R v Sirl (No 3)
[2019] ACTSC 355
•12 December 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Sirl (No 3) |
Citation: | [2019] ACTSC 355 |
Hearing Date: | 9 December 2019 |
DecisionDate: | 12 December 2019 |
Before: | Mossop J |
Decision: | See [39] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – maintaining sexual relationship with a young person – two acts of sexual intercourse – exploitation of the victim’s use of methamphetamine – no evidence of remorse – offender introduced to illicit drugs at very early age – substantial criminal history – totality – sentence of imprisonment |
Legislation Cited: | Crimes Act 1900 (ACT), s 56 Crimes Legislation Amendment Act 2018 (ACT) |
Cases Cited: | KN v The Queen [2019] ACTCA 37 R v Degioannis [2019] ACTSC 47 R v Olbrich [1999] HCA 54; 199 CLR 270 |
Texts Cited: | Explanatory Memorandum, Crimes Legislation Amendment Bill 2017 (No 2) (ACT) Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report (August 2017) |
Parties: | The Queen (Crown) Robert Sirl (Offender) |
Representation: | Counsel T Hickey (Crown) K Musgrove (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender) | |
File Number: | SCC 63 of 2019 |
MOSSOP J:
Introduction
The offender, Robert Glen Sirl, was found guilty by a jury of one count of maintaining a sexual relationship with a young person. That is a contravention of s 56 of the Crimes Act 1900 (ACT) and carries a maximum penalty of 25 years’ imprisonment. He was 47 years old at the time of the offending. The victim was 15 years old.
Facts
On 25 October 2018 police attended a residence in Gilmore where the offender was living at the time. They knocked on the offender’s door and could hear noises coming from a room in the house. The offender opened the door and police observed a girl in the room naked from the waist down. The offender admitted that he “was just getting busy with a lady”. He told police that she was 18 years old.
The jury’s verdict involves acceptance of the evidence of the victim that there was another occasion upon which the offender had sexual intercourse with her. That occurred sometime in the weeks prior to 25 October 2018 at a hotel in Woden. I do not accept the Crown’s submission that there were more occasions of sexual intercourse than that. In order to reach such a conclusion I would need to be satisfied of that fact beyond reasonable doubt: R v Olbrich [1999] HCA 54; 199 CLR 270. While there was some imprecise evidence that could be interpreted as indicating that sexual intercourse prior to 25 October 2018 had occurred on more than one occasion, that evidence was inconsistent with other statements made by the victim that it only occurred at a hotel once. The evidence was not sufficient to permit a finding beyond reasonable doubt.
The victim was a child who was in foster care. She had come into contact with the offender through a group of girls or young women who were supplied with drugs by the offender or a friend of his of similar age. The arrangement between the offender and the victim was that he would supply her with methamphetamine if she had sexual intercourse with him.
The verdict of the jury involves the rejection of the defence available to the offender, that he believed on reasonable grounds at the time of the sexual intercourse that the victim was over the age of 16 years. The jury’s verdict does not identify whether the rejection of that defence was because the offender had failed to prove on the balance of probabilities that he believed the victim was 16 years or over, or because the jury was not satisfied that the grounds for such a belief were reasonable.
I find that the offender did not establish on the balance of probabilities that he had the relevant belief. I do not accept the evidence that he gave to police about his understanding of her age. That evidence was not given on oath or affirmation. While in some respects the statements made to police appeared spontaneous and unhesitating, his statements to police in other respects, most particularly the nature of the relationship with the victim and the circumstances in which the sexual intercourse occurred on 25 October 2018, were untruthful and implausible. Having regard to the circumstances in which the offender met the victim, the evidence of her appearance and his knowledge that she was in foster care, it is more likely than not that the accused did not have the positive belief necessary to establish a defence that would render the sexual intercourse lawful. I do not accept his evidence that the information that he had about the victim’s age was only that she had said that she was 18 years old. Notwithstanding that in cross‑examination the victim was uncertain about whether there had been a conversation in which she told the accused that she was 15 years old, when she spoke to police officer Christine Walters on 25 October 2018 in the immediate aftermath of the sexual intercourse, she disclosed and the officer recorded: “‘Chappo’ knew she was only 15 as she had told him”. I consider that the statement recorded under those circumstances is likely to be reliable.
