IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT BALLARAT
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
WILLIAM BRACK (A PSEUDONYM)		

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JUDGE:	HIS HONOUR JUDGE MURPHY	
WHERE HELD:	Ballarat	
DATE OF HEARING:	18 June 2024	
DATE OF SENTENCE:	19 June 2024	
CASE MAY BE CITED AS:	DPP v Brack (a pseudonym)	
MEDIUM NEUTRAL CITATION:	[2024] VCC 916	

REASONS FOR SENTENCE
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Subject:			CRIMINAL LAW
Catchwords:		Sexual assault of a child under 16 years – Sexual penetration of a child under 16 years
Legislation Cited:	Crimes Act 1958 (Vic), Crimes Amendment (Sexual Offences) Act 2016 (Vic), Sentencing Act 1991 (Vic)
Cases Cited:		R v Verdins [2007] VSCA 62, Bugmy v The Queen (2013) 249 CLR 571, DPP v Terrick (2009) 24 VR 457, Newton v R [2023] VSCA 22, Roberts v R [2023] VSCA 92, DPP v Spottiswood [2021] VSCA 146, McPherson v R [2021] VSCA 51
Sentence:		Total effective sentence of 2 years 4 months imprisonment with a non-parole period of 17 months
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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Mr Z. Petric	Office of Public Prosecutions	
			
For the Accused	Mr N. Tsekinis	Victorian Legal Aid	

HIS HONOUR:
Introduction
1	William Brack, you have pleaded guilty to one charge of sexual assault of a child under the age of 16 and one charge of sexual penetration of a child under the age of 16.  The maximum penalties are, respectively, 10 years and 15 years' imprisonment.
2	The offending occurred on 12 and 25 October 2023 in a Victorian rural town.  The complainant in the matter was a teenage girl aged 15 years and eight months, who was living at home with her parents and siblings.
3	You had just turned 27 at the time.
Circumstances of the Offending
4	The circumstances of the offending were set out in the prosecution opening, which was read in open court yesterday and which I incorporate by reference.  In brief outline, at the time of the offending you were living with your partner and young child born in a small regional hamlet near the larger rural town.  For a few months prior to the offending, you had been working in the local supermarket and were in charge of a section of that supermarket.
5	The complainant was at school and was working as a casual employee at the supermarket between 4 and 8 pm two days per week.  Your shift ended at 5 pm, and thus there was a period of overlap at the workplace.
6	Over a period of a couple of months prior to October 2023, you and the complainant became more familiar with each other and commenced exchanges on social media.  As time passed, the discussions became more casual and moved to conversations described by the complainant as flirting, including discussing things such as sexual activity and your past issues, including struggles with depression.  You were using endearing terms in the communications.  You were using your position and conduct as a senior employee to continue to build trust and develop a more intimate relationship with the complainant.
7	On the morning of 11 October 2023, the complainant's mother attended at the supermarket to buy some milk and, after finding that your work would be delayed, invited you to the family home for lunch.  You attended there and engaged in conversation with her for about an hour.  The complainant's mother had previously met your partner and child.  You left the house and subsequently returned to the house for another hour.
8	Later that evening at about 7.30 pm, the complainant's mother received another message from you stating that you had had an argument with your partner and had been kicked out of the car.  The complainant's mother invited you back to the house to discuss the situation.  You attended there at about 8.30 pm with the whole family present.  You had a discussion with the complainant's mother in the rear yard, and the complainant was invited to join the discussion.  In that discussion, the issues were that you are having with your partner were discussed.  The complainant's mother offered to arrange for a motel room for you for the night, but you indicated that you did not have the money.  She then invited you to stay the night at the complainant's home, at her home, and you were provided with the evening meal.  The complainant vacated her room and was to move in with her brother for the night.
9	When the rest of the family had gone to bed, you and the complainant were in her room, sitting on the bed.  The two of you began exchanging intimacies leading to kissing and biting on the neck.  The complainant initially froze, and you were expressing endearments.  You returned to kissing her, and this led to you removing the complainant's top, and you then proceeded to touch and fondle her breasts and were kissing her neck, and then lifted her bra up and were kissing and sucking the left nipple.
10	These events constitute Charge 1, sexual assault, constituted by sexual touching of a child under the age of 16.  This event ended at 12.45 am when the two of you realised the time and the need to get up early the next morning for a social event.
