted these fantasies in non-consensual relationships. However, the recent escalation of his sexual misconduct to opportunistic touching of a prison nurse is of some concern. Given his reluctance to discuss the incident fully and his current attitudes, it is difficult to assess whether the touching would have progressed to more coercive sexual violence if he was outside a prison environment. Therefore I consider that his risk of perpetrating contact sexual offences to be in the moderate range if released.
In her evidence Dr Lim revised her opinion in the light of Mr Moyle’s behaviour in the Royal Adelaide Hospital earlier this year. She now considered that he was “at high risk of exposing himself in the future.” In so concluding Dr Lim was particularly influenced by events on 15 February 2018. She said:
QSo on 15 February 2018, Mr Moyle is alleged to have been masturbating and flashing himself to the nurse and he did this while the guard was out of the line of sight. This strengthens the evidence that if he was given the opportunity, he would fail to exercise control of any sexual instincts, and this entry was made after previous episodes of sexually inappropriate behaviour, where he had been warned and told to stop, or he would be shackled. He didn't stop and, in fact, he had to be shackled subsequently to prevent further recurrence. I find it concerning because by this stage Mr Moyle would have been aware of the s.23 application, and despite being aware of the ramifications, he was still unwilling to control his sexual instincts, when given the opportunity to do so.
The following exchange then occurred:
QUnwilling to control or just not prepared to stop, as in a conscious decision not to. There's a difference, isn't there.
AYes.
QOne is, he's decided - and he has an anti-personality disorder so there is an element of anti-authoritarian about him, is that right.
AYes.
QSo when told by someone one 'don't', why couldn't it just be a case of him deciding, to be blunt, 'stuff you'.
AIt is a slightly different setting in hospital, so as far as I know, he hasn't been sexually inappropriate in prison from April 2016 onwards. So this is a different stay in hospital when he was receiving medical treatment, as opposed to being incarcerated.
QDo we know from the notes doctor, whether or not he had commenced to masturbate before the nurse came in.
AI don’t know.
QYou don’t know. Would that be material to your opinion.
AIt could be.
In cross-examination Dr Lim expressed the opinion that she did not consider that Mr Moyle’s anti-social personality disorder explained his acts of public masturbation or flashing. When stressed and bored there were other non-sexual ways in which Mr Moyle could express his anti-authoritarian views. She conceded that public masturbation was one way in which Mr Moyle might express his anti-authoritarianism but Dr Lim did not think it could “account for all the reasons…why he offends more frequently in prison sexually.”
Counsel for Mr Moyle then referred Dr Lim to the fact that between 1990 and 2005 records kept by the authorities showed Mr Moyle to have been observed publicly masturbating on 14 occasions, and then on a further six occasions since 2005. The point being made was the seeming reduction in frequency of such behaviour. Against this background Dr Lim was asked whether the reduction in frequency was indicative of a willingness on Mr Moyle’s part to control his sexual instincts. Dr Lim observed:
AThat is possible, but Mr Moyle has also told me that male officers are less likely to report him and not all the female officers will report any sexual misconduct either. So I'm not sure if the reduced frequency is due to actual reduction in his behaviour or just under-reporting.
QDo you have any evidence or information that suggests that the rate of reporting has increased or decreased over the last 28 years.
AI refer to an entry in the Royal Adelaide Hospital notes that said when the nurse asked for the guard's assistance to stop Mr Moyle masturbating, the guard refused; which I find a little bit concerning. I think that suggests a degree of desensitisation, and that given the time Mr Moyle has been in prison, it’s been accepted that this is the norm for him.
QIf that's right, how do you then characterise it as sexual misconduct, if it has become the norm. If you have been in gaol for 28 years and the norm is that engaging in this sort of conduct is permissible and you haven't had any sexual outlet, then why is it necessarily sexual misconduct, from his point of view, he possessing an antisocial personality disorder.
ASo that's exactly why he doesn't see that as wrong. He has done it outside of prison as well, your Honour.
XXN
QI put that badly. Why isn't it all just a product of his circumstances rather than it necessarily being indicative of an unwillingness to control his sexual instincts. If it's the norm, there is no question necessarily of an unwillingness, it's just the norm.
