R v Moyle - [2022] SASCA 61

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v MOYLE
[2022] SASCA 61
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice Doyle)
22 June 2022
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM DISTRICT COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
This is an application by the Commonwealth Director of Public Prosecutions for permission to appeal against sentence on the ground of manifest inadequacy.
The Respondent was sentenced on five counts of engaging in sexual conduct with a child under 16 years outside of Australia and four counts of engaging in sexual intercourse with a child under 16 years outside of Australia under the Crimes Act 1914 (Cth). The Respondent was further sentenced for State offences under the Criminal Law Consolidation Act 1935 (SA).
The offending occurred in the context of the Respondent’s residence in Cambodia for work between 2002 and 2005. On all counts, the offending involved the Respondent engaging in penetrative sexual intercourse or indecent acts with girls aged between approximately 10 to 14 years old. The Respondent took photographs and video footage of the offending, as well as live streaming the sexual conduct.
Held, by the Court, granting permission to appeal and allowing the appeal:
1.The head sentence imposed by the sentencing Judge did not adequately reflect the seriousness of the offending and the harm suffered by each of the Respondent’s victims.
2.The sentence of the lower court should be set aside and the Respondent resentenced with respect to the Commonwealth offences.
3.In the circumstances of this case, a sentence of 12 years' imprisonment (reduced from 16 years' imprisonment on account of the Respondent's guilty pleas) with a non-parole period of seven years is appropriate. The sentence and non-parole period are to commence upon the expiration of the sentences imposed with respect to the State offences.

Crimes Act 1914 (Cth) s 50BA, 50BC; Criminal Law Consolidation Act 1935 (SA) s 63A; Director of Public Prosecutions Act 1983 (Cth) s 9(7), referred to.
Everett v The Queen (1994) 181 CLR 295 at 299; R v Buttigieg [2020] SASFC 38; R v Gee (2003) 212 CLR 230; R v Jacques [2021] SASCA 94, applied.
R v Wicks [2005] NSWCCA 409; Lee v The Queen [2000] WASCA 73, discussed.

R v MOYLE
[2022] SASCA 61
Court of Appeal – Criminal: Kourakis CJ, Lovell and Doyle JJA

THE COURT: This is an application by the Commonwealth Director of Public Prosecutions for permission to appeal against the sentences imposed on Mr Moyle for the following offences under the Crimes Act 1914 (Cth) (the Crimes Act):
·5 counts of engaging in sexual conduct with a child under 16 years outside of Australia;[1] and
·4 counts of engaging in sexual intercourse with a child under 16 years outside of Australia.[2]
[1] Section 50BC Crimes Act 1914 (Cth).
[2] Section 50BA Crimes Act 1914 (Cth).
Mr Moyle was further convicted of the following offences under the Criminal Law Consolidation Act 1935 (SA) (the CLCA):
·1 count of possession of child exploitation material (aggravated);[3] and
·1 count of possession of child exploitation material (basic).[4]
[3] Section 63A Criminal Law Consolidation Act 1935 (SA).
[4] Section 63A Criminal Law Consolidation Act 1935 (SA).
The grounds on which the application is made are that the head sentence and non-parole period are manifestly inadequate.
The maximum penalty for the offence of engaging in sexual conduct with a child under 16 years is 12 years’ imprisonment. The maximum penalty for the offence of engaging in sexual intercourse with a child under 16 years is 17 years’ imprisonment.
In 2009, the respondent was identified by an investigation in the United States of America through an online bulletin board, known as ‘Dreamboard’ (Board), which was used to advertise and distribute child exploitation material online.
Investigators identified the respondent under the name ‘waka’. On 5 December 2010 they matched the respondent’s IP address to a residence in Phnom Penh, Cambodia. In January 2015 the respondent posted comments on the Board and uploaded photo albums on a different website. The Australian Federal Police matched the IP address used at that time to the respondent’s home in Australia and he was arrested on 14 May 2019.
Between 5 June 2019 and 25 June 2019 members of a police investigation team in South Australia reviewed the respondent’s activity on the Board. They suspected that he was the male depicted in the videos and images which he had posted. A forensic procedure, which involved photographing the respondent’s body and making comparisons with the male depicted in the videos, confirmed that it was the respondent.
This appeal is against the sentences imposed for the offences committed outside of Australia which relate to sexual activity depicted in the images and videos posted on the Board.
The offending occurred between 2002 and 2005 when the respondent was residing in Cambodia and employed by international development agencies. On all counts, the offending involved the respondent engaging in penetrative sexual intercourse or indecent acts with girls aged between approximately 10 to 14 years old.