11	The following day, you accompanied the complainant to this social event in the town.  Subsequently, you sought by messaging the complainant to have her skip school and spend time with you.  She declined to do so.  You also indicated that you wanted to meet up with her and to give her a hug and a kiss before work.
12	The complainant's mother became aware of a possible relationship between you and the complainant, and the complainant's mother was able to access her social media and your social media to confirm that there had been communication between the two of you.  When the complainant became aware of this, she panicked and went to see a friend.  Subsequently, she went home, broke down and told her parents what had happened on 12 October.  She confirmed that you had left a red mark on her left breast.  The police were notified.
13	The complainant was interviewed by the police, and the police on 18 October served you with an application for a family violence intervention order that was to be heard in the local court on 31 October 2023.
14	The proposed order was that you would not be entitled to contact the complainant.  Notwithstanding this, you expressed a desire, in communications with her, to contact her and told her that you still loved her.  You began calling the complainant at night, and the two of you would talk until one of you went to sleep.  Your continued communication with the complainant demonstrated a desire by you to continue and escalate the sexual relationship.
15	On 24 October, after you returned home from work, you spoke to the complainant at around 9.30 pm.  You engaged in a general conversation about the day.  After she had gone to bed, you contacted her and told her that you would be leaving town to move to another town, and that you would not see her again, and that you would now be working separate shifts.  Further, you said you really wanted to see her and suggested that the two of you could meet up.  You told the complainant that you were heading to a park near her house in the town and she could meet you there just to talk.  She agreed to go, as she was concerned as to your mental health and a history of self-harm.
16	At around 10.40 pm, she dressed, and exited the house, unknown to her parents.  She arrived at the park and met you at about 11.15, and the two of you then walked around the park.  You placed your arms around her and were kissing her on her head and cheek.  You sought to hold her hand and you discussed movies and her schoolwork.  You moved to another park, played some music on your phone and sat at a park bench.  You began lightly kissing her neck, pulling her closer and became rougher with her and left a temporary bite mark.  You were kissing her on the lips and then squeezing her breasts over her clothes.  You played with her hair and again kissed her neck, and then you lowered your hand and rubbed her vagina area over her clothes.  You then put your hands down her pants and again rubbed her vagina area over her underwear.  You then put your hand under her underwear and proceeded to insert one of your fingers into her vagina and moved it in and out a couple of times.  You then removed it, touched her vagina again and then repeated it a number of times.  You kept asking her whether it felt good and that it was better than over the clothes.
17	This conduct constitutes the second charge of sexual penetration of a child under the age of 16.  Around 1:30 am, you walked the complaint home, kissed her goodnight and confirmed with her that it was okay for you to call her.  Later you suggested booking a motel for the upcoming Friday so that the two of you could do more.
18	The next morning, your partner confirmed with the complainant's mother that your phone had been tracked to the complainant's neighbourhood.  There was also reference to the bruise on the complainant's neck.  The complainant's mother, when she returned home from school, received confirmation from the complainant that she had snuck out the previous night, and she then took the complainant to the local police station where the complainant made a further VARE, indicating what had happened.
19	On 26 October, you were arrested and participated in a record of interview on that date and made full admissions and admitted that you knew that what you were doing was wrong and also that you had deleted some previous communications between yourself and the complainant.
20	You were charged on that date.  There were then negotiations between your solicitors and the prosecution, and on 7 February 2024, you pleaded guilty at the local court, and the matter was referred to this Court.
Victim Impact Statements
21	Both the complainant and her mother have filed victim impact statements.  The complainant's statement is a powerful statement as to the impact of your offending on her.
22	In that statement, she refers to the impact on her in terms of nightmares, the fact that it happened in her own room, and how she wanted to get rid of the bedding and change the layout of the room to try to dispel the memory of what occurred.  She then expresses that it is not her fault, what happened.  She felt sad and angry for your partner over what had occurred and the impact on the young child.  She is reminded of these events by the fact that she sees your partner and had been seeing you previously in the supermarket.  She feels guilty when they look at her.
23	She knows that it affects her parents, particularly her mother as well as her brother, and also all people in the town seem to know what happened, and she feels guilty over that.  She does not want to have to explain to people what had happened.  She finds it difficult to go to other various places in the town, including as part of her school events.  It has also impacted on her extracurricular activities that she had been heavily involved in.
