R v Sirl (No 4)
[2020] ACTSC 23
•6 February 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Sirl (No 4) |
Citation: | [2020] ACTSC 23 |
Hearing Date(s): | 6 February 2020 |
DecisionDate: | 6 February 2020 |
Before: | Murrell CJ |
Decision: | Offender sentenced to five years’ imprisonment, with a new nonparole period of eight years of the new total term of 13 years and 6 months’ imprisonment. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Maintaining sexual relationship with young person – Accumulated sentence |
Legislation Cited: | Crimes Act 1900 (ACT) s 56 Crimes (Child Sex Offences) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT) ss 33, 35 |
Cases Cited: | KN v The Queen [2019] ACTCA 37 R v Degioannis [2019] ACTSC 47 |
Parties: | The Queen (Crown) Robert Glen Sirl (Offender) |
Representation: | Counsel S Naidu (Crown) K Musgrove (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender) | |
File Number(s): | SCC 189 of 2019 |
MURRELL CJ
Introduction
Following a criminal case conference, on 6 February 2020, the offender indicated that he would plead guilty to the offence that, between 1 August and 25 October 2018, he maintained a sexual relationship with a young person, contrary to s 56(1) of the Crimes Act 1900 (ACT) (Crimes Act). The offence carries a maximum penalty of 25 years' imprisonment.
Having regard to the stage at which the plea was indicated and other relevant considerations, the appropriate discount under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) is between 15 and 20 per cent. I note that the victim was spared the need to give evidence.
Facts
On 29 August 2018, the offender (who was then 47 years old) met the complainant (who was then 14 years old). While the complainant was “couch surfing” with friends, she met the offender. The complainant was staying at a residence with girls of a similar age. The offender attended the residence from time to time, supplying methylamphetamine to the complainant.
The offender and the complainant exchanged phone numbers and began to spend time together. The complainant began to stay with the offender at a caravan park and elsewhere. The offender and the complainant often used cannabis and smoked methylamphetamine, which was supplied by the offender.
From mid-September 2018, the offender and the complainant had frequent sexual intercourse. No condom was used.
Initially, the complainant told the offender that she was 18 years old. Later, she said that she was about to turn 16 years old. On her birthday in mid- to late September 2018, the complainant told the offender that she was turning 15 years old. He became angry with her for misleading him. Nevertheless, until the offender was arrested for an on 25 October 2018, he continued to have frequent sexual intercourse with her.
Towards the end of the relationship, the offender used sex toys on the complainant in ways that caused her discomfort. According to the complainant, when she objected, the offender's response was to accuse her of cheating on him. Sometimes, the complainant felt uncomfortable about sexual interaction, but she continued because she felt affection for the offender.
At times during the relationship, the offender said things such as “this is wrong” and “you are too young” and encouraged the complainant to return to her family. The offender felt affection for the complainant.
The offender has been in custody since 25 October 2018, when he was arrested for a similar matter (see below).
On 29 October 2018, an officer of the Child Youth Protection Team interviewed the complainant, who disclosed her sexual relationship with the offender. Initially, she declined to make a police statement because of her feelings for the offender. However, on 15 February 2019, she participated in a police interview.
The offender was charged with this offence on 25 March 2019.
Objective seriousness
An offence against s 56 of the Crimes Act occurs if an adult engages in “sexual acts” with a “young person … on 2 or more occasions and over any period”: s 56(2) of the Crimes Act. A “sexual act” is quite broadly defined and includes an attempt to commit a sexual offence. “Young person” is defined to mean a person who is under the age of 16 years.
The unsatisfactory aspects of s 56 were discussed in KN v The Queen [2019] ACTCA 37 (KN), but they are not relevant for present purposes. In this case, in addition to engaging in sexual acts on two or more occasions, there was a “sexual relationship” between the offender and the complainant.