AIt's difficult for me to envisage that Mr Moyle will be able to control his sexual instincts knowing the ramifications of indefinite detention and still doing it, and him being able to control it in public when he knows there might be no consequences. Look, I think Mr Moyle struggles with stress and boredom, alluding to your Honour's earlier questions, you have to accept he finds it stressful in the community too, because he's never really survived for very long in the community, and never had periods of socialisation or gradual reintegration back into society. So it sounds like from what Mr Moyle is saying he's stressed both in prison and in the community and one of the ways he deals with stress is by masturbating in front of other people regardless of their consent.
Dr Haeney
Dr Haeney prepared his report on 10 February 2018 after interviewing Mr Moyle on 13 November 2017 and after reviewing the materials in exhibit P1. Further Dr Haeney had the benefit of the report prepared by Dr Lim. Mr Moyle’s background and personal circumstances as set out in Dr Haeney’s report are not materially different to those set out above.
Like Dr Lim, Dr Haeney administered the RSVP assessment tool. He explained the tool in more detail noting that the tool relies on a definition of sexual violence that is “actual, attempted or threatened sexual contact with another person that is non-consensual.” He explained further that acts of sexual touching or exhibitionism may also be included when administering the tool, including acts that are divulged by self-reporting or from collateral information, and even if the acts do not result in arrest, charge or conviction.
As part of the first domain, “sexual violence”, Dr Haeney considered the chronicity and diversity of sexual violence, its escalation and evidence of psychological or physical coercion. Based on the above definition and noting reports of Mr Moyle’s exhibitionism since he was 12, Dr Haeney considered it reasonable to conclude that there was a chronicity of sexual violence in Mr Moyle’s case. Similar to Dr Lim he noted there was minimal diversity in his sexual violence. He concluded that escalation of sexual violence was partially present but that there was no evidence of physical or psychological coercion.
In the domain “psychological adjustment”, Dr Haeney, like Dr Lim, considered that Mr Moyle tended to minimise or deny his sexual violence history drawing a clear line between what he considers to be sexual violence and his own behaviour. Dr Haeney considered that drugs or alcohol or responding with violence are the mechanisms usually employed by Mr Moyle to cope with stress.
In considering whether Mr Moyle possesses attitudes that support or condone sexual violence Dr Haeney noted that Mr Moyle had expressed negative attitudes toward females and particularly female prison officers. He had described using women for sex but also indicated that he did not enjoy sex if he did not have romantic feelings for the individual. Further, on the one hand he had some understanding that him exposing himself would be frightening to a person in the community and yet had no qualms about exposing himself to a female prison officer.
He added:
…I think it is - if he does, that's the primary aim of the behaviour and for his own sexual gratification, then that would increase his risk. But it is also consistent with any number of behaviours that someone might engage in in prison, that makes them angry and the gratification is it's annoyed prison staff, or caused them to have to fill in reports and paperwork. So I think all of this needs to be seen in the bigger picture of Mr Moyle's antisocial personality disorder, which is quite severe, rather than looking at it as sexual offending, sexual behaviour disorder and then setting it aside from his personality disorder. I don't know if that's clear.
In Dr Raeside’s opinion whilst the conduct was sexually gratifying, Mr Moyle also realised a non-sexual gratification. His conduct is primarily motivated by his disregard for authority and ordinary social norms. Undoubtedly there is a mix of motivations. Accordingly, it cannot be said, Dr Raeside opined, that Mr Moyle’s conduct is simply exhibitionism.
He knew that it was wrongful to masturbate in front of non-consenting people but was adamant that such behaviour would not progress to rape. He added, “I would have done it by now if I was going to do it. Jerking off in front of women is degrading to them, I know it’s wrong, but I get bored”. When asked what he would do if he was bored in the community, he said he would simply look for a woman or get a prostitute.
In relation to his previous sexual offence, he indicated that he masturbated on the train because he was intoxicated after going on an Ice and Ecstasy binge for 5 days. He claimed that he did not realise he was on a train and thought he was at home. He denied masturbating in public was sexually arousing for him. He insisted that the train incident was the only one he was convicted for as previous sexual offences were withdrawn, “it wasn’t even me”.
The Statutory Scheme and Applicable Legal Principles
In R v Hoare,[6] I considered the statutory scheme established by s 23 of the Criminal Law (Sentencing) Act 1988. I said:[7]
[6] [2017] SASC 7.
[7] R v Hoare [2017] SASC 7 at [62]-[75].