24	She gets upset when she hears anyone using your name or whenever there is any reference to sexual assault.  She says, 'The impact [William] has had on my relationship is really difficult'.  She has difficulty with her own personal relationships, as it reminds her of the events with you.  She cannot regulate her emotions.  She has breakdowns.  She forces herself not to have breakdowns in public, and has difficulties with her studies.  She feels:
I am petrified that I've hurt my inner child and that she is damaged, and I can't protect her.  I broke her.  He broke her, and she's never going to be the same again.
25	She worries about jokes at work.  She now has to go to counselling for sexual assault, and this causes all sorts of problems with transport to the location where that is to occur.  She feels scared even though you have agreed to an intervention order in her favour.  She references the impact on her parents, particularly her mother and also on her father and her family, and the disruption to the family, and the cost that has been incurred as a result of your conduct.  She is unable to be comfortable when she goes out.
26	Her mother read her own victim impact statement, and it was a powerful statement of the betrayal by you of her and of her daughter, and her guilt in the sense of being unable to protect her own daughter.  She says:
The anger I feel each day, knowing not only did he manipulate my daughter; he manipulated my husband and I...
27	She references your possible involvement in that.  Then she references the difficulties she is having watching the complainant navigate her feelings and behaviours and the strain that it has put on her own relationship with her husband.
She says:
The hardest emotion to deal with is the feeling of failure.  I failed to protect my daughter in my own house.  I failed to keep her safe.  I invited him into our house, as I fell for his lies, and for that I am eternally, always going to feel like I failed to protect my family.
28	She goes on to reference the financial impact in terms of security lighting and bedding and changes they have had to make in the house, the fact that it has impacted on her friends in the town and how she gets angry about it, and how she has found it difficult to face your ex-partner or your partner, who she runs across in the supermarket.  She says:
I used to be extremely social and very much a member of the community, but since this occurred, I've become a homebody, and I know it is because I don't want to be seen as a person who helped to break up a family or the mother who couldn't protect her children.
29	She refers to the fact nine months later she is still hearing rumours in the town.
30	So it is clear from both victim impact statements that your offending has had a major, profound and continuing impact on the complainant, on her mother, on the family dynamic, and that is a relevant factor in sentencing you.
Offence Seriousness and Moral Culpability
31	Sexual offending against children is inherently serious.  There is a presumption that premature sexual activity causes long-term harm.  In assessing the seriousness of the offences of this type, the impact on the complainant is a very important consideration.  Here, the impact on the complainant and on her mother and on the wider family unit alone makes this serious.  It is also necessary to consider the age of the complainant and the age differential between you and the complainant.  Her consent is irrelevant, but in assessing this matter, it is important to note that she was only a handful of months short of the age of 16.
32	You, however, were some 11 years older than her and had been involved in three previous serious relationships, all involving the birth of children.  Thus, you are very much more sexually experienced than her.
33	Next, the prosecution submitted that this offending involved a breach of trust.  The two of you met in the context of a workplace, like many other relationships formed in society these days.  I do not accept that your role as her superior was central to the offending.  However, once you were offered psychological support by her mother after the dispute with your partner, leading to her mother offering you a bed for the night, your offending on that occasion and on the second occasion involved a gross breach of trust of the complainant and of her mother and of the family.  The breach of trust and your moral culpability is heightened by the fact that the complainant's mother had placed you on notice that you were not to continue to be involved with the complainant, and she did this by serving the proposed intervention order on you.  Notwithstanding this, you then a few days later proceeded to continue to contact the complainant and commit the second offence.
34	As submitted by the prosecution, you confided your relationship issues to the complainant, and this led to her becoming closer to you.  While I do not accept that you exploited your relationship problem issues, it does provide some explanation for you becoming closer to the complainant, leading to the offending.  Further, relevant to your overall culpability, you were intending to continue the relationship notwithstanding the proposed intervention order.