In this case, the nature of the sexual acts in question (penile/vaginal intercourse) were more serious than many sexual acts that may be the subject of a s 56 offence. A s 56 offence occurs when there are two sexual acts; in this case, the offence involved many sexual acts. Those acts occurred over a relatively short, but not insignificant, period of time, five or six weeks (from mid-September to late October 2018).
Although the complainant was 14 and 15 years old at the time of the offence (at the upper end of the “young person” range covered by the offence), there was a large age difference between the complainant and the offender.
The offender was an adult who had the practical responsibility for the complainant; she was more or less living with him at the time when most of the sexual acts occurred and she lacked the protection of her parents or another responsible adult. At least in a de facto sense, the offender was in a position of trust or authority vis-à-vis the complainant. The offence was committed in the context that, wittingly or unwittingly, the offender exploited the complainant's vulnerability arising from her youth and homelessness and created a dependency by providing her with accommodation and drugs.
There is no suggestion that this was a sex for drugs arrangement or that the offender was responsible for introducing the complainant to drugs.
As I observed in R v Jones [2019] ACTSC 124 (Jones), a matter which involved maintaining a sexual relationship with a 15-year-old girl, at [31]:
The victim's lack of opposition to the sexual activity is not a mitigating factor. By virtue of age, any child lacks the capacity to give real consent. Further, it is presumed that a relationship between an adult and a child causes significant harm to the child: R v Horton-Hegarty [2018] ACTCA 22 at [46].
Victim impact
No victim impact statement was provided. However, the unavoidable inference is that the complainant was significantly harmed by the offence: R v Horton-Hegarty [2018] ACTCA 22 at [46].
Criminal history
In the ACT, the offender has convictions for driving offences, failing to appear on a bail undertaking, common assault, and drug possession. In NSW, he has been convicted of burglary, assault occasioning actual bodily harm, common assault, and driving and drug-related offences. Until recently, he had served only short periods in prison, including a sentence of 18 months' imprisonment with a nonparole period of 12 months that was imposed in 2006 for an offence of assault occasioning actual bodily harm.
However, on 12 December 2019, the offender was separately sentenced by Burns and Mossop JJ for serious sexual offences that had occurred at about the same time as the offence for which I am to sentence him.
On 11 September 2019, in a trial before Burns J, the jury found the offender guilty of one count of sexual intercourse without consent and one count of recklessly inflicting grievous bodily harm. The convictions placed the offender in breach of two good behaviour orders that had been imposed by the Magistrates Court on 9 July 2018.
The victim was a fellow resident at a caravan park where the offender lived. Previously he had had a casual sexual relationship with her. On 9 August 2018, he invited her to his residence, where he held her down and had non-consensual penile/vaginal intercourse and then penetrated her with a sharp edged or bladed object, which caused extensive bleeding from her genitalia. The offender declined the victim's request for assistance. Eventually, she was able to ring an ambulance and was conveyed to hospital, where she underwent lifesaving surgery to prevent further blood loss.
In sentencing the offender on 12 December 2019, Burns J said that the offence of sexual intercourse without consent was a particularly violent and degrading sexual assault and characterised it as falling within the upper range for such offences. His Honour considered that the offence of recklessly inflicting grievous bodily harm was also within the upper range for such offences. His Honour described the offender's prospects for rehabilitation as “guarded”: R v Sirl (No 2) (ACT Supreme Court, Burns J, 12 December 2019).
For the offence of sexual intercourse without consent, his Honour sentenced the offender to six years' imprisonment, from 25 October 2018 to 24 October 2024. For the offence of recklessly inflicting grievous bodily harm, his Honour imposed a sentence of six years and nine months' imprisonment, from 25 July 2020 to 24 April 2027. The total term was eight years and six months' imprisonment. For the matters that were the subject of good behaviour orders, his Honour imposed short concurrent sentences. His Honour set a nonparole period of five years and 11 months (70 per cent of the total term), expiring on 24 September 2024.
