IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
 Suitable for Publication	

THE DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
MAX BRADY (A PSEUDONYM) 		

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JUDGE:	HIS HONOUR JUDGE CARMODY	
WHERE HELD:	Melbourne	
DATE OF HEARING:	9 November 2022 	
DATE OF SENTENCE:	14 November 2022	
CASE MAY BE CITED AS:	DPP v Brady (a pseudonym) 	
MEDIUM NEUTRAL CITATION:	[2022] VCC 2072		

REASONS FOR SENTENCE
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Subject:			CRIMINAL LAW – Sentence
Catchwords: 			Sexual penetration of a child under 16 years
Legislation Cited:			Sentencing Act 1991; s5B(2), s5B(2)(b), s5B(3)(b)
Cases Cited:			The Queen v Brown [2018] VSC 742; Worboyes v R 			[2021] VSCA 169; DPP v Spottiswood [2021] VSCA 146; 		DPP v Conos [2021] VSCA 367; Sims v The Queen 			[2022] VSCA 114; Jenkins v The Queen [2021] VSCA 65
Sentence:			Convicted and sentenced to 30 months’ imprisonment with 		a non-parole period of 18 months’ imprisonment. 

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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Mr A. Grant	Office of Public Prosecutions	
			
For the Accused	Mr M. Murphy	Stephen Peterson Lawyers	

HIS HONOUR:

1	Max Brady, on 9 November 2022 at the County Court in Melbourne, you pleaded guilty to one charge on indictment no.N10006543.3; Charge 1, sexual penetration of a child under 16 years.  This is a rolled up charge involving two separate incidences of offending.  The maximum penalty for this offending is 15 years' imprisonment.
2	You have consented to a related summary charge of committing an indictable offence whilst on bail to be heard at the same time as your plea hearing.  You pleaded guilty to that related summary charge which has a maximum penalty of three months' imprisonment. 
3	You have admitted your prior criminal history.  Your prior offending includes violence offending, driving offences, drug offences, weapons offences and dishonesty charges. Between 2013 and July 2019 you have had six separate court appearances, all of which were at the Latrobe Valley Magistrates' Court.  You have no prior convictions for sexual offending.
4	Subsequent to your arrest for the charges before this court on 3 January 2022, you were sentenced on other unrelated offending to 115 days imprisonment at the Latrobe Valley Magistrates' Court on 29 April 2022.
5	You have served a total of 200 days pre-sentence detention in respect to the charges before this court. 
Circumstances of your offending
6	The prosecutor tendered an Amended Summary of Prosecution Opening for the plea which was dated 8 November 2022, it was Exhibit “A”.  The offending has taken place between 1 October 2021 and 15 December 2021.  At the time of the offending you were 29 years old.  Your victim DL was 15 years old.  
7	DL was a client of Department of Families, Fairness and House (“DFFH”) and had been placed in the residential care unit in Swanwater West for her support and protection.  You were introduced to DL when your friend Hamish Calder attended at your home in Newborough.  In the course of your conversation to DL on that day, she told you that she was 15 years old.  
8	Your offending encompasses two separate incidents as part of a single rolled up charge.  
Incident one
9	On the first day DL was at your home at approximately 8.30 pm, you and DL went into the backyard.  You took her to a vehicle of yours which was a Commodore. You were going to show it to her.  While DL was standing at the front of the vehicle, you pulled down DL's leggings and underwear and inserted your penis in her vagina.  You then continued to move your penis in and out of her vagina and continued for a few minutes until you ejaculated into her vagina.
10	After you had ejaculated you then let go of DL, pulled up your pants.  You and DL then went back into the house and sat in the lounge room of the house where you continued to chat.
11	Approximately four days after this offending by you, the police attended at your home looking for DL.  The police advised that DL was in a residential care unit and was 15 years of age.  DL attended your home sporadically in the first weeks of October 2021.  By the end of October 2021, DL was living at your home on a 
full-time basis.

