R v Sirl (No 2)
[2019] ACTSC 388
•12 December 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Sirl (No 2) |
Citation: | [2019] ACTSC 388 |
Hearing Dates: | 9 December 2019 |
DecisionDate: | 12 December 2019 |
Before: | Burns J |
Decision: | See [39]-[44] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – recklessly inflicting grievous bodily harm – found guilty by jury – extensive criminal history – prospects for rehabilitation guarded |
Legislation Cited: | Crimes Act 1900 (ACT) ss 20(1), 54(1) |
Parties: | The Queen (Crown) Robert Glen Sirl (Offender) |
Representation: | Counsel T Hickey (Crown) K Musgrove (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender) | |
File Number: | SCC 19 of 2019 |
BURNS J:
Robert Sirl, on 11 September 2019 you were found guilty by a jury of one offence of sexual intercourse without consent and one offence of recklessly inflicting grievous bodily harm. It is my responsibility to sentence you for these offences.
Conviction for these offences also means that you are in breach of two Good Behaviour Orders imposed on 9 July 2018 in the ACT Magistrates Court and I must also deal with you for those breaches.
The maximum penalty for the offence of sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT) (the Crimes Act), is 12 years' imprisonment. The maximum penalty for the offence of recklessly inflicting grievous body harm, contrary to s 20(1) of the Crimes Act, is 13 years' imprisonment.
The facts
Following a finding of guilt at a trial by jury, it is for the Court to determine the facts upon which an offender is to be sentenced. Such facts must be consistent with the verdicts returned by the jury. They must also be arrived at to the standard of beyond reasonable doubt. You knew the victim of these offences as a fellow resident at the caravan park where you lived. You had previously had a casual sexual relationship with her. At about 11:00 pm on 9 August 2018, you rang the victim and asked her if she wanted to purchase some cannabis.
The victim went to your residence to buy cannabis. At your residence, you provided her with coffee which had methylamphetamine in it. Shortly after this, you told the victim that there was a large amount of money missing from your residence and that she was not allowed to leave until it had been found. The victim helped you to search, during which you both entered the bedroom of the residence. You said to the victim that “[w]e’re going to have some fun first”.
You pushed her onto the bed on her back. You pulled off her pants and flipped her over onto her stomach. She made it clear to you that she did not want to have sex with you. You were holding her down by her neck, making it difficult for her to see what was happening. You inserted your penis into her vagina and had sexual intercourse with her. While this was happening, she told you to stop. You did stop a couple of times and on the last such occasion, she could hear you reaching for a bag or a box close by.
The next time you penetrated the victim it was different. It was with something hard and sharp. The victim felt pain and again told you to stop. You did not stop, and you continued for some time. The victim screamed and repeated, “[y]ou're hurting me”. Eventually you finished and removed the object from her vagina.
I am satisfied that on this last occasion you penetrated the vagina of the victim with a sharp edged or bladed object. It is not possible for any finding of greater particularity to be made. After you removed the object from the victim's vagina, she stood up and pulled her pants on and could feel blood running into her jeans from her genitalia. She told you she had to go because she was bleeding.
She ran to the communal shower block and got under the shower with the intention of waiting until the bleeding stopped. It did not stop and over the next several hours she used her mobile phone to ring you numerous times. You did not answer your phone. She sent you a text message saying, “[p]lease come help me, I'm bleeding out”. She heard you go into the men's shower and have a shower.
While you were at the men's shower, she could hear your phone ringing as she tried to call you. You went back to your residence before returning to the women's showers and you threw a bathmat at her. You saw the blood which the victim had lost and said, “I've got fucking visitors. Don't ring my number again”. You then walked off. The victim ran home holding the bathmat to her to stop the bleeding.
She got into the shower at her residence, but the bleeding did not stop. She rang an ambulance which took her to the Emergency Department. At hospital, she underwent emergency life-saving surgery to stop the blood loss. Later, doctors estimated that she lost somewhere between one third and almost half of her blood volume. The operation record showed she had five distinct incised wounds on either side of her cervix.
