Bo Jeremiah Sirrine, 23, and Tonda Royal, 55, once shared a cell at the Flagler County jail. They also shared a predilection for underage girls. But how they were punished reveals a vast disparity in the way two men facing similar charges can see their fates diverge radically.
Sirrine is a free man. Royal is serving 12 years in state prison.
A few weeks ago, Sirrine walked out of the Flagler County jail after spending more than two years there on charges of raping a 13-year-old Palm Coast girl. He’d initially faced two counts of lewd or lascivious battery of a girl younger than 16, second degree felonies that exposed him to up to 30 years in prison. According to his arrest report, he and the girl met on social media, talked on the phone, and she invited him to her home, where he first went one night after midnight, entering the girl’s bedroom through a window. They talked, kissed, and had sex. He did the same the next night, and the night after that. His admissions to authorities left no room for doubt: “The defendant admitted to having sexual intercourse with the victim, vaginal, anal, as well as orally.”
He was found out only because the girl’s mother discovered her daughter in a bra and underwear and Sirrine in her room in a pair of boxer shorts, trying to hide from the mother on the other side of the bed. The victim would subsequently write a detective to also detail the specifics of the sexual encounters. Detectives further confirmed the sexual nature of the encounters with DNA collected from the girl’s bed, connecting Sirrine to the DNA with only a one in 700 billion chance that it wasn’t him. (The known population of the universe is 7.7 billion human beings.)
It was not the sort of case that a defendant could realistically defend against, even if the sex is consensual. The difference in age between perpetrator and victim being what it is, it is unlawful sex regardless. The consensual nature of the encounter makes it statutory rape.
But Sirrine hired a private attorney, Michael Lambert, one of the most effective in the circuit. It paid off. It also helped that the victim appeared to have had misgivings about getting Sirrine in trouble. That’s irrelevant under Florida law, as the prosecution made clear in a motion to quash any mention of that in court. The victim’s “feelings on whether the defendant should be charged criminally in this case or whether she felt guilty about the defendant getting into trouble is not relevant and the defense should not be permitted to question her about such issues,” Assistant State Attorney Milissa Clark argued in a motion.
It didn’t get that far. The girl’s feelings appear to have played a role after all: prosecutors do take family and victim preferences into account when deciding how to prosecute a suspect. In cases involving sex with minors, the trauma entailed by a minor having to testify is always a factor in such decisions, crucial as the testimony is, and if the victim refuses to testify, or appears to be an uncooperative witness, the prosecution has little choice but to seek other approaches.
“If I can resolve a sex case with a child victim, where I don’t have to put them through trial,” Clark, who prosecuted the cases of both men, said at Royal’s sentencing, “that’s certainly my priority.”
In Sirrine’s case, the prosecution agreed to a plea that reduced the charges to felony child abuse. No prison time. No lifetime designation as a sexual predator or offender. Not even an adjudication of guilty: the judge withheld adjudication, which means Sirrine is not considered a felon.
On Monday, Sirrine’s probation orders were filed at court: five years’ probation. Compared to sex-offender probation, it’s quite permissive. The probation terms have no restrictions on his hours, no curfew, no ban on the use of the Internet or social media, except he can’t be a member of any dating app. He had met the 13-year-old victim through one such app, “Plenty of Fish.” Some restrictions do reflect the fact that his arrest report reflected he’d repeatedly raped a child, however: he is to have no unsupervised contact with minors, including minor family members, but that’s pending a psycho-sexual evaluation. If that required evaluation finds he’s no threat to minor children, the restriction will be lifted. For five years he’s not to work in any place where children gather, including schools, day care centers and the like. Otherwise, the former Navy recruit may go about his life a free man.
Tonda Royal was accused of having sex with a 16-year-old girl once. The charge was unlawful sexual activity with a minor, also a second-degree felony. He had befriended the girl when living in a camper in the Mondex. One day he invited her to his trailer, supposedly to show her the rooster or chicken he’d killed after the animal had been attacking the girl. He invited her in. They had sex. There was DNA evidence.
Royal, indigent, got a public defender. At trial, Assistant Public Defender Reginal Nunnally invoked racial motives in the prosecution–or, as the case may have been from Royal’s perspective, persecution–of Royal. His victim was white, and was friends with a group of people who had it in for Royal, who is Black, in the Mondex. That part may have been quite believable, especially in west Flagler. What came next defied all credibility, as does the legal advice that allowed Royal to peddle the story he did.
Royal himself on the stand claimed he’d never had sex with the 16-year-old girl. No, he’d had sex with a different girl, whom he named but whom the defense never produced at trial as a witness. That girl stole his sperm-filled condom and, in a conspiracy with the 16 year old, used it to insert the sperm in the girl and pin the rape of the 16-year-old on Royal.
Yet Royal also admitted to telling the 16-year-old girl’s mother that he’d had sex with her (“I fucked up, but it’s not what you think,” he told the girl’s mother. He wanted to tell her that it was consensual).
