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…

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 R v Moyle

Details

AGLC: R v Moyle [2022] SASCA 61
Case: [2022] SASCA 61
Decision Date: 22 June 2022

CaseChat Overview and Summary

This case concerned an appeal by the Crown against the sentence imposed on the respondent, Moyle, in the District Court of South Australia. Moyle had been convicted of multiple Commonwealth offences relating to sexual conduct with children. The Crown argued that the sentence imposed by the trial judge was manifestly inadequate.

The central legal issue before the appellate court was whether the sentence imposed by the District Court was so inadequate as to warrant interference on appeal. This required the court to consider the seriousness of Moyle's offending, compare it to sentencing ranges for similar state offences, and determine an appropriate head sentence and non-parole period that reflected the gravity of the crimes and the harm to the victims.

The court reasoned that Moyle's repeated offending, particularly the penetrative sexual conduct, was serious and warranted significant punishment. It noted that while the maximum penalties for the Commonwealth offences differed from comparable state offences, children were entitled to broadly equal protection under the law. The court identified a particularly serious instance of penetrative sexual conduct, proposing a starting sentence of seven years for that offence, and six years for other similar offences, with a portion of these to be served concurrently. The court also determined that sentences for the non-penetrative sexual conduct offences should be served cumulatively on the penetrative offences, resulting in a total effective head sentence of 16 years before accounting for guilty pleas.

The appellate court concluded that the effective sentence of less than nine years imposed by the trial judge was manifestly inadequate. Accordingly, the court granted permission to appeal, set aside the original sentence, and imposed a total effective sentence of 12 years' imprisonment for the Commonwealth offences, with a non-parole period of seven years. The court further ordered that these sentences commence at the expiration of the sentences imposed for the State offences.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.