Attorney-General (SA) v Moyle - [2018] SASC 106

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)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General (SA) v Moyle

Details

AGLC: Attorney-General (SA) v Moyle [2018] SASC 106
Case: [2018] SASC 106
Decision Date: 25 July 2018

CaseChat Overview and Summary

In the Supreme Court of South Australia, the case of Attorney-General (SA) v Moyle [2018] SASC 43 involved a critical examination of whether the respondent, Mr. Moyle, should be subject to an indefinite detention order due to his persistent exhibitionist behaviour and risk of reoffending. The Attorney-General sought this order under the Serious or Violent Offenders or Dangerous Sexual Offenders Act 2006 (SA), arguing that Mr. Moyle posed a significant risk to the community if released. The primary legal issues before the court were whether Mr. Moyle had a significant risk of reoffending and whether this risk warranted the imposition of an indefinite detention order under the Act.

The court considered various psychiatric and psychological evaluations, including those by Dr. Lim and Dr. Haeney. Dr. Lim concluded that Mr. Moyle exhibited cognitive distortions and limited empathy, suggesting he was unwilling to control his sexual instincts, which supported the Attorney-General's application. However, Dr. Haeney opined that while Mr. Moyle's risk of committing a sexual offence involving personal contact was not negligible, it was not significant. The court weighed these expert opinions and concluded that, despite the risk, Mr. Moyle's repeated instances of indecent behaviour and masturbation in institutional settings did not necessarily indicate a significant risk of committing serious sexual offences in the community. The court also noted that there was no evidence of Mr. Moyle committing sexual assaults on staff members while in custody.

Ultimately, the court determined that while Mr. Moyle's risk of reoffending was a concern, it was not sufficiently grave to justify the exceptional sanction of indefinite detention. The court exercised its discretion to refuse the Attorney-General's application, finding that the risk of Mr. Moyle committing an offence such as indecent behavior or gross indecency, if the opportunity arose, did not warrant the imposition of an indefinite detention order.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.