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R v Moyle [2022] SASCA 61

The offender was sentenced following pleas of guilty to 5 counts of engaging in sexual conduct with a child under 16 years outside of Australia contrary to s 50BC of the Crimes Act 1914 and 4 counts of engaging in sexual intercourse with a child under 16 years outside of Australia contrary to s 50BA of the Crimes Act 1914. Offender additionally sentenced for State offences. Original sentence for Commonwealth offences imposed 8 years and 9 months imprisonment with a non-parole period of 4 years and 6 months. The Crown appealed on the ground that the sentence was manifestly inadequate.

Manifest Inadequacy: The original sentence imposed 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 the persistent offending and fails to  reflect societal expectations that the enforcement of the statutory provisions would protect children in developing countries from the predatory conduct of visiting Australian residents. In order to reflect the overall offending and harm suffered, offender’s sexual conduct offences are to be served cumulatively on the sexual intercourse offences. Resulting total effective head sentence is 16 years with a reduction of 4 years allowed for the offender’s guilty pleas. There is a great disparity between the original sentence of less than 9 years and the sentence of 12 years adumbrated.

Nature and Circumstances: Offending of this kind committed overseas will generally not have an element of breach of trust. On the other hand, opportunistic participants in that trade can have no empathy for the suffering of the victims. Exploitations of the vulnerability of children in developing countries deserves equal obloquy. Offender’s participation in the commercial exploitation of the children played its part in supporting the ongoing trade of those who peddle in the misery of children. Count 6 was a particularly serious instance of offending with regards to how the victim was selected and engaged, the range of sexual conduct in which the offender engaged, the time over which it occurred and the sophisticated recording of offending.

Leave to appeal granted. Appeal allowed. Original sentence set aside. Offender resentenced to 12 years imprisonment with a non-parole period of 7 years.
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