The statutory schemes and applicable legal principles
a. Section 23 of the Sentencing Act
Pursuant to s 23(4) of the Sentencing Act this Court may order that a person subject of an application made by the Attorney-General under s 23(2a) of the same Act be detained in custody until further order. As mentioned the Attorney-General may only make an application under s 23(2a) in relation to a person who has been convicted of a relevant offence and is in prison. Section 23(3) conditions the power conferred by s 23(4) upon this Court first directing that at least two legally qualified medical practitioners inquire into the medical condition of a person to whom this section applies and report to the Court on whether the person subject of the application is incapable of controlling, or unwilling to control, his or her sexual instincts. Thereafter ss 23(5) and (5a) govern the exercise of the discretion conferred by s 23(4). They provide:
(5)The paramount consideration of the Supreme Court in determining whether to make an order that a person to whom this section applies be detained in custody until further order must be the safety of the community.
(5a)The Supreme Court must also take the following matters into consideration in determining whether to make an order that a person to whom this section applies be detained in custody until further order:
(a)The reports of the medical practitioners (as directed and nominated under subsection (3)) furnished to the Court;
(b)Any relevant evidence or representations that the person may desire to put to the Court;
(c) Any report required by the Court under section 25;
(d) Any other matter that the Court thinks relevant.
Whilst the exercise of the power contained in s 23(4) is not expressly conditioned upon the Court finding that the offender subject of an application is incapable of controlling, or unwilling to control, his or her sexual instincts, the Full Court has stated that the question whether the subject is incapable or unwilling to control his or her sexual instincts is a threshold question that must be answered yes or no, otherwise, bearing in mind the scheme created by Part 2 Division 3 of the Sentencing Act, no proper foundation exists for the Court to consider the risk that the offender poses to the safety of the community.
Having answered the threshold question, there remains vested in the Court a residual discretion – despite the Court finding that a person to whom the section applies is incapable or unwilling to control his or her sexual instincts, it may be inappropriate that an order for indeterminate detention be made. Here it is important to bear in mind, for example, that the application may be made well in advance of the completion of an offender’s determinate sentence, when there is much time remaining for the offender to take advantage of courses and programs offered by the Department for Correctional Services.
While a conviction for a “relevant offence” is a precondition to the engagement of the scheme, the scheme’s purpose is not punitive. Rather, it is concerned with preventing recidivist sexual offending through incapacitation and rehabilitation. The scheme does not punish an offender twice for the same offences or increase the punishment for those offences. While it operates by reference to an offender’s status as a person convicted of a relevant offence, it sets up its own normative structure. The purpose of an order of indeterminate detention is to protect the community from sexual offenders where the risk posed by such a person is such that it is inappropriate that they be released, even when they have completed what would otherwise be their period of imprisonment for the offences that they have committed. Additionally it is to ensure that the person “receives appropriate treatment, review and supervision”.
An order for indeterminate detention should only be made where there is cogent and reliable evidence justifying the making of the order. In this regard Bleby J’s observations in R v England made in relation to a prior version of s 23 remain apposite. He said:
... satisfaction as to the inability of a person to control their sexual instincts is a matter of assessing the opinions to that effect, their strengths and their weaknesses, to a point where the court can be satisfied that the incapacity is present. In doing so, the court will need to take account of the seriousness of the declaration it is asked to make and the gravity of the consequences of giving the direction. To borrow the words of Dixon J in Briginshaw v Briginshaw, the necessary degree of satisfaction cannot be produced “by inexact proofs, indefinite testimony or indirect inferences”. It will require cogent and acceptable evidence in order to justify the making of the declaration and the giving of the direction. But even then, there is a residual discretion conferred by the use of the word “may” in the subsection. In that respect it may also be appropriate to consider, as in the case of R v Fahey and R v Riley whether, if a sentence is also imposed, the defendant is likely, at the end of the custodial period, to resume similar sexual activities. This will, in turn, require consideration, among other things, of the defendant’s access to and the likely effect of various regimes of treatment, and whether they can be effected in the prison setting or in some other institution contemplated by the section.
(footnotes omitted).
What amounts to an incapacity to control one’s sexual instincts is not defined. King CJ considered what amounted to incapacity in R v Kiltie in the context of discussing a progenitor of s 23. He said:
... The incapacity referred to in the section is an incapacity to exercise control resulting from innate mental characteristics. It is not that temporary incapacity to exercise self-control which results from the paralysis of will power caused by the ingestion of alcoholic liquor or drugs. Nor is it a strong inclination towards sexual offending resulting from deprivation of the means of satisfying sexual desire unless there is, in addition, an innate incapacity to control that inclination.