For the Commonwealth offences, the Judge imposed a total head sentence of eight year, nine months and 19 days, after applying a reduction of 20 per cent, on account of the respondent’s guilty plea and time already spent in custody. This was from a starting point of 11 years. The Judge fixed a non-parole period of four years and six months.
For the State offences, the Judge imposed a total head sentence of nine months and 19 days after applying a reduction of 20 per cent from a starting point of 12 months, again on account of the respondent’s guilty plea and time already spent in custody.
Permission to Appeal
The principles applicable to prosecution appeals against sentence are well established.[5] On an application for permission to appeal by the Commonwealth Director, this Court exercises the federal jurisdiction conferred by s 68(2) of the Judiciary Act 1903 (Cth) (the Judiciary Act) which picks up s 157(1)(a)(iii) and s 150 of the Criminal Procedure Act 1921 (SA) (the CP Act).[6]
[5] Everett v The Queen (1994) 181 CLR 295 at 299.
[6] R v Buttigieg [2020] SASCFC 38 at [45] (Lovell J, Kourakis CJ and Nicholson J agreeing); see generally, R v Gee (2003) 212 CLR 230 at [12]-[13] (Gleeson CJ), [61]-[67] (McHugh and Gummow JJ). As to the Commonwealth Director’s substantive right of appeal, see Director of Public Prosecutions Act 1983 (Cth) s 9(7); R v Gee (2003) 212 CLR 230 at [68]-[69] (McHugh and Gummow JJ); [149]‑[155] (Kirby J).
This Court reprised the principles of double jeopardy in relation to federal sentences in R v Buttigieg[7] and in R v Jacques.[8] In Buttigieg the Court observed that once permission to appeal is granted, the Court cannot have regard to ‘double jeopardy’ concerns if and when it resentences for Commonwealth offences.
[7] R v Buttigieg [2020] SASCFC 38 at 45.
[8] R v Jacques [2021] SASCA 94 at 23.
The Director’s complaint in this case is that the sentence imposed was manifestly inadequate due to the seriousness and persistence of Mr Moyle’s offending, and the number of victims. The Director accepts that the Judge accurately set out the relevant factual circumstances and that the Judge considered all relevant considerations. The Director’s contention is that the sentence imposed is nonetheless manifestly inadequate. For the reasons which follow, the Director’s submissions should be accepted.
We would grant permission to appeal and allow the appeal because the sentence imposed by the Judge for the Commonwealth offences is so substantially below the range of sentences warranted by the offending as to require correction to maintain proper sentencing standards. It falls below the range indicated by the interstate appellate decisions. It fails to recognise the harm caused to the many victims of Mr Moyle’s persistent offending. The manifest inadequacy of the sentence is indicative of an error of principle in its failure to reflect the societal expectation that the enforcement of the statutory provisions would protect children in developing countries from the predatory conduct of visiting Australian residents.
The Offending
The first two counts of engaging in sexual conduct occurred between 28 and 29 March 2002. Mr Moyle was 28 years of age at the time. The images he took depicted sexual conduct with two young girls aged between approximately 10 and 12 years of age. Mr Moyle touched their legs indecently whilst they were naked and caused them to touch his penis.
The offence of engaging in sexual conduct charged by count 3 was committed on 21 July 2002 against a girl aged between approximately 10 and 12 years of age by seating her on his lap.
The offence of engaging in sexual intercourse charged by count 4 was committed on or about 20 February 2003 against a young girl aged between 10 and 12 years of age.
The offence of engaging in sexual conduct charged by count 5 was committed on 21 February 2003. The victim was aged between approximately 10 and 12 years of age. The offence was committed in the same room as the offence charged on count 4.
The offence of engaging in penetrative sexual intercourse charged by count 6 was committed on or before 4 October 2004. Video footage of the offence taken by Mr Moyle shows that he live streamed the sexual conduct onto a television in the room. A range of sexual activity, including sexual intercourse, took place over a protracted period of time.
The victim of count 6 gave a detailed Victim Impact Statement. The Judge also received a psychological report on the effects of the offending on her. She had been forced to work in brothels from the age of 12. She described the humiliating and degrading circumstances in which she was paraded, along with other girls for selection by future customers. She found Mr Moyle ‘very strange and very frightening’. He did not speak at all during the offending. He moved her from position to position as if she was an object. She was too terrified to protest.
The offence of engaging in sexual conduct charged by count 7 occurred on or before 5 October 2004. The images show Mr Moyle engaging in a range of sexual conduct with a young girl between approximately 12 and 14 years of age in various stages of undress.