I reject the submission that the fact that at the time police initially intervened and before she was reassured that she was not in trouble, the victim said things that were false, detracts from the reliability of her subsequent statements to the police. It is quite understandable that a girl in her circumstances was not initially completely truthful with police. It is apparent that even at the evidence-in-chief interviews she remained very uncomfortable and reluctant to disclose what had occurred. Her lack of immediate candour when police attended the house in Gilmore is entirely understandable and did not adversely affect her credibility more generally.
In any event, even if the offender had such a belief, it was not based upon reasonable grounds. What constitutes reasonable grounds for a belief will vary according to the issue to which the belief is relevant. While the assessment of reasonableness is an objective exercise, it also has a normative component because an assessment of the gravity of the issue in relation to which reasonable grounds are relevant will involve a moral judgment. Whether or not a person with whom it is proposed to have sexual intercourse is over the legal age of consent is a matter of some gravity in relation to which some care ought to be taken, particularly by a person who is substantially older.
If the offender had the belief which he asserted, it was because he was told by the complainant that she was 18 years old at some point. The offender and his friend of similar age were associating with a group of young women who appear not to have had stable accommodation and who were being supplied with methamphetamine by the offender or his friend. They also spent time consuming marijuana. The offender had an arrangement with the victim whereby he would supply methamphetamine in exchange for sexual intercourse. He recognised that the victim “looked young”. She did in fact look younger than 16, with a number of witnesses identifying her as appearing to be in the range of 11 to 15 years at about that time. He knew that she was in foster care and therefore could not have been the age which she told him. In those circumstances, the statement by the victim that she was 18 years old, which he believed to be incorrect, did not provide reasonable grounds for a belief that she was 16 years or older.
Objective seriousness
In assessing the objective seriousness of the offending conduct it is necessary to have regard to the scope of the activities covered by the offence provision.
Section 56 in the form relevant to the present case was inserted by the Crimes Legislation Amendment Act 2018 (ACT). The substituted provision was derived from the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse and the model provisions proposed by the Royal Commission contained in Appendix H of its Criminal Justice Report: see footnote 3 of the Explanatory Memorandum. The legislative history and drafting of the provision has been recently examined in some detail in KN v The Queen [2019] ACTCA 37.
The Explanatory Memorandum for the bill which became the amendment provides a useful summary of the mischief addressed by the substitution of a provision based to some extent upon the model provision, for the previous formulation of s 56. It is unnecessary to repeat the background to the present formulation of s 56 there set out.
The Explanatory Memorandum gives examples of the circumstances in which the offence of maintaining a sexual relationship would overcome the difficulties of a situation where abuse had occurred over a period but particularisation of the dates, times and circumstances was not possible.
The Explanatory Memorandum gives an example of the operation of the provision as follows:
The section is intended to clarify that the unlawful sexual relationship, rather than individual sexual acts, constitutes the actus reus for the offence.
The sexual acts may each being [sic] particularised as courses of conduct. For example:
· penile/vaginal sexual penetration under section 55 (Sexual intercourse with young person) occurring approximately weekly over a period of 12 months between specified dates; and
· oral sexual penetration under section 55 (Sexual intercourse with young person) occurring approximately weekly over a period of 12 months between specified dates.
Such particulars could be supplemented by reference to the first and last occasions when the sexual acts occurred, if the complainant remembers them. The jury may be satisfied that the accused maintained an unlawful sexual relationship if they are satisfied of some or all of the alleged occasions of abuse. If the jury is satisfied of the oral penetration but not the penile/vaginal penetration, it could still be satisfied of the relationship if it is satisfied that the oral penetration occurred on two or more occasions.
This extrinsic material indicates that the provision can extend to situations of long-term sexual abuse by persons in authority over young persons. The purpose of the provision was to permit such abuse to be criminally penalised in circumstances where, because of the nature of the abuse or the age or other personal circumstances of the victim, it was not possible to particularise and hence separately charge the individual unlawful acts.
In the present case there were only two acts of sexual intercourse proven. Sexual intercourse is generally more serious than other forms of unlawful sexual act. There were no aggravating features associated with the physical acts themselves, other than the failure to use a condom which carried with it, at least, the possibility of the transmission of disease. The offending obviously involved a gross exploitation of the vulnerability of the victim by reason of the difference in age between the offender and the victim and the exploitation of the victim’s use of methamphetamine. Given the range of conduct which may be the subject of this offence provision I assess the objective seriousness of the offending in the present case to be in the mid range of objective seriousness for this offence.
Subjective circumstances
The subjective circumstances of the offender are detailed in a pre-sentence report prepared by ACT Corrective Services. The offender is 48 years old. He was born in New South Wales (NSW). He reported to the author of the pre-sentence report that his parents separated when he was four years old. His mother formed a new de facto relationship when he was six years old. He recalled his mother and her new partner drinking heavily and that his stepfather physically abused him and his mother.