The prosecution never claimed that the sex was not consensual. Had it done so, the charge would have been more severe, exposing Royal potentially to life in prison. The jury, unsurprisingly, returned a guilty verdict.
Among their lengthy set of instructions, judges invariably tell juries that they are not to hold it against a defendant if the defendant chooses not to testify. They never tell juries that it’s the defendant’s right to take a case to trial. That’s implicit. They also never tell them about plea deals made or not made. But judges know all that. And implicit in a guilty verdict is the disqualification from any sort of deal or the leniency that may have been the result of a deal. Judges are constrained by sentencing guidelines. But those remain guidelines, not commands, and judges are allowed to be more lenient than the guidelines–do go with a “downward departure” from the guidelines, in court lingo.
Before sentencing, Royal and Nunnally further argued technical issues of the case, raising questions about the definition of “sexual union,” the victim’s “inconsistencies” and her credibility, in Nunnally’s words. They sought to have a new trial. They were not successful. “I can’t say that there wasn’t sufficient evidence to support the charge,” Circuit Judge Terence Perkins said, before moving on to the sentencing.
In contrast with the Sirrine case, the victim in Royal’s case had submitted a “victim impact statement”–another element outside the trial’s parameters that plays heavily at sentencing, almost always against the defendant. Royal took the stand in his own defense at sentencing and quoted Sir Matthew Hale, chief justice during Charles II’s reign.
“It is true that rape is the most detestable crime, and therefore ought to severely and impartially be punished by death,” Royal told the judge, apparently quoting from Hale. “And I agree with him. Okay. ‘But it must be remembered that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, who are never so innocent.'”
The judge reminded him that he’d been found guilty of sex with a minor, not “rape,” and would sentence him accordingly. “You can stand up there and read the phone book,” Perkins told him. “You and I both know that doesn’t help you.” But he still allowed him to go on at length.
Royal is not exactly the poster child of a wronged man: he had previously served 13 and a half years on federal charges (he’d been convicted of armed robbery then “became a drug dealer,” in his own words, then printed counterfeit bills). He is a convicted felon many times over and has a violent past, and his violence did not abate when he was at the county jail: he was charged with battery against Sirrine after Sirrine threw his clothes and belongings out of the cell they shared. (The charge was dropped.)
His past played no role at trial: the prosecution was not allowed to bring it up, but standards are different at sentencing. The prosecution had before trial offered Royal a plea deal: 6 years, based on how his past history scored him on a standard penalty scoresheet. (The defense and prosecution disagreed on the scoresheet’s tally, but the judge agreed that the low end of the tally was, in fact, six years.)
At sentencing, Clark withdrew that number and pressed for the full 15 years. Sparing the child victim the need to testify “was the only reason why I considered a downward departure,” and made the offer of a leaner sentence, she said. It was “not for the benefit of Mr. Royal, but for the benefit of the victim not being — having to be on the stand, having to go through deposition, having to testify and go through cross-examination. As the court is aware, it’s a difficult process for anybody, much less a child. So that’s why I made the offer that I did.”
Implicit in that statement is the retaliatory nature of the harsher sentence she was now seeking. Though six years would have been fine before trial, she now was asking for more than double that, because Royal’s decision had resulted in the girl having to testify. That, in effect, means that Royal was being harshly penalized for having sought to defend himself at trial, assuming the judge went along.
Nunnally in court argued for a “downward departure,” and–in a remarkable admission of steps missed along the way–said had all guideline numbers been known before trial, Royal would have taken the six-year deal.
“He did not do anything to violate” his federal probation, Nunnally told the judge, “except get arrested because he was accused of having sex with somebody, not accused of robbery, not accused of doing drugs, not accused of selling drugs, not accused of anything of a violent nature.” She said he “helped people. He helped his mother. He helped everybody. And that was his way of giving back to the community to show that he is changed.”
She asked the court for a sentence of 72 months: six years, which would have meant five years, because he’d already served exactly a year at the county jail and gets credit for that. And with early release after serving 85 percent of his sentence, he’d have been eligible to leave prison after a little over four years.
Perkins had none of it. He sentenced Royal to 12 years, followed by three years’ sex-offender probation. “I accepted the bottom of the guidelines, 71.75 months,” Perkins said. “And while I agree that that would be a lawful sentence in this case, for the reasons that are particular to the facts of this case, I find that it also would be an inappropriate sentence here.”
Unquestionably, Royal’s decision to seek a trial cost him. On April 20, the Fifth District Court of Appeal upheld Royal’s conviction.
Two weeks ago Royal, serving time at a state prison in Milton, heard about Sirrine’s release. “I am told that his charge, I would argue was more severe than mine, was reduced to child abuse,” he wrote. “Why? How did Bo Sirrine acquire this escape from justice in Flagler County? WHO allowed it?”