R v Moyle - [2007] SASC 23

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MOYLE
[2007] SASC 23
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice Sulan)
6 February 2007
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - WRONG PRINCIPLE
On 31 October 2006 the Attorney-General exercised the power conferred by s 369 of the Criminal Law Consolidation Act 1935 (SA) to refer the case to the Court of Criminal Appeal - the appellant had petitioned Her Excellency the Governor for the exercise of the prerogative power of mercy - in 1996 the appellant pleaded guilty to a charge of murder and was sentenced to life imprisonment - the Court fixed a non-parole period of 19 years to operate from 24 December 1994 - the petition argues that the Court in fixing a non-parole period acted erroneously by fixing a longer non-parole period on account of the offender's youth - it is arguable that an error has been made out - in any event this Court is required to consider the appeal afresh - consideration of the circumstances of the crime - the victim was robbed and burnt alive in his car - the appellant's antecedent history discloses mostly minor traffic offences, offences of dishonesty and an assault occasioning actual bodily harm - the sentencing Judge found the appellant's personal circumstances were also relevant - the appellant pleaded guilty - appeal allowed - non-parole period set aside - non-parole period of 17 years fixed on appeal to operate from 24 December 1994.
Criminal Law Consolidation Act 1935 s 369, referred to.
Mallard v The Queen (2005) 224 CLR 125; Mickelberg v The Queen (1989) 167 CLR 259; Inge v The Queen (1999) 199 CLR 295, discussed.

R v MOYLE
[2007] SASC 23
Court of Criminal Appeal: Doyle CJ, Debelle and Sulan JJ

DOYLE CJ: On 20 February 1996 Mr Moyle pleaded guilty to a charge of murder.
On 1 March 1996 a Judge of this Court imposed the mandatory sentence of life imprisonment. The Judge fixed a non-parole period of 19 years, to operate from 24 December 1994.
Mr Moyle appealed against that sentence.
On 21 June 1996 this Court dismissed the appeal, by majority. The dissenting Judge would have reduced the non-parole period to a term of 17 years.
Mr Moyle has petitioned Her Excellency the Governor to exercise the prerogative of mercy.
On 31 October 2006 the Attorney-General, exercising the power conferred on him by s 369 of the Criminal Law Consolidation Act 1935 (SA), referred the whole case to the Full Court. By operation of s 369(a) the case is to be heard and determined by the Court “as in the case of an appeal by a person convicted”.
In Mallard v The Queen [2005] HCA 68, (2005) 224 CLR 125 the High Court considered a provision in the Sentencing Act 1995 (WA) that is, for all intents and purposes, identical to s 369 of the Criminal Law Consolidation Act. The reasons of the majority at [10] emphasise that the Court must consider the whole of the material properly admissible before the Court, and must consider all questions of fact and law that arise from that material, although at the same time in deciding the case the Court must apply “legal principles appropriate to criminal appeals”: Mickelberg v The Queen (1989) 167 CLR 259 at 312.
The petition raises one matter for consideration.
When Mr Moyle was sentenced a number of decisions in this Court, and a number of decisions by single judges, had proceeded on the basis that when fixing a non-parole period in relation to a mandatory sentence of life imprisonment, a non-parole period fixed in the case of a relatively young offender should be longer than would otherwise be the case, and in particular than would be the case for an older offender. The reasoning, in brief, was that the non-parole period was to be fixed in relation to a life sentence. A life sentence for a younger person would be longer than for an older person. Accordingly, as the non-parole period was to be proportionate to the head sentence of life imprisonment, it should be longer in the case of a younger person.
In Inge v The Queen [1999] HCA 55; (1999) 199 CLR 295 the High Court determined that this approach was erroneous. As the majority said at [12]:
… it does not follow, either as a matter of logic, or as a matter of the proper exercise of the discretion considered in Bugmy, that the relative youth of an offender counts against the offender.
In dismissing Mr Moyle’s appeal, one member of the majority appears to have applied the principle said to be erroneous by the High Court in Inge. The other member of the majority did not make any reference to that principle, but agreed with the reasons of the Judge just referred to. The dissenting Judge might have applied the principle referred to in Inge, although he was prepared to make allowance, in favour of Mr Moyle, for the fact that he was relatively young.
In my view it is appropriate to proceed on the basis that the majority applied the approach that was said to be erroneous in Inge. In any event, this Court is required to consider the appeal afresh.
The issue is whether the non-parole period of 19 years is manifestly excessive, having regard to appropriate sentencing standards.
That directs attention to the remarks of the sentencing Judge. That Judge made no reference to the error identified in Inge. However, it is appropriate to proceed on the basis that the Judge applied that principle, because it was an established principle at the time: see Inge at [28] Kirby J. The fact that the principle was referred to in Mr Moyle’s earlier appeal indicates that that approach was current at the time, and it is likely that the sentencing Judge had regard to it.
So, for those reasons, the sentence should be considered afresh.
The crime was a dreadful one.
