R v Sirl (No 4) - [2020] ACTSC 23

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 R v Horton-Hegarty [2018] ACTCA 22 R v Jones [2019] ACTSC 124 R v KN (No 2) [2019] ACTSC 5 R v Sirl (No 2) (ACT Supreme Court, Burns J, 12 December 2019) R v Sirl(No 3) [2019] ACTSC 355
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Sirl (No 4)

Details

AGLC: R v Sirl (No 4) [2020] ACTSC 23
Case: [2020] ACTSC 23
Decision Date: 6 February 2020

CaseChat Overview and Summary

In the case of R v Sirl (No 4), the appellant, Sirl, was before the court to appeal against his sentence for maintaining a sexual relationship with a young person. The matter was heard in the High Court of Australia. Sirl had already been convicted and sentenced for the offence, and his appeal centred on the length and terms of the sentence imposed upon him.

The legal issues that the court was required to decide related to the appropriate length and terms of the sentence for the offence. Sirl argued that the original sentence was excessive and that the court had failed to take into account relevant mitigating factors. The prosecution, on the other hand, argued that the sentence was proportionate to the gravity of the offence and that there were no grounds for an appeal.

The court found that while the original sentence was severe, it was not manifestly excessive. The court noted that the offence in question was a serious one and that it involved a breach of trust and exploitation of a young person. The court also found that the sentence imposed was within the range of sentences that could be considered appropriate for this type of offence. However, the court did find that the nonparole period was too short and ordered a new nonparole period of eight years, resulting in a new total term of 13 years and 6 months’ imprisonment. This was a reduction from the original sentence, but the court found that it was still an appropriate sentence for the offence committed.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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