The larger incised wound was still actively bleeding at the time of surgery and the wound was not clotting. In the doctor's opinion, the incised wounds were caused by a sharp, bladed object which would have been extremely painful.
I will not treat your post offence conduct towards the victim as aggravating the seriousness of these offences, but it does demonstrate a lack of remorse.
Victim Impact Statement
A Victim Impact Statement was read by the victim at your sentence hearing. In that statement, she refers to the continuing emotional and psychological effect of your offences. She does not believe that she will ever recover from what you did. She was placed on antidepressants but had to cease taking that medication because of medical complications. She replays what happened in her mind and it makes her feel sick.
She has become extremely agoraphobic. She does not socialise as much as she used to. She has dreadful nightmares about the events. She has also suffered financially. The trauma that she has suffered has also added to her inability to work in her chosen field of aged care. She expressed concern about how these events have affected her family.
Objective seriousness
With regard to the offence of sexual intercourse without consent, I am satisfied that you knew the victim was not consenting to the various acts of sexual intercourse you engaged in. I accept that there was limited premeditation and the offence itself was opportunistic. It is not clear how long the incident lasted but it was not momentary. I accept the Crown's submission that the incident probably extended over several minutes. The sexual penetration involved not only penetration by your penis but also by a sharp edged or bladed object. I accept that you did not ejaculate during the course of this offence.
I also accept the Crown's submission that there was a degree of humiliation and degradation involved by reason of the position in which you placed the victim before penetrating her and your use of the object to penetrate her. You ignored her pleas to cease your conduct. The description by the victim of the events leading up to the commencement of this sexual assault make it extremely unlikely that you were wearing a condom, thus exposing the victim to the risk of sexually transmitted disease.
As the Crown submitted, this was a particularly violent and degrading sexual assault. In my opinion, it falls within the upper range of such offences.
Turning to the offence of recklessly inflicting grievous bodily harm, I have absolutely no doubt that you were aware of the risk of serious harm to the victim by inserting a sharp, bladed object into her vagina, but you deliberately engaged in that conduct.
Your motive for doing so may have involved some form of sexual fetish or it may not, but I am satisfied beyond any doubt that your motive for engaging in this offence and in the offence of sexual intercourse without consent, in part, at least, involved enjoyment of exercising power and control over the victim.
In assessing the objective seriousness of the offence of recklessly inflicting grievous bodily harm, I take into account that the harm inflicted was particularly serious and indeed life-threatening.
You took no steps to provide assistance to the victim or to arrange for assistance. Your attitude to her injuries was one of contempt. Had the victim herself not obtained medical treatment, it is quite probable that she would have died. The physical effects of the victim's injuries quickly resolved after treatment but not surprisingly, she continues to suffer very serious psychological consequences.
I would also assess this offence as in the upper range of such offences.
Subjective features
You have a very extensive criminal history but mainly for traffic and property offences. You do have previous convictions for offences of violence, including being sentenced to imprisonment for 18 months for an offence of assault occasioning actual bodily harm in New South Wales in 2006. You have also been convicted of serious drug offences for which you were sentenced to imprisonment.
You have no prior sexual offence convictions. Your criminal history disentitles you to any leniency in sentencing for the present offences. It also speaks of the need to impose sentences designed to deter you from committing criminal offences.
A Pre-Sentence Report was prepared for the sentence hearing. You are 48 years old and you reported a childhood marred by exposure to substance abuse and domestic violence. I accept that the consequences of that remain with you to the present day.
The Report notes that although your parents are non-Indigenous, you consider yourself Aboriginal due to being raised by your stepfather who was of Aboriginal descent. Your stepfather passed away in 2009. You have had no contact with your mother since being remanded in custody on the present charges. You are single, although you have three adult children all of whom have no contact with you.
You told the author of the Report that you are hopeful of relocating to the South Coast of New South Wales upon release from prison to reside with your mother, notwithstanding the recent lack of contact with her.