Mr Walker, the unfortunate victim, was asleep in his motor car in the early hours of a morning. Mr Moyle came upon him. Mr Moyle apparently realised that Mr Walker was in a deep sleep. He took some money from his pockets. Mr Moyle then siphoned petrol from the car into a bottle, tipped petrol over Mr Walker, and set him alight. Mr Walker burned to death. His death must have been an agonising one.
Mr Moyle’s conduct is inexplicable. The Judge proceeded on the basis that Mr Moyle had had a troubled life, which was described by his counsel at the time as “disruptive and dysfunctional”. At the time of sentencing, Mr Moyle was 25 years of age. He had a poor record. He had three pages of convictions. Most of them were traffic matters and relatively minor offences involving disorderly conduct and dishonesty, although the last of his convictions was for assault occasioning actual bodily harm, and for that offence he was imprisoned for six months.
The sentencing Judge was told that at the time Mr Moyle was depressed, having recently broken up with a girlfriend. He had been drinking alcohol, and was affected by drugs. He had been taking heroin for three days.
In Mr Moyle’s favour it can be said that the crime was unplanned, and no doubt was attributable to the influence of drugs. But it remains a cruel and cold-blooded crime.
To Mr Moyle’s credit when he was arrested later on the day on which the offence was committed, he admitted his guilt to the police. There are indications that he was genuinely remorseful. That is a factor in his favour.
He did not actually plead guilty until late in the piece. Nevertheless, he was entitled to a reduction for that plea of guilty, when combined with the indications of genuine remorse. The sentencing Judge made no reference to a reduction on account of the plea of guilty. Before the Court that considered the previous appeal it appears to have been common ground that some reduction for the plea of guilty was appropriate. I consider that the lateness of the plea means that the reduction had to be towards the lower end of the appropriate range. Bearing in mind that the sentencing Judge fixed a non-parole period of 19 years, this suggests that the sentencing Judge must have had in mind, as a starting point, a non-parole period of about 22 years, if he allowed a 15 per cent reduction. If a greater reduction was made, the starting point would have been higher.
Another matter that must be borne in mind is the impact of this crime on the family of Mr Walker. The sentencing Judge had before him statements by a number of family members. It is clear that the death of Mr Walker had a significant effect on them. It appears to have had a very severe effect on the de facto partner of Mr Walker. The Judge had before him an opinion indicating that she was suffering from post-traumatic stress disorder. Whatever the diagnosis, it is clear from the material before the Judge that the crime had a very severe effect on her well being, and that her prognosis was not good.
It is necessary to weigh up all these factors, and to consider afresh the appropriate non-parole period.
Counsel for Mr Moyle on the hearing of the petition did not ask the Court to consider any additional material relating to Mr Moyle’s circumstances. Nor did counsel for the Director of Public Prosecutions ask the Court to consider any further material relating to the impact of the crime on Mr Walker’s family.
I consider that an appropriate starting point, having regard to the nature of the crime, the circumstances in which it was committed, and Mr Moyle’s personal circumstances, is a non-parole period of 20 years. That is an appropriate starting point, taking into account all factors other than the plea of guilty. On account of the plea of guilty I would reduce that non-parole period by 15 per cent, leading to the fixation of a non-parole period of 17 years.
Accordingly, I would allow the appeal, set aside the non-parole period of 19 years, and order that in relation to the head sentence a non-parole period of 17 years be fixed, the non-parole period to operate from 24 December 1994.
DEBELLE J: In 1996, the appellant pleaded guilty to the crime of murder committed on 24 December 1994. He was sentenced to life imprisonment. A non-parole period of nineteen years was ordered to commence on 24 December 1994, the date when the appellant was taken into custody. An appeal against sentence was dismissed. The appellant has petitioned the Governor to exercise the prerogative of mercy.
The Attorney-General has referred the whole case to this Court, pursuant to s 369(a) of the Criminal Law Consolidation Act 1935. Section 369(a) requires the Court to hear and determine the case “as in the case of an appeal by a person convicted”. Section 369(a) is expressed in terms similar to corresponding provisions in other states. It is similar in terms to s 140 of the Sentencing Act 1995 (WA) which was considered in Mallard v The Queen (2005) 224 CLR 125, where the history of these provisions is briefly noted (at 128-129).
When exercising its jurisdiction pursuant to s 369(a), this Court must consider the whole case, that is to say, it must consider the whole of the evidence properly admissible, whether that evidence be fresh evidence or evidence which has been previously adduced, in the case against and the case for the appellant. The purpose and effect of the expression “as in the case of an appeal” are to confine the Court to making orders and following procedures apposite to an appeal: see Mallard at [10]. Thus, when the Attorney‑General referred this petition for mercy in respect of a sentence, the role of the Court is to consider whether there is any proper ground to interfere with the sentence. The Court must pronounce upon the whole case as presented, subject to any issue being excluded as frivolous or vexatious: Mickleberg v The Queen (1989) 167 CLR 259 at 311-312 per Gaudron and Toohey JJ, with whom Mason CJ and Brennan J agreed.