Following a jury trial, on 12 December 2019, the offender was sentenced by Mossop J for an offence of maintaining a sexual relationship with a young person: R v Sirl (No 3) [2019] ACTSC 355. The sentence was imposed after the sentences imposed by Burns J and with knowledge of those sentences.
On two occasions in October 2018, the offender had engaged in sexual intercourse with a 15-year-old girl who was in foster care. She had met the offender through a group of girls to whom the offender (or an acquaintance of the offender) supplied drugs. The offender had agreed to supply the victim with methylamphetamine in exchange for sexual intercourse. Mossop J found that the offender had failed to establish on the balance of probabilities that he had believed the victim to be 16 years of age or more.
Because his Honour's remarks at [16] concerning the objective seriousness of the offence are relevant to an assessment of the objective seriousness of the offence in this case, I will repeat them:
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.
I interpolate that the present offence is more objectively serious than that with which his Honour was dealing because it involved many more acts of sexual intercourse and because, at the time of most of the acts, the complainant was, in effect, in the offender’s care.
Mossop J sentenced the offender to five years' imprisonment, making two years and six months cumulative upon the sentence imposed by Burns J; the new sentence was to run from 25 October 2024 to 24 October 2029. As a result, the total sentence became 11 years' imprisonment. His Honour imposed a new nonparole period of seven years and eight months’ imprisonment, ending on 24 June 2026 (70 per cent of the total sentence).
The offender has appealed against the convictions in the trial before Burns J. The Crown has appealed against the sentences imposed in the matters before both Burns and Mossop JJ.
The offender's sexual offending in the latter part of 2018 is a cause of grave concern. However, at least it can be said that it was confined to that limited period.
Unfortunately, three chronologically and factually related matters have come before three different judges. Consequently, issues of accumulation and totality must be considered by judges who may have different approaches to the exercise of the sentencing discretion.
Subjective factors
The offender is now 49 years old.
The offender's childhood was disadvantaged; it was marred by family violence and drug use. His parents separated when he was four years old. When he was six years old, his mother began a new relationship. His mother and her new partner were alcoholics, and the offender's stepfather was physically abusive towards the offender and his mother. The offender's stepfather died in 2009.
I accept the offender's submission that disadvantage of such a profound nature would undoubtedly continue to impact upon the offender despite his mature years.
The offender's stepfather was of Aboriginal descent and, because he was raised by his stepfather, the offender considers himself to be an Aboriginal person. However, he has no cultural engagement with the Indigenous community.
Since his arrest, the offender has had no contact with his mother.
The offender is single. He has three adult children with whom he has no contact.
The offender left high school during Year 8, at 13 or 14 years of age. He has held employment as a removalist and labourer. However, because of problematic drug use, since 2013 he has not engaged in legitimate employment. At the time of his arrest, he was receiving Centrelink benefits.
Earlier in his life, the offender abused alcohol. For most of his life, he has abused illicit substances. He first smoked cannabis at eight years of age and, prior to his arrest, he used it daily, smoking approximately one gram per day. At 14 years of age, the offender began to use amphetamines and methylamphetamine. Prior to his arrest, he consumed approximately two grams of methylamphetamine daily. He has never engaged in drug rehabilitation. In custody, his health care has been undertaken by Winnunga Health Services.
During his period in custody, the offender has not been the subject of disciplinary action. He is employed as a groundsman and he enjoys that work.
When interviewed for a pre-sentence report, the offender accepted responsibility for his actions but pointed out that the complainant had lied about her age. However, he agreed that he had continued the relationship after he had learned her true age. He demonstrated limited insight into the impact of his conduct on the complainant.
The authors of the pre-sentence report assessed the offender as at medium to high risk of general reoffending. While I take that assessment into account, I have not examined the basis for the assessment in any detail so do not necessarily accept that it is the last word on the offender's prospects of reoffending. I do accept the advice of the authors of the pre-sentence report that the offender's criminogenic risk factors include his attitude to the offence, his long-term history of illicit drug use, and his history of unemployment.