The offence of engaging in penetrative sexual conduct charged by count 8 was committed on or before 9 October 2004 against a young girl between approximately 10 and 12 years of age. The act of penetrative sexual intercourse followed a range of other sexual conduct which was filmed in explicit detail.
The offence of engaging in penetrative sexual conduct, charged by count 9, was committed on 23 June 2005 against a young girl of approximately 10 years of age and again followed a range of sexual conduct which was explicitly filmed.
Moyle’s Personal Circumstances
At the time of sentencing Mr Moyle was 47 years of age. He is married with two children aged 10 and 11. He holds an Honours Degree in Economics, a Graduate Diploma in Land Rehabilitation and a Master’s Degree in Public Policy. He has an extensive employment history on international aid projects both in Australia and overseas commencing in the year 2000. By 2004 he worked almost exclusively in Cambodia.
The Judge accepted that the offending commenced out of a sense of frustration and loneliness which led to Mr Moyle attending bars and massage parlours in which prostitution was common and where he would seek out the youngest females available. Whatever precipitated Mr Moyle’s descent into this abhorrent behaviour, and he is perhaps fortunate that the Judge accepted it was loneliness, the form of the offending, the detailed and sophisticated recording of it and the cold commentary which accompanied its posting, manifest a worrying lack of empathy in the pursuit of his sexual gratification. Not surprisingly the Judge rejected the finding of a psychiatrist that the offending was spontaneous because of the preplanning which was necessary to record the offending.
Mr Moyle met his wife in Cambodia. They married in 2008. His wife remains supportive of him.
Mr Moyle had no prior convictions.
The Judge warned himself against reasoning that every child victim’s experience with the offender was the same as the victim of count 6 in the absence of evidence from each of Mr Moyle’s victims. In sentencing, a Judge can inform himself or herself as he or she thinks fit. There is no difficulty in coming to the conclusion based on judicial knowledge of the fears and vulnerabilities of children to conclude that every one of Mr Moyle’s victims was terrified and traumatised by his offending.
Other Sentences
While the Court is plainly not bound by individual instances of sentences imposed for offences of this kind, it is of assistance to consider the few other occasions when convictions have been recorded for sexual offences against children committed outside Australia.
In the case of R v Wicks,[9] the defendant was convicted of four counts of engaging in sexual intercourse with a child under 16 outside of Australia and one count each of inducing a person under 16 to commit an act of indecency outside of Australia and inducing a person under 16 to have sexual intercourse with another person outside of Australia. The offending occurred over a period of one month in Thailand. Like the appellant, the defendant was employed and was well regarded in the community. The Judge imposed concurrent sentences resulting in a total head sentence of five years. The appeal was allowed and Wicks was sentenced to eight years’ imprisonment.
[9] R v Wicks [2005] NSWCCA 409.
The essential reasoning of McClellan CJ at [49], with whom Adams and Hoeben JJ agreed was as follows:[10]
Although the level of sentence imposed for each offence does not indicate error, in my opinion, this cannot be said of his Honour’s conclusion that all of the sentences should be served concurrently without any accumulation. Although the offences occurred during a short holiday in Thailand and were committed as part of that single enterprise they involved a number of individual sexual acts and a number of different victims. In those circumstances concurrency of all the sentences was not appropriate.
[10] R v Wicks [2005] NSWCCA 409 at [49].
In Lee v The Queen,[11] the applicant was convicted of one count of engaging in sexual intercourse with a person under 16 outside of Australia and eight counts of committing an act of indecency on a person under 16. The trial Judge imposed a total sentence of 14 years imprisonment with a six year non-parole period. The sentence of four years imposed on the offences of engaging in sexual conduct contrary to s 50BC of the Crimes Act were to be served cumulatively. On appeal, the Court re-sentenced and reduced the total head sentence to 11 years’ imprisonment composed of six years on the offence of engaging in sexual intercourse, four years on the other offences of committing an act of indecency and one year on the state offence, with a four year and six month non-parole period.
[11] Lee v The Queen [2000] WASCA 73.
Justice Wallwork, with whom the other members of the Court agreed, said:[12]
In my view the sentence of eight years for one act of sexual penetration of a child under the age of 16 years, there being no evidence of brutality other than the act itself, was too severe for a person with no prior convictions in all the circumstances of the case. It was a very serious offence but a more appropriate term would have been a sentence of six years imprisonment for that offence.
[12] Lee v The Queen [2000] WASCA 73 at [25].
The respondent’s repeated offending is relatively more serious than the offending in both R v Wicks and Lee v The Queen.