Incident two
12	On the morning of 15 December 2021, DL was lying on the couch while you were sitting in the lounge room.  You have walked over to her, pulled down her shorts, and climbed on top of her and inserted your penis into her vagina and penetrated her for about three minutes before she heard a knock at the front door.  You then told her to pretend that she was asleep and went to answer the door.
13	The police who attended were Constable Thomas and Constable Marshall.  They were trying to locate DL, who had not returned to her residential care facility where she had been placed for about two months.  They were in possession of a warrant, which authorised them to take her into their custody and then return her to residential placement, when you became aware the police attended at your home, you told DL that she was to pretend to be asleep and instructed her that she was not to disclose that the two of you had been engaging in sexual activity and tell the police that she did not wear pants when she slept.
14	You answered the door when the police knocked on it and allowed the police to enter the home.  However, you acted aggressively toward the police.  Both Constables Thomas and Marshall had each activated their body worn camera and recorded the manner in which you dealt with them.  
15	Once they were in the lounge room the police members found DL laying on the mattress on the floor.  She was wearing only a t-shirt and not wearing any clothing from the waist down. DL was taken into custody and removed from your address.  She left some of her belongings and clothes at your home.  DL did not tell the police about any sexual activity with you and she was then released to the care of those supervising the residential unit in Swanwater West.
16	After being returned to the residential unit, DL then again left and her carers did not know where she was.  Another warrant was issued and on 30 December 2021 police found her at a house Spring Court in Swanwater West which was the home of a Isla Game.  The police again apprehended DL and while she was in custody on this occasion, DL told Constable Thomas that when she was not wearing any pants on the day they collected her from your home on 15 December 2021, you had had sex with her.
17	DL made a VARE on 30 December 2021.  DL then conducted a pre-text call to you in which you admitted having sex with her.  You later sent DL a Snapchat message which reads as follows:
“Honestly, the second I met you, I liked you and I couldn't stand the way you were being treated.  No-one deserves that and honestly, when you told me how old you were, I almost ran, but, I'm glad I didn't. Like, you're an awesome person, and you know what you want and you don't let anyone stop you.  It's mint and I'm really sorry if I've done or said something wrong, but I can't tell - I can't help if I'd - I don't know what it is like, I'm really confused after that call. Can you please tell me what is going on?”
18	On 3 January 2022, you were arrested.  Police searched your home and found clothing and jewellery belonging to DL.  You were interviewed at Swanwater West police station and you said to the police the following matters and I will go through them:
•	You initially claimed that you had never been at home alone with DL.
•	You initially claimed that you did not engage in any sexual activity with DL.
•	When investigators described DL's account of the first time you engaged in sexual activity with her, you responded ”bullshit”.
•	You initially claimed that you and DL were just friends and you were trying to help her and doing her a favour by allowing her to stay at your home.
•	You claimed that DL slept in your younger brother's room on every night that she stayed there, except for the occasion when the police came and took her into custody on 15 December 2021.  On that occasion she was sleeping on the couch in the lounge room. 
•	You claimed as you answered the front door, DL yelled out to you that she was not wearing any pants and you responded, “What the fuck”.  
•	You then also denied any sexual activity, penetrating DL on the morning before the police took her into custody on 15 December 2021.
•	You claimed that four days before you were arrested, DL had called you and asked if she could come to your house to collect her belongings.  You said that you told her that she could.  
•	You admitted that you had sent DL a Snapchat message which I have just read out.  You admitted that you knew that she was 15 years of age.
•	After the police had played you the recording of the phone call with DL on 
30 December 2021, you then changed your account.  You claimed that you had had sex with her once after you had been together for about three days. 
•	You claimed that she had been hassling you to have sex with her every day, and you had refused on earlier occasions, and that she sat on you and begged you to have sex with her, so you took her to the bedroom and asked if she was sure, and then had sex.  You added that it was a hundred per cent consensual and that she sat on you.  After 10 seconds she told you, you could not do it anymore and you walked out of the room.