Comparable cases
In R v Degioannis [2019] ACTSC 47, the offender pleaded guilty to maintaining a sexual relationship with a 15-year-old girl who had lived with him, producing and possessing child pornography and failing to comply with reporting obligations under the Crimes (Child Sex Offences) Act 2005 (ACT). The offender was in his late 30s. He had regularly provided the complainant with drugs. The offender's criminal history included a substantial period of imprisonment for a prior offence of sexual intercourse with a young person and other significant sentences of imprisonment. In relation to the charge of maintaining a sexual relationship, he was sentenced to nine years' imprisonment, reduced to seven years and seven months' imprisonment for the guilty plea.
In R v KN (No 2) [2019] ACTSC 5 (unrelated to the Court of Appeal decision in KN) the offender was convicted of maintaining a sexual relationship with a young person and five counts of engaging in sexual intercourse with a young person. The charge of maintaining a sexual relationship related to engaging in oral sex on more than four occasions with a 10 or 11-year-old complainant. The offender was sentenced to five years and six months' imprisonment.
In Jones, inter alia, the offender pleaded guilty to maintaining a sexual relationship with a young person who was 15 years old. The offender was 25 years old at the time of the offence. The offender and the complainant had been in a “relationship” involving the offender supplying the complainant with methylamphetamine and having frequent penile/vaginal intercourse over a period of five months. The relationship had led to a pregnancy. The offender had an extensive criminal history for driving matters, and common assault. The longest period that he had spent in custody was six months. He advanced reasonably strong subjective factors. For the offence of maintaining a sexual relationship with a young person, I sentenced the offender to 40 months' imprisonment, reduced from 54 months.
Sentencing considerations
The Court is required to have regard to the matters referred to in s 33 of the Sentencing Act insofar as they are known and relevant. I believe that I have referred to the relevant features above.
The sentencing purposes in s 7 that are relevant are general and personal deterrence, accountability, denunciation, and recognition of harm to the victim.
The incident for which Burns J sentenced the offender occurred shortly before the offender commenced his relationship with the complainant. Consequently, I sentence the offender in the context that his sexual exploitation of the complainant was not an isolated example of seeking sexual gratification from one person regardless of its impact on her. That consideration goes to sentencing purposes that include personal deterrence.
The only appropriate penalty is a significant sentence of fulltime imprisonment.
For the offence of maintaining a sexual relationship with a young person, I sentence the offender to five years’ imprisonment, reduced from six years’ imprisonment (a discount of 16.7 per cent).
I consider that the sentence should be accumulated on previous sentences by two years and six months. Consequently, the sentence will run from 25 April 2027 to 24 April 2032.
The total term of imprisonment from 25 October 2019 to 24 April 2032 is 13 years and six months' imprisonment (162 months' imprisonment).
In relation to the imposition of a nonparole period, my approach differs from that of my brother judges. One cannot predict the offender's prospects of rehabilitation. The situation is far from hopeless. It may be that, during the very lengthy period that he will necessarily serve in custody, he can demonstrate that he is suitable for release into the community. Consequently, I will impose a nonparole period that provides some incentive. The new nonparole period will run from 25 October 2018 to 24 October 2026 (eight years, just under 60 per cent of the total term).
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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Amendments
| 13 February 2020 | Amend case title to “R v Sirl (No 4)” | Case title |
| Replace “R v Sirl (ACT Supreme Court, Burns J, 12 December 2019)” with “R v Sirl (No 2) (ACT Supreme Court, Burns J, 12 December 2019)” | Cases cited, paragraph [24] | |
| Replace “R v Sirl (No 2) [2019] ACTSC 355” with “R v Sirl (No 3) [2019] ACTSC 355” | Cases cited, paragraph [26] |
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