Judge praises victim for bravery, passerby for responding to calls for help
Silburn, 19, pleaded guilty to the offense, which occurred last November in the Eastern Districts.
Crown counsel Candia James said the victim, who was in her early 20s, had spent the evening socializing with friends at a neighborhood bar. As she began walking home,around 1 a.m., she became aware that Silburn was following her. She had known him about six years, but they were not friends. She had seen him at the bar drinking and smoking, but had not spoken to him other than to give him a cigarette.
As he came up behind her, he said, “I coming with you.” The woman pointed out that his ride was leaving and he should catch up with that vehicle. Instead, Silburn used rude language to tell the driver what his intentions were.
He then started walking with the woman, told her he wanted to have sex with her and said, “Let’s go to the beach.” She said no several times, but he persisted. He then put his hand on her shoulder and told her, “I have loved you for a long time and I’m not leaving until I get what I want.”
She told him he was not getting anything and he should go home. He then started pulling on her clothes and dragged her toward two coconut trees on the beach. He pushed her and she fell. He began removing her clothes but she fought him off. She managed to get away and run toward the road, but she tripped over a board that had a nail sticking out. It pierced her toe, slowing her down.
Silburn caught up with her and again pushed her down, this time with her head in the sand. She kept screaming and fighting as Silburn attempted to assault her, but she kept pushing him off. As she continued to shout for help, he grabbed her by the neck and then by the mouth, telling her to shut up.
She slapped his hand away and continued to scream for help.
A man walking on the road began coming toward them and when Silburn saw this, he let go of the woman. The man recognized Silburn as someone who had been at the bar that evening, but he did not know him. The man started to chase Silburn, but he got away. The woman estimated that the incident had lasted about 20 minutes.
Silburn was arrested and initially denied knowing the woman or being at the bar that night.
However, as defense attorney Fiona Robertson pointed out, he had pleaded guilty at an early stage. She also explained that although he did have previous convictions they were not of a sexual nature.
Justice Michael Mettyear referred to a social inquiry report which stated that Silburn’s attitude toward this offense was one of blaming the victim and attempting to minimize his own conduct.
Ms. Robertson submitted a letter Silburn had written expressing horror at what he had done, his sorrow and a promise to not do it again.
Ms. Robertson told the court that a psychological report showed Silburn to have a lack of impulse control. To his credit, he did not put his victim through the trauma of a trial. He had not used a weapon against her and the injuries were not serious, she said.
Ms. James cited guideline sentences announced in 2002: for rape, conviction after trial, 10 to 12 years.
Justice Mettyear emphasized that an important factor in an attempted rape is whether the offender stopped on his own because he had second thoughts, or whether he did not fulfill his desire because he was fought off. Still, he said, the sentence for an attempt would have to be reduced because the act was not completed.
The judge took into account Silburn’s age, his poor upbringing, learning disabilities and drug problem. He also considered the defendant’s previous convictions and circumstances of this case.
When a perpetrator has second thoughts and desists of his own accord, there can be a big discount in the sentence for attempted rape, he reiterated. In Silburn’s case, however, the only reason the act was not completed was because of the bravery of the victim and the public-spirited conduct of the man who responded to her screams.
Had the judge been dealing with the full offense of rape, he said, the sentence would have been six-and a- years because of all the mitigating features. Since this was an attempt, he reduced it to four-and-a-half years. He applied the discount for a guilty plea and arrived at the final total of three years.