•	You claim that you did not know she was 15 years of age at that time.
The basis of the current plea 
19	The current plea was accepted on the basis that you engaged in an act of sexual penetration with DL on two occasions, as outlined in the summary.  It is not alleged that you ever used force or threat of force, during the period of the current offence, further it is not alleged that you provided DL with any illicit drugs.
20	The prosecutor advised the court that DL has been given the opportunity to make a victim impact statement in this case, and understood her rights to do so.  DL has declined to make a victim impact statement.
Personal circumstances
21	In April 1992,  your mother was suffering a heroin addiction. She also gave birth to you. You are 30 years of age.  At the time of your offending, you were 
29.
22	At five months of age your parents separated due to the violence inflicted by your father on your mother.  You remained in the care of your mother as she moved in and out of numerous relationships which were dominated by drug abuse.  You also had periods of time living with your father.  By the time you were 12 years old you had been hospitalised on three to five occasions due to injuries inflicted upon you by you father.  When you were in Grade 5, you were living with your grandparents.  Your grandfather died whilst you were in custody and you were unable to attend his funeral.  
23	You have experienced an upbringing where drug addiction and violence have been a daily exposure to you.  As a result of your unsettled family life you attended 
14 different primary schools.  You went to Hail Creek Regional College to Year 10.  You were expelled from that school.  You are functionally illiterate.
24	Despite all the disadvantages you have endured, you have been a contributor to your community.  You worked as a lifeguard until you were 16 years of age, and a year after that as a pool lifeguard.  You have had various labouring jobs including: a cleaner, a roof tiler or a roofer, and mostly as an abattoir worker.
25	You have had two significant relationships.  The first relationship was for a period of approximately five years.  You have an eight year old daughter from that relationship.  You also had a second relationship from which you have a five year old son.  The latter relationship ended when your partner was unfaithful with one of your cousins.  You took this breakdown of the relationship hard, and your life spiralled into drug and alcohol abuse. Since that time in 2020, you have not worked.  
26	You have had two significant physical injuries.  The first in 2016, when your father was driving a car.  You were seriously injured.  The full extent of those injuries was not before this court.  The second injury incident was when you were stabbed by your cousin. The perpetrator was a cousin different from the one who took away your second partner, in early of 2021.  You received a lacerated liver and punctured lungs.  You were airlifted to hospital and treated.  Your cousin was sentenced to six years' imprisonment for that assault on you.  You have received threats in prison from associates of that person.
27	You have been assessed by Dr Aaron Cunningham for the purpose of this plea hearing.  His report dated 7 November 2022, was Exhibit 2.  He has diagnosed you as suffering from Post-Traumatic Stress Disorder (“PTSD”).  Dr Cunningham says the basis for this diagnosis is the violence from your father and the stabbing incident. Dr Cunningham stated your untreated PTSD contributed to your drug abuse and that your drug abuse and general life instability were the main contributors to your offence behaviour.
28	This time on remand is your first time in custody.  You have been in custody since your arrest for these matters on 3 January 2022.  You have no prior convictions for sexual offending.  I have previously referred to your criminal history and I am not going to repeat it here.  You have been given community-based dispositions in the past and you have breached them.
Sentencing considerations
29	The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions and the protection of the community.  In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances. I am required to balance the interest of the community in denouncing your criminal conduct with the interest of the community, and seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.
30	I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly but not exhaustively, to the kinds of sentencing imposed in comparable cases and the statistics for those sentences at the time.
31	I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances when many of the cases would be distinguishable from your case, as indeed they are from one another.  Current sentencing practices is just one sentencing consideration.
32	The learned prosecutor referred to me to the cases of the DPP v Spottiswood 