Unwilling is defined in s 23(1) as follows:
unwilling – a person to whom this section applies will be regarded as unwilling to control sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his or her sexual instincts.
In R v Whyte White J recorded that the two forensic psychiatrists who provided reports in that matter “...recognised that the statutory definition of the word “unwilling” required consideration of matters going beyond an assessment of his present state of mind”. White J added:
In my opinion, the definition is to be applied in the following way: the Court must assess the risk that the offender would, given the opportunity to commit a relevant offence, fail to exercise appropriate control of his or her sexual instincts. That assessment is to take account of all factors bearing on that risk. The Court’s assessment of the person’s state of mind will usually be very relevant to the assessment of the risk, but it is not the only matter to be considered. The opinions of the medical practitioners who have examined the offender and reported to the Court on the offender’s mental condition will be relevant to the assessment of the offender’s state of mind, but the opinions which those practitioners are able to express based on their field of expertise will not ordinarily encompass all the matters relevant to the Court’s assessment. That is to say, it will be necessary in some cases for the court to consider a range of factors which are not particularly within the field of expertise of, say, a forensic psychiatrist.
In R v Schuster the Full Court observed:
...more importantly it was necessary for the medical practitioners and the judge to consider the circumstances in which and degree to which Mr Schuster is unable or unwilling to control his sexual instincts. A detailed consideration of these matters was necessary in order to assess the nature and extent of the risk to public safety presented by Mr Schuster. For example, the risk profile of a person with a desire or inclination to offend in an opportunistic or impulsive way would raise different considerations to those in the case of a person whose modus operandi has been, or is likely to be, one involving a longer term grooming of potential victims.
Whilst these observations were made in the context of an appeal against an application for release on licence under s 24 of the Sentencing Act they are, in my view, equally applicable to an application made under s 23.
Something more should be said here as to the significance of s 23(5). In R v Schuster the Full Court tackled the question of the significance of making the public safety the paramount consideration in the context of an application for release on licence. It said:
What then is the legal significance of making public safety the paramount consideration? Obviously enough, even after the enactment of the Amendment Act, the Court retains a discretionary power to order release on licence. The Amendment Act did not make the safety of the community a condition precedent to the favourable exercise of the discretion. The legislature did not require that the Court be satisfied that there is no, or no material, risk to the safety of the community before the discretion is enlivened. Nor did the legislature prescribe a “minimum” acceptable risk. It could not do so in any practicable way because the risk here in issue cannot be measured with mathematical precision. The use of qualifiers like low, medium or high, would have limited utility.
I think these observations apply equally to s 23(5). So too the observation that the “exercise to be undertaken by the Court remains a balancing exercise between competing considerations: the difference is the weight required to be given to one of those considerations, namely public safety”. The Court quoted from the judgment of the Queensland Court of Appeal in Attorney-General (Qld) v Francis as reflecting the approach to be adopted. In that case Keane and Holmes JJA and Dutney J said:
The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.
Again such approach may be seen to apply equally to an application made under s 23. If the Court is satisfied that the offender is incapable or unwilling to control his or her sexual instincts, the question is whether an order for indeterminate detention is apt to ensure adequate protection of the community, having regard to the risk to the community posed by the offender.
Lastly, a factor relevant to the exercise of the discretion in this case is Mr Hoare’s consent to the Attorney-General’s application under s 7 of the High Risk Offenders Act. That is to say, if the s 23 application is not granted, it is not simply a matter of Mr Hoare being released into the community on 31 January 2017 without the benefit of supervision or intervention of any kind. He concedes it is appropriate that he be subject of an extended supervision order under the High Risk Offenders Act and all it may entail. Accordingly, it is appropriate in considering the application under s 23 of the Sentencing Act to take into account the alternate means of ensuring the safety of the community and whether it is sufficient without more.
Bearing in mind that the Sentencing Act has in the main re-enacted s 23 CL(S)A without amendment, save the inclusion of a power to make an interim detention order, I adopt the same approach in the present case as that applied in R v Hoare.