The offender is not of Indigenous descent, however he considers himself to be Indigenous because he was raised by his stepfather who he claimed was of Indigenous descent. He has no cultural engagement with any Indigenous communities or programs.
His stepfather is no longer alive. He has not had contact with his mother since he entered into custody in relation to the current offence. Despite this he hopes to reside with her upon his release from custody. He is single. He has three adult children who he has no contact with.
He left school in Year 8. He did not complete further education. He undertook removalist and labouring work until 2013 when his drug use became problematic. Prior to entering custody he was reliant upon Centrelink payments.
Alcohol has been a problem for him in the past. However, he stated that he has not consumed alcohol for approximately 13 years. He reported that he first smoked cannabis at eight years of age. He has smoked the substance daily for as long as he can remember. Prior to entering custody he smoked approximately one gram of cannabis each day. The offender stated that he commenced using amphetamines and methylamphetamine at 14 years of age. Between 2013 and entering into custody he consumed approximately two grams of methylamphetamine daily. He advised that he has never attempted to address his drug use through counselling or intervention.
He reported that he was in good physical and mental health.
A reference was tendered which indicated that for two years from 2007 he boarded with and had a positive relationship with members of the family of a long-term friend of his. During that period he worked in the family’s landscaping business and was described as an honest, trustworthy, hard-working and gentle person.
In relation to his attitude towards the offences, there was some cross-examination of the author of the pre-sentence report about precisely the questions that the offender was asked, having regard to the possibility of confusion on the offender’s part about whether he was answering questions about the current offending or another matter which is still pending. In light of the reasonable possibility of confusion on his part, I will disregard that part of the report which assesses his level of insight into his actions, whether he took responsibility for his actions and his risk of reoffending. However, there was no evidence before the court that he was remorseful, had insight into his conduct or accepted responsibility for his conduct. I do not accept that I can act upon his counsel’s statement from the bar table to that effect in circumstances where the Crown has made it clear that those statements are not accepted.
Two further points can be made about the asserted remorse. First, I have rejected the factual foundation for his asserted remorse, namely that he had a belief that the victim was over the age of 16 years and he would not have had intercourse with her if he had known her true age. Second, the proposition that he would not have had sexual intercourse with her had he known her age is inconsistent with his conduct disclosed in the document relating to separate proceedings which was tendered by his counsel: see Exhibit 3, in particular [13]-[14].
Criminal history
The offender has a substantial criminal history as an adult. In NSW he has drug, property, driving and various minor offences prior to 1994. In 1994 he received his first custodial sentence for knowingly taking part in the supply of a prohibited drug. There was some minor driving and violence matters dealt with by fines before 2001, when he was given a suspended sentence of imprisonment for common assault. He was given a suspended sentence of imprisonment of two months for possessing a prohibited drug in 2003. In 2004 and 2005 he was convicted of driving offences which were dealt with by fine as well as property damage, drug possession and custody of stolen goods which were dealt with by fines and community service orders. In 2006 he was convicted of two counts of assault occasioning actual bodily harm for which he received sentences of imprisonment of 12 months and 18 months. Consistent with what was said in the reference to which I have referred, there is then a gap in offending until 2012 and the offender was only dealt with for that offending in 2016. There was some further drug and motor vehicle offending in 2016 and 2018.
So far as the ACT is concerned, offending commenced in 2002. The next offending was in 2012, being a drug possession offence. In 2012 he was convicted of drug-driving and in 2015 and 2016 he was convicted on three counts of failing to appear after a bail undertaking. It was this offending which lead to his first custodial sentence in the ACT. He then has another conviction for drug driving in 2018 for which he received a suspended sentence of imprisonment.
This morning Burns J sentenced the offender for sexual intercourse without consent and recklessly inflicting grievous bodily harm. As the charges indicate, they involved very serious sexual offending. The offending involved an adult. It occurred on 9 August 2018, that is, shortly before the offending for which he is now being sentenced. Burns J imposed a sentence of imprisonment of six years for the sexual intercourse without consent and six years and nine months for recklessly inflicting grievous bodily harm. The second sentence was cumulative as to two years and six months upon the first giving an aggregate sentence of eight years and six months. The sentence was backdated to 25 October 2018. The non-parole period was approximately 70% of the head sentence.