Personal Circumstances
35	I turn now to your personal circumstances, which were set out in the plea submission and the report of Mr Cummins, psychiatrist.  Your parents separated when you were aged two. Your mother re-partnered when you were aged six, and you seem to have had little to do with your stepfather, and you have had a strained relationship with your mother until relatively recently.  You have one brother, with whom you have no contact.  Your stepfather had issues with alcohol.  You told Mr Cummins that you were the subject of family violence.  You claimed that your biological father also sexually abused you and he was imprisoned for that.  The full details did not emerge.  You spent considerable periods in foster care between the ages of six and 18, and you attended three or four primary schools and three different high schools in different parts of your home state.  You passed Year 10 and left school at age 16.  You were living at the time with a foster carer, and you remained with that carer until you were aged 18 or 19.  You did some work in a kitchen after you left school, and then you obtained work through job agencies.
36	You were in a relationship with a woman between 2015 and 2018, and she has a daughter who remains residing in your home state.  You are not having any contact with that daughter.  Between 2019 and 2020, you were involved in another relationship, and you have a four-year-old daughter from that relationship, but there has been no ongoing contact since you moved to Victoria.  You were involved in an online relationship with a woman living in a Victorian hamlet, and in around 2020 you relocated to that hamlet, and the two of you have a son born in 2022.  The breakdown of that relationship led to you seeking the support of both the complainant and her mother that led ultimately to this offending.
37	It is not clear whether your relationship with the mother of your son living in the hamlet will continue upon your release, but there has been some contact since you have been on remand. Your now infant son is a factor in your favour and would encourage your rehabilitation.
Other Matters in Mitigation
38	Your counsel submitted that that this was an early plea of guilty.  I accept that.  The plea has significant utilitarian benefit.  You have facilitated the course of justice and saved the need for a trial and for the complainant to be
cross-examined.
39	Further, I accept that your plea is evidence of remorse.  You also stated that you are remorseful in your interview with Mr Cummins, and you admitted that your conduct was wrong, and thus you have insight into your conduct, and you have indicated a willingness to undertake appropriate courses.
40	Your prospects of rehabilitation are an important sentencing consideration.  You come before the court with no criminal record alleged against you.  Mr Cummins assesses your risk of further offending as low-moderate.  He also notes that you presented as being 'mildly psychosocially immature for your age'.
41	When you were interviewed by the police on 26 October, you indicated that you were taking action to address your mental health problems by obtaining a mental health plan, and you had obtained further medication from your local doctor that you intended to commence taking.  You had previously been medicated but had ceased taking the medication for about a month prior to this offending. You are currently being medicated for depression whilst on remand.
42	Given your lack of prior convictions and the circumstances of this offending being described by Mr Cummins as 'situationally motivated and opportunistic', then with appropriate offender treatment programs, I regard your prospects of rehabilitation as good.
43	Also relevant to your prospects are, as submitted by your counsel, that you have agreed to an intervention order in favour of the complainant until she turns 18.
44	Your counsel submitted that based on the report of Mr Cummins, there should be a reduction of moral culpability.  He opines that at the time of the offending you were suffering from an episode of major depressive disorder.  He said it was triggered by a combination of factors, including your long work hours, pressure of work and the turbulence in your relationship and then the separation from your then partner.
45	I have difficulty accepting that the mere association between the retrospectively diagnosed disorder by Mr Cummins and your offending should lead to any reduction in your moral culpability.  While I accept that you have been diagnosed with depression in the past, and offered medication, you have chosen not to take the medication at the time.  No report was available from your general practitioner, who would have been in a much better position to provide a contemporaneous analysis of your mental state at the time.
46	Your depression, however, is a factor that I do take into account in a general way, and it does lead to some reduction in general deterrence under the principles of R v Verdins [2007] VSCA 62.
47	I also note that your psychological state will make imprisonment more onerous, and I have had regard to that in sentencing you.
48	Your counsel also sought to rely on the principles of the authority of Bugmy v The Queen (2013) 249 CLR 571 to reduce your moral culpability.
49	Whilst I accept that you have had a dysfunctional childhood, and further that your education was disrupted, the suggestions of sexual and other abuse lacked specificity.  While your background of a disrupted childhood is relevant to sentencing, on the material before me, I just do not accept that it calls for a reduction in your moral culpability for this offending.
50	In the case of DPP v Terrick (2009) 24 VR 457– which is referred to in another decision that was referred to by the prosecution, the case of Newton v R [2023] VSCA 22 in the Court of Appeal – at paragraph 38, the court referred to Bugmy in the following terms:
An offender's background may explain the offending conduct, though whether it provides an excuse is a separate question.  Background circumstances may affect the assessment of moral culpability and in addition (or in the alternative) may require some moderation of general or specific deterrence or the need for denunciation, or may bear upon prospects of rehabilitation.