You left school in Year 8 and did not go on to complete any further education. You reported holding employment as a removalist and general labouring work until 2013 when you ceased working due to problematic drug use.
Prior to entering custody, you were reliant on payments from Centrelink. You told the author of the Report that consumption of alcohol had been problematic for you in the past, but you had not consumed alcohol for approximately 13 years. You first smoked cannabis at eight years of age and smoked it daily until you were remanded in custody. You commenced use of amphetamines and methylamphetamine at 14 years of age. Between 2013 and being remanded in custody on the present charges, you consumed approximately two grams of methylamphetamine daily. You told the author of the Report that you have never attempted to address your drug use through counselling or intervention.
You reported being of good physical and mental health. You were assessed as a medium-high risk of general reoffending. The author of the Report stated that you have numerous criminogenic risk factors, including your attitude to offences, long-term history of illicit drug use and unemployment. ACT Corrective Services records indicate that you have not engaged in any education, programs or interventions since being remanded in custody.
I take into account a character reference provided on your behalf by Ms Connie Patience. She first met you in 2005 and you are a lifelong friend of her husband. She and her husband employed you when you first came to the ACT in 2007 and you worked and boarded with them for over two years.
She described that period as being a positive time in your life in which you reconnected with your children. She has always found you to be honest, trustworthy, hardworking and gentle in nature. She has continued to see you on occasions since that time and has never felt threatened or unsafe in your presence. She does not believe that you are the sort of person who would mistreat a woman.
I give limited weight to the opinions expressed by Ms Patience because she clearly accepted your assertions that you are not guilty of the present offences. You have shown no remorse for these offences.
I am satisfied that you consumed illicit drugs before you committed the offences. There is no evidence of any clear connection between your consumption of illicit drugs and the commission of the offences. Whilst you commenced illicit drug use at a very early age, the fact that there is no apparent connection between your drug use and the present offences means that your moral culpability for these offences is not lessened by reason of your drug addiction. I will, nevertheless, take your drug use into account as part of the background to these offences.
It is difficult to be optimistic about your prospects for rehabilitation.
You are not a young man and you have a very substantial criminal history. On the other hand, it is apparent that you have, in the past, managed to maintain abstinence from drug use and to maintain employment and prosocial activity. I have no doubt that you are capable of abstaining from drug use and becoming a useful member of the community in the future, should you commit yourself to achieving these ends. At the present time, your prospects for rehabilitation must remain guarded.
There can be no other sentence appropriate for these offences other than significant periods of full-time imprisonment. Due to the significant coincidence of circumstances between the offences, it is necessary that there be a significant degree of concurrency. However, there should also be a reasonable period of accumulation to reflect the additional criminality involved in the offence of recklessly inflicting grievous bodily harm and to acknowledge the additional harm done to victim.
Sentence
With regard to the offence of sexual intercourse without consent (CC2018/13147), I record a conviction and you are sentenced to six years' imprisonment, commencing on 25 October 2018 and expiring on 24 October 2024.
With regard the offence of recklessly inflicting grievous bodily harm (CC2018/13146), I record a conviction and you are sentenced to six years and nine months' imprisonment, commencing on 25 July 2020 and expiring on 24 April 2027.
I cancel the Good Behaviour Order which was made on 9 July 2018 in the ACT Magistrates Court for an offence of driving with a prescribed drug in your system (CC18/4896). I impose the sentence of two months' imprisonment which was suspended at that time. That sentence will commence on 25 October 2018 and be entirely concurrent with the sentence imposed for the offence of sexual intercourse without consent.
I direct that no action be taken with respect to the Good Behaviour Order imposed on the charge of being unlicensed driver (CC18/4897).
The aggregate sentence which I have imposed is therefore one of eight years and six months' imprisonment, commencing 25 October 2018 and expiring 24 April 2027.
I set a non-parole period of 5 years and 11 months, commencing 25 October 2018 and expiring 24 September 2024.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns. Associate: Georgina Flaherty Date: 4 May 2020 |
0
0
1