The offender’s criminal history is a long one. Of significance is the gap in apparent offending between 2006 and 2012. Otherwise, and apart from the recent serious sexual offending, the offending has not been of the most serious nature and reflects long-term problems with illicit drugs. Up until the offending for which he was sentenced by Burns J there were not previous sexual offences of the nature of the present offence. The long‑term, persistent non-compliance with the law limits the scope for leniency. The existence of the gap in offending and the terms of the reference tendered does indicate that although he has a long history of offending and illicit drug use, in the right circumstances he is capable of living lawfully.
Plea of guilty
The offender was found guilty by a jury after a trial. No reduction in sentence on account of any plea of guilty is available.
Time in custody
The offender has been in custody for in excess of one year, since 25 October 2018. That period has been taken into account in the sentence imposed by Burns J which was backdated so that it commenced on 25 October 2018. While I take into account the period of pre-sentence custody, because it has been taken into account in the manner that it has by Burns J, I do not consider that it is appropriate to backdate the sentence that I would otherwise impose on account of it.
Comparable cases
I was referred to two other sentences imposed for maintaining a sexual relationship with a young person contrary to s 56 of the Crimes Act.
In R v Degioannis [2019] ACTSC 47 the offender was sentenced for maintaining a sexual relationship as well as child exploitation material offences and failing to report a change of personal details as a sexual offender. The victim was 15 years old. She lived with the offender who was in his late thirties. She had been living with him for a couple of months, regularly using ice and heroin with the offender. The offending involved multiple acts of sexual intercourse. The offender had a criminal history which included a substantial period of imprisonment for a prior offence of sexual intercourse with a young person, as well as other significant sentences of imprisonment. The sentence imposed for the contravention of s 56 was seven years and seven months reflecting a starting point of nine years’ imprisonment.
In R v KN (No 2) [2019] ACTSC 5 the victim was 10 or 11 years old. The offender had gained access to her because he was in a relationship with her mother. The offending involved oral sex on multiple occasions (more than four occasions), which involved what was described as a game in which the offender put his penis in her mouth on the pretense that it was an “applicator” and had on it chocolate spread, peanut butter or marshmallow fluff. The sentence imposed was a sentence of five years and six months.
Consideration
The offending in the present case is very serious. As I have indicated earlier it involved the gross sexual exploitation of a vulnerable child by a much older man. I take into account his disadvantaged upbringing and his extremely early introduction to the use of illicit drugs. I accept that such an upbringing will have had consequences for him during the whole of his life.
The offender’s criminal history does not provide a significant foundation for leniency. The gap in offending between 2006 and 2012 provides some indication that there are circumstances in which the offender can live lawfully. He is not beyond hope of rehabilitation. However, the sentencing purposes of denunciation, general deterrence and the recognition of the harm done to the victim all require a significant full-time custodial sentence. In particular, the sexual exploitation of children below the age of consent by those involved with illicit drugs is a matter in relation to which general deterrence is of particular importance.
It is relevant to take into account the fact that in the present case what has been proved beyond reasonable doubt is two occasions of sexual intercourse with a young person. That is sufficient to establish the offence against s 56. Had the two occasions of sexual intercourse been charged and proven separately, the maximum penalty would have been imprisonment for 14 years on each count.
The issue of totality is also significant. The offender has today been sentenced to imprisonment by Burns J. The present sentence must have regard to the totality of the combined sentences imposed today. This requires a degree of concurrency with the sentence imposed by Burns J, even though the circumstances of the offending are not related in a way that would otherwise justify concurrency. The sentence that will be imposed is a sentence of five years’ imprisonment, two and half years of which will be cumulative upon the sentence imposed by Burns J. The aggregate sentence to be served by the offender as a result of the sentences imposed by Burns J and the sentences that I impose now is 11 years’ imprisonment. The existing non-parole period is automatically cancelled by the imposition of a new sentence. It is therefore necessary to reset the non-parole period. In my view, consistently with the approach adopted by Burns J it is appropriate that the non-parole period be approximately 70% of the head sentence. This will give a non-parole period of seven years and eight months.
Orders
I therefore sentence the offender as follows:
1. On the charge of maintaining a sexual relationship with a young person (SCCAN2019/25) the offender is convicted and sentenced to imprisonment for five years from 25 October 2024 until 24 October 2029.
2. The non-parole period is a period of seven years and eight months which commences on 25 October 2018 and ends on 24 June 2026.
| I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 13 February 2020 |
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Amendments
13 February 2020 Replace “R v Sirl” with “R v Sirl (No 3)” Case Title
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