I add one observation. The Amending Act has the consequence that a person subject to an indeterminate detention order can only be discharged or released on licence if they satisfy the Court that they are capable and willing to control their sexual instincts or that because of advanced age or infirmity they no longer present an appreciable risk to the safety of the community. No longer can the person considered unwilling, but in relation to whom it is unnecessary to detain in order to protect the community, be released. There is then a degree of disconnect between the test applicable in determining whether to detain and the test to be applied in determining whether to discharge a person indeterminately detained or release them on licence. If a person is unwilling to control their sexual instincts and it is unnecessary that they be indeterminately detained in order to protect the community, ongoing detention is no longer protective or necessary for treatment. It is punitive. In my view that is a factor relevant to the exercise of the discretion under s 57. In many cases it may attract little or no weight. But in a case such as the present where it is particularly difficult to tease out what motivates Mr Moyle because of his undoubted severe antisocial personality disorder and where we are concerned with indecent behavior and not sexual offending involving contact with the victim, the risk is real.
Submissions
Counsel for the Attorney-General made plain that the Attorney did not contend that Mr Moyle was incapable of controlling his sexual instincts. It was submitted however, relying primarily upon the opinion of Dr Lim and the material filed in support of the application, that the Court could conclude that he was unwilling to control his sexual instincts in the relevant sense.
The gravamen of the submission was that Mr Moyle’s exhibitionist behaviour is linked to his own sexual gratification such that there is a significant risk that if released from custody he will engage in exhibitionistic behaviour in the community. It was not suggested that he would be at significant risk of committing a sexual offence including personal contact with a victim. In this regard counsel submitted:
COUNSEL:…So in my submission the relevant question boils down to this: if Mr Moyle was released from custody at the end of July this year without any supervision or other requirements imposed, is there a significant risk that he will engage in further exhibitionist behaviour in the community? That's…my submission as to the specific relevant question in Mr Moyle's circumstances that arise by reason of the statutory definition.
It was submitted that factors like boredom, stress and intoxication are factors likely to face Mr Moyle in the community. When those factors are considered holistically in the context of Mr Moyle’s antisocial personality disorder it was said that the threshold question of whether Mr Moyle is unwilling to control his sexual instincts, in particular to masturbate publicly, should be answered in the affirmative.
In exercising the discretion to make an order for indeterminate detention counsel reiterated that the risk posed by Mr Moyle to the community was significant and having regard to that risk an order for indeterminate detention was appropriate to protect the community. Factors justifying the exercise of the discretion to make an order, it was submitted, were the availability of the Violence Prevention Program to Mr Moyle while in prison but not in the community, his history of noncompliance with supervision in the community and his antisocial personality disorder.
Counsel for Mr Moyle submitted that the available evidence does not establish that Mr Moyle is unwilling to control his sexual instincts in the relevant sense. It was submitted that Mr Moyle’s sexual misbehaviour while in prison has reduced over recent times and where there are historical reports of Mr Moyle’s sexual misconduct, they are the product of his antisocial personality disorder and institutionalisation. He submitted there is no real evidence that Mr Moyle gains any intense sexual arousal out of public masturbation such as underpins Dr Lim’s opinion.
If this Court were to find the threshold question satisfied, counsel for Mr Moyle submitted that this Court should nevertheless refuse to make the order in the exercise of its discretion as even if there were a significant risk that Mr Moyle would expose himself in public, the risk such behaviour poses to the community is not sufficiently grave to justify the exceptional sanction of indeterminate detention.
Consideration
It is not contended that Mr Moyle is incapable of controlling his sexual instincts. It is said that he is unwilling in the relevant sense to do so. More particularly, it is contended that there is a significant risk that Mr Moyle would, given an opportunity to commit the offence of indecent behavior, perhaps also the offence of gross indecency, fail to exercise appropriate control of his sexual instincts and do so. The submission is founded upon Mr Moyle’s sexual offending in 2012 and 2013 and the repeated instances of his masturbating in circumstances where he must be aware that others will see going back as far as when he was first placed in a boys’ home.
At the outset it may be said that nothing in Mr Moyle’s history or the reports suggests that Mr Moyle poses a significant risk of committing a sexual offence involving personal contact with the victim, still less one involving violence or coercion. Accepting the evidence that the best indicator of future behavior is past behavior, the only evidence suggesting that Mr Moyle might commit a sexual offence involving personal contact is the 2016 aggravated indecent assault. There is then some risk. Perhaps it could be said that Mr Moyle’s dynamic risk factors coupled with his anti-social personality disorder reflected in his performance on the Sexual Violence Risk-20 scale administered by Ms Yates elevates that risk to being more than negligible. However, even though Mr Moyle has been in custody for all but three of the last 28 years, he must have had many and regular opportunities to commit indecent assaults upon female members of staff. There is no evidence that he has done so. Dr Haeney said that the risk of Mr Moyle committing a sexual assault was neither imminent nor frequent and his risk of committing a more serious sexual assault or rape unlikely. I accept this. I also accept Dr Haeney’s and Dr Raeside’s evidence to the effect that Mr Moyle’s attitude toward those that he regards as sex offenders suggests that he possesses a moral code rendering it unlikely he would act in the same way. In my view, the likelihood of Mr Moyle committing a sexual offence involving personal contact with the victim if the opportunity arose cannot be said to be significant.