Consideration
The maximum sentence of imprisonment of 12 years for engaging in sexual conduct[13] is higher than the maximum period of imprisonment of 10 years for the offence of indecent assault against a victim of 14 years or under, contrary to s 56 of the CLCA. The maximum penalty of 17 years’ imprisonment for the offence of engaging in sexual intercourse[14] is less than the maximum penalty of life imprisonment for unlawful sexual intercourse with a child under 14 years of age for which s 49 of the CLCA provides. Nonetheless, the range of sentences imposed for those offences can properly inform the sentences to be imposed for the Commonwealth offences after making proper allowance for the difference in the maximum penalties. In the enforcement of State and Commonwealth laws enacted for the protection of children, children are entitled to broadly equal levels of protection, whatever their ethnicity and wherever they reside.
[13] Section 50BC Crimes Act 1914 (Cth).
[14] Section 50BA Crimes Act 1914 (Cth).
Offending of this kind committed overseas will generally not have an element of breach of trust which often accompanies offending committed locally in domestic and institutional settings. On the other hand, opportunistic participants in that trade can have no empathy for the suffering of the victims. Exploitation of the vulnerability of children in developing countries deserves equal obloquy.
Moreover, the victims of Mr Moyle’s offending are not limited to the nine victims of each of the offences of which he was convicted. Mr Moyle’s participation in the commercial exploitation of children played its part in supporting the ongoing trade of those who peddle in the misery of children.
In considering the appropriate sentence for the many offences committed by Mr Moyle, it is useful to start with the more serious offending of engaging in penetrative sexual intercourse. We would commence with the offence charged in count 6. The greater detail known about that offending because of what is known of the victim’s experience shows the offence to be a particularly serious instance of offending of this kind. We refer in particular to the way in which the victim was selected and engaged by Mr Moyle, the range of sexual conduct in which Mr Moyle engaged, the time over which it occurred and the sophisticated recording of the offending. Moreover, the offence occurred against a background of Mr Moyle’s offending over the preceding two years. An appropriate starting sentence for count 6, before any reduction for Mr Moyle’s plea of guilty, is seven years.
There is insufficient evidence in what is known of the circumstances of the other offences of sexually penetrative conduct to differentiate between them. An appropriate starting point for each of them is a head sentence of six years. The sentences imposed on those counts should be served concurrently in part in order to achieve a total sentence which is proportionate to the overall offending. Accordingly, for the offence of sexually penetrative conduct charged in count 4, a sentence of six years to commence after three years of the sentence of seven years imposed on count 6 has been served is appropriate. For the offence charged in count 8, a sentence of six years to commence after Mr Moyle has served five years of the sentence imposed on count 6 is warranted. For the offence of engaging in sexually penetrative conduct charged in count 9, a sentence of six years to commence on the completion of the sentence imposed on count 6 has been served is appropriate.

An appropriate overall head sentence for the offences of engaging in sexually penetrative conduct is therefore in the order of 13 years.
On the offences of engaging in sexual conduct charged in counts 1 and 2, an appropriate sentence, before taking into account Mr Moyle’s guilty plea, is 12 months’ imprisonment on each count, the latter sentence to commence six months after the commencement of the first. The sentences are partially concurrent to reflect the temporal and circumstantial proximity of the offending. On count 3, which is relatively less serious than counts 1 and 2, a sentence of six months to be served cumulatively on the sentences imposed on counts 1 and 2 is warranted. On count 5, a sentence of imprisonment of 12 months, with six months to be served cumulatively on the sentence imposed on count 3 is within the proper range. On count 7 a sentence of 12 months, six months of which will be served cumulatively on count 5, is warranted. The partial concurrency of the sentences imposed on counts 5 and 7 is calculated to result in a total sentence which is proportionate to the overall conduct encompassed by those offences.
In order to reflect the overall offending and the harm suffered on each of Mr Moyle’s victims, it would be proper to order that the sentences imposed on the offences of engaging in sexual conduct be served cumulatively on the offences of engaging in sexually penetrative conduct. The resulting total effective head sentence is 16 years. A reduction of four years may properly be allowed on account of the respondent’s guilty pleas.
Conclusion
There is a great disparity between the effective sentence of less than nine years imposed by the Judge and the sentence of 12 years adumbrated above. It can only be concluded that the Judge’s sentence is so manifestly inadequate as to require correction. We would, therefore, grant permission to appeal and allow the appeal. We would set aside the sentence imposed by the Judge and, pursuant to s 26 of the Sentencing Act 2017 (SA), as picked up by the Judiciary Act, impose a sentence of 12 years’ imprisonment for the Commonwealth offences.
We would fix a non-parole period of seven years.
We would order that the sentences imposed on the Commonwealth offences commence at the expiration of the sentences imposed on the State offences.