51	Here, I regard your dysfunctional childhood with being in foster care over a significant period of it, possibly most, as calling for some modest reduction in general deterrence, but that is all.  Otherwise, I do not accept that the principles of Bugmy are invoked in this case.
Sentencing Submissions
52	Your counsel submitted that a combination sentence would be an appropriate disposition in this matter.  As discussed in the course of the plea hearing, I regard this offending as too serious to call for a combination sentence.
53	Your counsel also submitted that a longer-than-usual period of parole eligibility ought be imposed.  I will not fully accede to that submission.  However, I have fixed a non-parole period that will allow an appropriate period of punishment and that will meet the ends of sentencing and that will also have sufficient time for a relevant treatment program in custody.
54	I have also taken into account your current period on remand, which is more onerous than had you been sentenced, and thus less programs are available whilst you are on remand.
Comparable cases
55	In sentencing for offences of this type, I regard comparable cases as being of considerable assistance, notwithstanding that offending of this type covers a wide range of circumstances.
56	The prosecution referred the court to the cases of Roberts v R [2023] VSCA 92 and DPP v Spottiswood [2021] VSCA 146.  In the latter case, the sentence was described by the court as 'lenient'.
57	Each sentence is not a precedent, but I found those two cases of some assistance in formulating a sentence here.
Purposes of Sentencing
58	The basic purposes for which a court may impose a sentence are punishment; deterrence, both specific and general; rehabilitation; denunciation; and protection of the community.  In sentencing, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
59	In sentencing you for these offences, I must have regard to considerations of totality and proportionality.  The overall sentence needs to be a just and appropriate measure of your criminality.
60	In sentencing you for these offences, I must also have regard to the maximum penalties, and to the standard sentence of four years and six years respectively, and to current sentencing practices.
61	The standard sentence is for a hypothetical offence in the middle range of seriousness, having regard only to objective factors and not factors personal to the accused.  It has been described by the Court of Appeal in the case of McPherson v R [2021] VSCA 51 as an intangible concept, as it is very difficult to identify a notional mid-range given the wide range of sexual misconduct captured by each of the two offences to which you have pleaded guilty.  Regard must, however, be had to the standard sentence as a factor in the application of the instinctive synthesis along with the maximum penalty and the circumstances of the offence.
62	In sentencing for offences against children, considerations of general deterrence, denunciation and protection of the community loom large.
63	Your conduct must be utterly denounced.  Further, the sentence of the court must vindicate community values that breaches of trust involving children will be heavily punished.
64	In sentencing you, the two sentences that I am about to impose are below the standard sentence for the relevant offence.  I have arrived at those sentences after considering the objective seriousness of the offences, your personal circumstances including your underlying depression, your previous character, your prospects of rehabilitation and your guilty pleas.
65	As a consequence of the sentences that I am about to impose, you will be placed on the Sex Offender Register.  The relevant reporting period will be for life.  The relevant paperwork will be provided to you.
66	I have taken into account all the matters put on your behalf by your counsel in a comprehensive submission and also the responding submissions by the learned prosecutor.
Sentence
67	The sentence of the court is as follows:
•	On Charge 1 of sexual assault of a child under 16, you are sentenced to 12 months' imprisonment;
•	On Charge 2 of sexual penetration of a child under the age of 16, you are sentenced to two years' imprisonment.  This is the base sentence.
68	I order that four months of the sentence imposed on Charge 1 be served cumulatively on the sentence imposed on Charge 2, making a total effective sentence of two years and four months' imprisonment.  I order that you serve a minimum term of 17 months' imprisonment before being eligible for parole.  I declare that you will have served 237 days' pre-sentence detention and order that it be deducted administratively.
69	As I have indicated, you will be placed on the Sex Offender Register for life by virtue of the two convictions for these offences, and the paperwork will be provided to you.
70	I declare that had you not pleaded guilty, I would have imposed a total effective sentence of three years and three months with a non-parole period of two years and six months.
71	I want to thank counsel for their assistance in this plea.
72	We will send the paperwork to the prison for Mr Brack.  I want to thank also the complainant and her mother for their participation in this matter and wish for them that they can put this matter behind them and she can move on with her life, the complainant and her parents. 
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