When the appellant was sentenced, judges in this Court were proceeding on the footing that, when fixing a non-parole period for the mandatory sentence of life imprisonment for murder in the case of a relatively young offender, the sentence should be longer than would otherwise be the case for an older offender. That approach was sometimes called the “von Einem factor”. The High Court held that approach to be incorrect in Inge v The Queen (1999) 199 CLR 295.
At the hearing of this appeal, counsel for the Director of Public Prosecutions conceded that the sentencing Judge and the Court of Criminal Appeal had erred by having regard to the von Einem factor when sentencing the appellant. It is contended on behalf of the appellant that the von Einem factor influenced both the sentencing Judge and the Court of Criminal Appeal. There is nothing in the remarks of the sentencing Judge which requires that conclusion. At the time he was sentenced, the appellant was aged twenty five years. He was not of an age which would necessarily attract the von Einem factor. It would seem, however, that the majority of the Court of Criminal Appeal had regard to the von Einem factor.
Although the sentence was upheld on appeal by judges who wrongly applied the von Einem factor, it does not follow that this Court should interfere with the sentence. The fact is that the sentence originally ordered by the sentencing Judge was upheld. Thus, it is the remarks of the sentencing Judge which must be considered. It is mere conjecture that the sentencing Judge applied the wrong approach. I do not, therefore, accept the concession of the Director of Public Prosecutions. This Court should, therefore, proceed as if it were determining whether the sentence was manifestly excessive.
This was an appalling and horrific murder characterised by acts of meanness as well as callous indifference. As the sentencing Judge observed, it was a terrible crime. Early in the morning of Christmas Eve 1994, the appellant came across the victim who was sleeping in his car at Rosewater. The appellant siphoned petrol from the car into a bottle and poured the petrol over the victim and set him alight, but not before he had taken some money from the victim’s pockets. On the appellant’s own account of the events, after he had poured petrol over the victim, he waited some fifteen minutes before setting alight to his clothing. There was, therefore, an element of pre‑meditation in this crime. The appellant had a real opportunity to desist. The victim burned to death in what must have been an agonisingly painful way. The appellant stood and watched him burning for a short time. He did not attempt to render any assistance to the victim. Later that day, he gave himself up to the police and admitted his responsibility for the crime.
The appellant had led a troubled life. He had a poor record, including a recent conviction for assault occasioning actual bodily harm for which he had been imprisoned for six months. His counsel submitted to the sentencing Judge that the appellant was depressed at the time, having recently broken up with a girlfriend. He had been drinking alcohol and was affected by drugs, having been taking heroin for some three days. While the consumption of drugs and alcohol might explain the initial act of setting fire to the victim, they do not explain the appellant’s hard-hearted callousness in standing and watching his victim for a short time, without rendering any assistance.
As already mentioned, the appellant admitted his guilt to police when arrested. However, he did not plead guilty until a short time before the trial. The appellant was, therefore, entitled to some reduction in the sentence for his plea. I agree with the Chief Justice that any reduction had to be towards the lower end of the appropriate range. The non-parole period indicated that the sentencing Judge would have ordered a non-parole period of twenty two years but for the plea of guilty.
While the infinite variety of circumstances in which murder might be committed means that there is no one standard sentence for that crime, a non‑parole period of twenty two years is well within the range of sentences ordered for the murder committed in like manner to this. It was well within the sentencing discretion. Expressed another way, it could not be said that the sentence was manifestly excessive. Indeed, one can readily accept that a more severe sentence might have been ordered for this inhumane murder, especially given that the partner of the victim suffered severely from the crime. She suffered a severe post-traumatic stress disorder.
Put shortly, the sentencing Judge did not apply the von Einem factor but, instead, ordered a sentence which was appropriate to the circumstances of the crime and of the offender. The sentence was altogether appropriate for a crime as horrible as this murder. In no sense was the sentence manifestly excessive.
Even if this Court is to proceed on the footing that both the sentencing Judge and the majority of the Court of Criminal Appeal wrongly applied the von Einem factor and must, therefore, sentence the appellant afresh, the horrific nature of this crime and other circumstances to which I have already referred would cause me to conclude that the sentence ordered was entirely appropriate for the crime.
For these reasons, I would dismiss the appeal.
SULAN J: The circumstances of this crime have been described in the judgments of the Chief Justice and Debelle J. The manner in which the crime was carried out was horrendous. Nevertheless, there are a number of factors which lead to the conclusion that it was not at the highest level of seriousness. The crime was unplanned. It was carried out without premeditation. It was not a cold-blooded murder carried out with a full realisation by the appellant of its effect at the time.
In reviewing the sentence, the factors personal to the appellant referred to by the Chief Justice must be taken into account. The appellant’s remorse and plea of guilty are important mitigating factors. I agree with the Chief Justice that a starting point of a non-parole period of 20 years is appropriate.
I agree with the conclusions of the Chief Justice. I agree with the orders that he proposes.