I consider that counsel for the Attorney-General was correct to recognise that the fate of the Attorney-General’s application rests on the likelihood of Mr Moyle committing an offence such as indecent behavior or gross indecency if the opportunity arose and whether, assuming such risk to be significant, it warrants an order that Mr Moyle be detained indefinitely.
Mr Moyle’s 2012 offending must be seen in the context of his having engaged in masturbation in view of others on no less than 21 occasions since 1990 and including most recently when in the Royal Adelaide Hospital in February of this year. I accept that those 21 occasions are not the total number. The papers indicate, and Mr Moyle does not dispute, that he first masturbated publicly when he was taken into a boys’ home as a young teenager. Further, in prison there is likely to have been a degree of under-reporting. Mr Moyle’s own statements indicate as much.
Periods of abstention as observed by Dr Haeney and Mr Cooper deny the suggestion that Mr Moyle is incapable of controlling his desire to engage in such behaviour. I do not think the conclusions arrived at by Dr Haeney and Mr Cooper materially affected by the likelihood of under-reporting. Whatever Mr Moyle’s motivation, if he was seeking sexual gratification from the response of targeted females or, alternately, from the deprecation of those females, or in the further alternative, acted out of sheer boredom, I would have expected significantly more reports since 1990 than have been made even allowing for under-reporting to occur. The frequency of his conduct, or infrequency over the span of years, is relevant to an assessment of his unwillingness.
I also have regard to the fact that Mr Moyle has, despite his lengthy imprisonment, been able to develop relationships or associations with females when in the community that have provided him with companionship and an outlet for his sexual instincts. No reason arises to think that he cannot do so again. This is not a case of frustration or incompetence in forging relationships that leads to offending. Further, to the extent that the papers mention Mr Moyle’s inappropriate attitudes, those attitudes do not, it appears, result in non-consensual violent and non-consensual sexually violent relationships or liaisons with women. Mr Moyle’s predilection for sado-masochistic sex has not resulted in any offence being committed.
Next I have regard to the opinion of Ms Yates in 2004 and the statements made to her by Mr Moyle. The Sexual Violence Risk-20 Scale suggests that Mr Moyle is at high risk of sexual recidivism. That scale as explained attempts to predict the likelihood of the subject engaging in future sexual violence. It is interesting that as at 2004 Mr Moyle had never, and still has never, engaged in an act of sexual violence. This is despite periods in the community sufficient to allow plenty of opportunity. Here I bear in mind the view commonly held by the psychiatrists who gave evidence in this case that the actuarial tools utilized by the psychologists who have assessed Mr Moyle are not the best predictive tools. Nonetheless, it cannot be overlooked that Mr Moyle told Ms Yates that it was “good to be watched” indicating that his state of arousal was increased by the passive participation of others. This statement, seemingly volunteered and made at a time when there was no reason to think that it could be used in any way against him, is important to the evaluation of Dr Lim’s evidence. I also bear in mind that it is in the light of this comment in particular that Mr Moyle was adjudged as having displayed a pattern of deviant sexual arousal supportive of the diagnosis that he suffers exhibitionism.
In 2006 Mr Moyle told Ms Piercey that he engaged in public masturbation because he was bored. Doing so allowed him to experience feelings of excitement. His explanation of his thought processes when masturbating in view of female staff members suggests that such conduct is motivated by the presence of those staff members and that they are a component of Mr Moyle’s personal experience. It is interesting to note a further aspect of Mr Moyle’s moral code; if the female to whom he exposed himself reported him, he would not expose himself to her again. I do not know if he complied with this principle. It is also interesting to note that Mr Moyle was considered as someone who would exaggerate their symptomology. Such conclusion tends to suggest that less weight can be placed on Mr Moyle’s explanation for his conduct.
