R v Moyle - [2020] SASC 93

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v MOYLE
[2020] SASC 93
Reasons for Decision of The Honourable Justice Bampton
3 June 2020
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - LIFE SENTENCE - REDETERMINATION OR SETTING OF MINIMUM TERM OR NON-PAROLE PERIOD
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - PARTICULAR CASES
Application to fix a non-parole period – the applicant was sentenced in 1996 to life imprisonment and a non-parole period fixed – applicant granted parole on 16 January 2019 – applicant breached the conditions of parole on multiple occasions – the applicant’s release on parole was cancelled on 4 February 2020 and his life sentence reinstated.
Non-parole period of eight months fixed backdated to 4 February 2020.
Sentencing Act 2017 (SA) s 47(3); Criminal Law Consolidation Act 1935 (SA) s 369, referred to.
R v Moyle (2007) 96 SASR 287; Foley v Police [2008] SASC 338; R v Roberts (2016) 125 SASR 40, considered.

R v MOYLE
[2020] SASC 93
Criminal: Application to fix a non-parole period

BAMPTON J: Phillip Vernon Moyle applies for the fixing of a non-parole period pursuant to s 47(3) of the Sentencing Act 2017 (SA) (“the Act”).
Background
On 20 February 1996, Mr Moyle pleaded guilty to murder.
On 1 March 1996, Millhouse J in sentencing Mr Moyle summarised his offending as follows:
Early on the morning of Christmas Eve 1994, a man was asleep in his vehicle in a street in Rosewater. You and some others arrived nearby in another vehicle. The young women with you, after difficulty, persuaded the occupant or occupants of a house to let them in to change their clothes. You and two other men waited outside. You went over to the vehicle in which the victim was asleep. He did not rouse. You went through his pockets and took a little under $4.
You and one or both of the others had siphoned petrol out of the tank of the victim’s vehicle. Some was put into a 2 litre Coke container. You poured about half the contents of the container over the sleeping man. A few minutes later you went back to the victim’s vehicle and set fire to him by flicking on a cigarette lighter. He burnt to death.
You have given no reason for doing this except to say that you were depressed, having broken up with your girlfriend, had been drinking alcohol, and were high on drugs: you had been taking heroin for three days.
Mr Moyle was sentenced to life imprisonment and a non-parole period of 19 years was fixed.
Mr Moyle appealed against the non-parole period and, on 21 June 1996, the Court of Criminal Appeal dismissed the appeal, by majority. The dissenting Judge would have reduced the non-parole period to a term of 17 years.
Mr Moyle then petitioned the Governor to exercise the prerogative of mercy. On 31 October 2006, the Attorney-General, exercising the power conferred by s 369 of the Criminal Law Consolidation Act 1935 (SA), referred the whole case to the Full Court. Pursuant to s 369(a) the case was heard and determined by the Full Court “as in the case of an appeal by a person convicted” and, on 6 February 2007, the non-parole period of 19 years was set aside and a non-parole period of 17 years to operate from 24 December 1994 was fixed.[1]
[1] R v Moyle (2007) 96 SASR 287.
Release on parole while serving the life sentence
Mr Moyle’s non-parole period expired on 24 December 2011.
Mr Moyle was granted parole on 16 January 2019. The conditions of Mr Moyle’s parole included that he abstain from illicit drugs (the “no drugs condition”) and not leave his approved place of residence between the hours of 9.00 pm and 6.00 am (the “curfew condition”).
Mr Moyle returned a positive test to methamphetamine on 26 March 2019 and a positive test to amphetamines and methamphetamines on 2 April 2019. Five earlier tests had returned diluted results. The Parole Board (“the Board”) issued a warrant for Mr Moyle’s arrest.
Following his arrest, Mr Moyle was interviewed by the Board on 18 June 2019. During the interview, Mr Moyle said that he had been living with his sister in the community and was volunteering with her at the Red Cross. He also said that he was struggling to cope with the loss of his mother who had died whilst he was in custody in 2018. Mr Moyle was apologetic for breaching his parole. He explained that he found life in the community overwhelming and that he felt more comfortable in gaol. He was also concerned that he had not been put on the methadone program.
The Board found the breaches proved but deferred its decision pending advice regarding possible psychological intervention available to Mr Moyle. On 3 July 2019, the Department for Correctional Services advised that no further treatment could be offered to Mr Moyle in custody but that a short number of sessions in the community could be provided following his next release.
During a further interview by the Board on 3 September 2019, Mr Moyle said that he had been seeing a psychologist and social worker at Yatala Labour Prison in order to deal with his substance abuse problems. The Board was informed that Mr Moyle’s sister was prepared to have Mr Moyle live with her again. The Board released Mr Moyle from the warrant on 25 September 2019.
Following his release, Mr Moyle breached his curfew conditions. He also breached the no drugs condition of his parole on five occasions.
On 1 November 2019, the Board issued another warrant for Mr Moyle’s arrest and he was taken back into custody. The Board reported that it was concerning that Mr Moyle continued to use illegal drugs, particularly given the circumstances in which his offence occurred. It was also noted that after completing the Violence Prevention Program in 2015 he was identified as being at increased risk of reoffending should he relapse into substance abuse.
The Board interviewed Mr Moyle on 4 February 2020. Mr Moyle reported that he and his psychologist were working on a relapse prevention plan. He told the Board he felt that his risk factors were “no job, no licence, hanging around with the wrong people”. The Board found the breaches proved and cancelled his parole, reinstating his life sentence.
The presiding member of the Board, Ms Nelson QC, reported in her letter to the Court dated 7 May 2020 that Mr Moyle had good reports relating to his institutional behaviour prior to his release on parole. He had excellent work records and was said to have a good work ethic. Whilst at the Cadell Training Centre, he worked for seven days a week and in 2008 it was recommended that he be employed in the Outside Community Work Gang.
Ms Nelson said that Mr Moyle has good intentions. However, he is institutionalised and lacks pro-social peer groups and support. Ms Nelson stated that if he is released again on parole he is only likely to be successful if appropriate supports can be found for him in the community, ideally, he needs an Aboriginal Sobriety Group mentor. Mr Moyle also needs a structured day but as he may not be able to obtain employment, Ms Nelson said it would be important for him to connect with some voluntary or community service.
Ms Nelson identified that he would need to continue psychological counselling, either with Ms Cave or through Nunkuwarrin Yunti or a similar organisation. Ms Nelson suggested that involvement in a Men’s Group may also be helpful. Ms Nelson stated that there is a risk that he would relapse into illegal drug use until he is sufficiently robust to develop strategies for dealing with grief and disappointment.
Ms Nelson pointed out that Mr Moyle needs to be truthful about the nature and extent of his illegal drug use, as he currently continues to minimise and justify it. Ms Nelson concluded by saying that if a further non-parole period is set, the Board would interview Mr Moyle, obtain institutional reports, a pre‑parole report, and a further report from his psychologist to assess what progress he has made in the last 12 months.
Mr Moyle’s application
Mr Moyle identifies as a Ngarrindjeri and Narrunga man. He is a member of a large family who spent his childhood in a single parent household with support from extended family, where the primary source of income was social security. Mr Moyle struggled at school. He commenced offending at the age of 13 and was incarcerated for much of his youth.
I am told that Mr Moyle accepts responsibility for his breaches of parole. He acknowledges that he uses drugs as a coping mechanism and when under the influence of negative peers.
Mr Moyle’s mother had been his primary support and her death is “a significant unresolved trauma” for him, particularly as he was not able to partake in the cultural grieving process due to his incarceration.
Mr Moyle continues to be supported by his eldest sister, Debra Moyle, and is attempting to rebuild his relationships with his other siblings. Mr Moyle submitted that his siblings, and maintaining cultural connections, are his protective factor. He is also currently in a supportive relationship with a woman, who I am told does not use illicit drugs.