There is one additional aspect of Ms Piercey’s report that is worth mentioning. That is her recommendation that consistency in response to Mr Moyle’s conduct be established and maintained. Inconsistency in response to Mr Moyle’s conduct and in particular its toleration by some would promote the conduct as non-deviant and normal. If this was the environment, it is difficult to view the conduct as necessarily an expression of Mr Moyle’s anti-social personality disorder more than as an avenue of sexual gratification. Whether that sexual gratification (associated with the non-reported incidents) extended beyond the immediate physical experience to incorporate the presence of a witness and fantasising cannot be determined. If the under-reporting is in fact gross then it suggests boredom may truly be the primary motivation. I note that since Ms Piercey’s report in 2006 was prepared there have only been reports on six occasions of Mr Moyle masturbating in view of others (including his 2012 offending and behaviour in the Royal Adelaide Hospital).
Lastly, Ms Piercey explains Mr Moyle’s exhibitionism in a functional light, suggesting that it is amenable to treatment and largely the product of circumstance and the absence of developed coping strategies. That, in turn, is consistent with Mr Moyle possessing the capacity to control his conduct and augurs well for the modification of his behaviour outside the prison environment.
Mr Cooper reports abstention on Mr Moyle’s part from engaging in exhibitionistic behaviour for the two and a half years preceding his report. Mr Moyle is reported as recognising that engaging in such conduct possibly jeopardised his release. Two things follow from this; first, Mr Moyle is obviously capable of controlling his sexual instincts. Second, given the incentive of the prospect of release into the community, he was willing to do so and to do so without any additional intervention or assistance. This attitude can be seen to be repeated in Mr Moyle’s recent insistence that he be admitted to the VPP program in that where he previously declined to participate, the prospect that participation and compliance might further his chances of release leads him to conform.
Here it is perhaps appropriate to deal with Mr Moyle’s refusal to participate in the SBC program. I do not treat this as suggestive of any unwillingness on his part to conform. Somewhat paradoxically it is evidence of conformity in the sense that Mr Moyle acknowledges and accepts that sexual offending as he defines it is wrong and is not to be engaged in. It is because his moral compass aligns with this principle, with which he has always complied, that he resists attending the program. The SBC program is for those who have acted in breach of the principle. So committed to the principle is he, no doubt fueled by the treatment in custody of what he considers to be sex offenders, that he despises them and will not sit in a course with them. In this connection, I accept the opinions of Drs Haeney and Raeside that this attitude as possessed by Mr Moyle is a relevant factor in assessing his risk of re-offending and the nature of any future offence.
The difference between the psychiatrists largely turns on the operative effect of Mr Moyle’s anti-social personality disorder. Is his exhibitionism driven by the disorder or is it driven by sexual gratification derived from the physical experience and the involvement of a passive participant? Dr Lim favours the latter explanation. As mentioned she finds support for her opinion in the statements made by Mr Moyle to Ms Yates and Ms Piercey in addition to a number of reports provided by corrections officers. Dr Lim considers that Mr Moyle’s conduct cannot be explained solely by his anti-social personality disorder. There are other ways for him to express his anti-authoritarianism. She points to Mr Moyle being able to maintain an erection despite others witnessing his conduct as indicative of the importance of the passive participant to the experience. Dr Raeside, and to a lesser extent Dr Haeney, leave far greater work in the explanation for Mr Moyle’s conduct to his anti-social personality disorder. Here it must be said that the cognitive distortions possessed by Mr Moyle – denial, minimization, lack of empathy and deflection of responsibility – which are associated with future offending are very much the product of his anti-social personality disorder.
On the question of unwillingness I understood Dr Lim’s conclusion primarily to be the product of her opinion as to Mr Moyle’s motivation for his sexual behavior and the fact that such behavior was repeated in February this year despite this application being on foot. In short, his motivation must be strong such that in the face of possible indeterminate detention he cannot resist. If that is right then, if the opportunity to engage in the same sexual behavior presents when he is in the community, it is highly likely he will do so. In his report Dr Haeney considered that Mr Moyle’s abstention from exhibitionistic behavior from April 2016 suggests a willingness to control his sexual instincts. At the time of preparing his report Dr Haeney was unaware of Mr Moyle’s conduct in the Royal Adelaide Hospital. When that conduct was put to him Dr Haeney did not say that it caused him to change his opinion but that it provided reason to question Mr Moyle’s capacity to control his behavior and his willingness to do so. That must be so. The fact remains, however, that it is possible that there have been periods of abstention. That said, I accept Dr Lim’s reference to under-reporting. As I have already mentioned that possibility cannot be put to one side. But as I have also said, the under-reporting may not necessarily support Dr Lim’s opinion as to Mr Moyle’s ultimate motivation.