Mr Moyle has been receiving counselling whilst in custody from the psychologist, Maxine Cave. In her report dated 16 December 2019, Ms Cave stated that Mr Moyle meets the criteria for substance use disorder (amphetamine); bipolar II disorder (most recent episode, depression); and other specified trauma – and stressor – related disorder (complicated grief). Ms Cave recommended that Mr Moyle be referred to a clinical psychiatrist for assessment and treatment of his bipolar condition. Counsel for Mr Moyle submitted that treatment for this condition was unlikely to be readily available if Mr Moyle were to remain in custody.
I have also received a report dated 20 May 2020 from Dr Dan Pronk, Medical Director of SA Prison Health Services. Dr Pronk reported that mental health records from 1999 onwards exist in respect of an alias that ostensibly belongs to Mr Moyle. The most recent entry, from May 2013, recorded the patient with that alias experiencing a manic episode in the context of underlying bipolar affective disorder.
Sue Bertossa, a cognitive behaviour therapist with Flinders Wellbeing Centre, in a report dated 30 March 2020 said that she first met Mr Moyle on 3 December 2019 and that he has attended five therapy sessions with her. She reported that he was enthusiastic, open, and co-operative. Ms Bertossa also stated that further support was available to Mr Moyle upon his release through the Flinders Wellbeing Centre and that he would be referred to the ALRM Prisoner Through Care Program.
Counsel for Mr Moyle also submitted that he has completed numerous programs targeted at violence prevention and drug rehabilitation whilst incarcerated.
The Director’s submissions
The Director agreed that Mr Moyle should have a non-parole period set, but submitted that he still presents a moderate risk of reoffending. The Director pointed out that the progress made by Mr Moyle occurred prior to his release on 16 January 2019 and that his progress on parole and since returning to custody in February 2020 has been minimal. It was submitted that Mr Moyle has completed numerous drug programs over time, but his drug use continues to be an issue.
The fixing of a non-parole period
Mr Moyle has been using drugs and engaging in offending behaviour since the age of 13. Mr Moyle is now 49 years of age and has spent most of his life incarcerated. As a result, Mr Moyle is “institutionalised” and lacks pro-social peer groups and supports. Mr Moyle struggled to live in the community whilst on parole. Without the structure provided for him in custody, tasks such as purchasing a bus ticket, shopping and paying bills proved overwhelming. Unfortunately, Mr Moyle resorted to drug use.
In determining this application, I have considered the gravity of the offending underlying Mr Moyle’s life sentence, the conduct that has breached his parole conditions, the likelihood of his response to parole, and his prospects for rehabilitation.[2]
[2] Foley v Police [2008] SASC 338 at [22] and [25]; R v Roberts (2016) 125 SASR 40 at [27].
Mr Moyle has not reoffended whilst on parole. However, it must be borne in mind that he committed the murder whilst using drugs. Mr Moyle remains at moderate risk of reoffending. That may increase significantly if he is to use illicit drugs and associate with negative peers in the community.
It is apparent that Mr Moyle’s rehabilitation has stalled since he was released on 16 January 2019 and returned to custody. It is also apparent that Mr Moyle used illicit drugs whilst on parole despite being supported by his sister, who I am told would again be Mr Moyle’s primary support in the community.
Ms Cave is of the opinion Mr Moyle suffers bipolar II, which may be a factor underlying Mr Moyle’s behaviour and drug use. It is undoubtedly in the best interests of Mr Moyle and that of the community that this potential diagnosis is investigated and, if confirmed, treated. Such diagnosis and treatment is more readily available to Mr Moyle if he is not in custody.
I note that the Flinders Wellbeing Centre have indicated their willingness to continue working with Mr Moyle and to refer him to the ALRM Prisoner Through Care Program, should he be released.
I fix a non-parole period of eight months, backdated to 4 February 2020, noting that it is for the Board to assess Mr Moyle’s suitability for release into the community once he is eligible to apply for parole.[3]
[3] R v Miller (2000) 76 SASR 151 at [42].
The reports of Ms Cave, Ms Bertossa, and Dr Pronk are to be forwarded to the Parole Board with these remarks.