Dr Raeside considered that Mr Moyle’s behavior in the Royal Adelaide Hospital, like his behavior in custody, was more likely the product of his anti-social personality disorder as opposed to an unwillingness to control his sexual instincts. Unlike Dr Lim he considered the hospital environment not sufficiently different to the custodial environment. I accept this. I also accept the point made about the notes lacking detail allowing for an appreciation of the context in which the sexual behavior occurred. Here again the evaluative task is made difficult by the under-reporting. Is what occurred in the Royal Adelaide Hospital typical of conduct largely accepted and thus was likely the product of boredom? Or was it targeted and has it always been targeted so as to gain heightened gratification from the involvement of the passive participant? If it is the case that Mr Moyle’s motivation is sexual surely since 1990 there would be far more reports, even accepting that for some the conduct is tolerated.
I do not overlook the comments made to Ms Yates and Ms Piercey here, nor the flashing by Mr Moyle of his genitals to one nurse.
I am satisfied that with his poor coping skills it is likely that without assistance Mr Moyle will revert to his maladaptive behaviours in the community. That carries with it a risk that he will engage in exhibitionistic behaviour, more particularly masturbating in public. I agree with Dr Raeside that such risk is low to moderate. It must be said that there is no necessary immediate risk. The risk only arises when Mr Moyle reverts to his maladaptive behaviours, even then his doing so does not carry with it anything more than the low to moderate risk of his engaging in indecent behaviour. In that context indecent behavior has not been the primary maladaptive behavior engaged in by Mr Moyle. It is more likely that he will engage in a violent act or a non-sexual criminal act. Here too it is likely that Mr Moyle would resort to drink and drugs which might fuel the prospect of his engaging in a non-sexual criminal act but is not, having regard to the context of his offending in custody, necessarily associated with his sexual behaviour. Admittedly the 2012 offending occurred under the influence of Ice and ecstasy. That perhaps suggests a departure from the norm.
In assessing the risk regard must also be had to the fact that there is no suggestion that Mr Moyle is incapable of, or unlikely to be able to form, a relationship with a woman or an association that allows for sexual gratification. The evidence such as it is suggests that he has done this successfully in the past and has had no obvious need to engage in exhibitionistic behaviour as an outlet for sexual frustration or for gratification. The same cannot be said in the prison environment.
I remind myself of Bleby J’s observations in England. With some reservations I am persuaded that there is a significant risk that given the opportunity Mr Moyle will engage in indecent behavior. I am satisfied that he is unwilling to control his sexual instincts in the relevant sense.
The even more difficult question is whether, bearing in mind the risk Mr Moyle poses, it is appropriate to make an order that he be detained indefinitely. The degree of intrusion upon Mr Moyle’s liberty is great, all the more so when one has regard to the nature of the offence he might commit. All three psychiatrists in one way or another raised the question of the appropriateness of an order of indeterminate detention even allowing for the risk. There can be no doubt that Mr Moyle is a high risk offender within the meaning of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the High Risk Offenders Act). An application under that Act is pending. It is unfortunate that the applications could not be heard together. I do not know what Mr Moyle’s attitude is toward the High Risk Offenders Act application. Initially counsel suggested Mr Moyle was amenable to being subject to an extended supervision order but was given the opportunity to take firm instructions on the question. No update has been provided. It would be inappropriate to predict the outcome of the application under the High Risk Offenders Act. All the evidence before the Court on the present application would be admissible on the application under s 7 of the High Risk Offenders Act. Bearing in mind, however, that Mr Moyle is a high risk offender and that an application is on foot, any refusal to make an order would not arise on jurisdictional grounds. If this is right, a refusal to make an extended supervision order would reflect an assessment that the risk posed by Mr Moyle, which would extend to his risk of violence, is considered less than my assessment on the present application. So be it. The point is, in my view, the appropriate means of protecting the public from the risk posed by Mr Moyle and of ensuring that he gets the assistance he requires in transitioning to life in the community such that his risk of reverting to his maladaptive behaviours is reduced, is not an order for his indeterminate detention, but an order under the High Risk Offenders Act.
I refuse the application.
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