[2021] VSCA 146, the DPP v Conos [2021] VSCA 367, Sims v The Queen [2022] VSCA 114, and lastly, Jenkins v The Queen [2021] VSCA 65.  I have noted those cases for guidance in this sentencing process.  Each of those cases are different from your case.  Of course current sentencing practices is, as I said before, only one of the considerations I am required to take into account.
33	The maximum sentence for this charge on the indictment is 15 years' imprisonment.  This charge is also subject to the standard sentencing provisions.  The standard sentence for this offence is six years' imprisonment.  The standard sentence only takes account of the objective factors affecting the relative seriousness of the offence of sexual penetration of a child under 16.  The maximum sentence and the standard sentence are to be taken into account as guideposts in the sentencing process.
34	In s5B(3)(b) of the Sentencing Act, the Parliament enacted the standard sentencing provisions, in doing so, did not affect the approach to sentencing, known as the instinctive sentencing synthesis.  Justice Champion in the case of R v Brown, set out that the standard sentence is not to take the predominant role in sentencing and is just one of the factors to take into account.
35	It follows that the standard sentence does not assume a dominant role in the determination of a sentence for this charge.  The standard sentence prescribed by Parliament for the offence is simply one of the relevant sentencing factors to which a court must have regard along with other sentencing factors identified which are required to be taken into account in s5(2) of the Sentencing Act.  Further, so far as 
consideration of the current sentencing practices are concerned, ss(2)(b) requires a court, when considering current sentencing practices for a standard sentence offence to only consider sentences previously imposed where the relevant offence was subject to the standard sentencing scheme.
36	You have pleaded guilty to this charge.  Your plea of guilty was indicated at an early stage and your plea does have the utilitarian value of allowing the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of the court and police resources to deal with other matters.  Your plea vindicates the public confidence set up and the legal process set to protect the community.  Your plea has relieved your victim DL from given evidence at a trial.
37	Your plea also is a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion and your plea also recognises you are willing to facilitate the course of justice in the community, and I accept that your plea of guilty to this charge indicates and demonstrates remorse on your part.
38	Your plea is also entered at a time when the courts are faced with significant trial backlogs. You are an appropriate person to apply what is known as the 
Worboyes discount when finalising your sentence.
39	Further, your plea is significant due to the fact that there is little corroborative evidence against you in the proof of the offending alleged by DL.  I would assess your plea as a further indicator of the empathy you have for DL, as expressed in your Snapchat communication after she had conducted a pretext call to you.
40	The gravity of your offending is indicated by the following factors:
(i)	The age difference between you and DL.  You were 29 years old, she was 15.
(ii)	DL was a vulnerable person who you knew was placed in residential care by DFFH.
(iii)	You had penile/vaginal sex on two occasions without using a condom.
(iv)	The two rolled up events took place over two months apart.
(v)	There is no suggestion of any force used by you.
(vi)	There is no use of any drugs or alcohol to disinhibit DL in the course of these offences; and
(vii)	A child under 16 is by law incapable of consenting to sexual penetration in the circumstances of your offending.
41	I assess your offending at the lower range for this offence.
42	I accept that your time in custody has been served under the constraints of 
COVID-19 restrictions for the whole of your time in custody.  You have had visits from your sister, but otherwise family visits have been restricted.  
43	I accept that limbs 5 and 6 of Verdins principles apply to your case.  The diagnosis of PTSD and the lack of treatment whilst in custody, will mean your sentence will weigh more heavily upon you than a person of normal mental health.  Also, I accept there is a serious risk your sentence will have an adverse effect on your mental health.
44	I find that your upbringing with its deprivations and violence from the earliest age enliven the principles of sentencing referred to Bugmy's case.  This in particular moderates your moral culpability in the commission of this offence.
45	You have been in custody since 3 January 2022.  Whilst on remand for this charge, you were sentenced to a 115 days' imprisonment, for other unrelated offending on 29 April 2022.  That means that in respect of the total time in custody, I think it is now 315 days, only 200 of them are to be considered as pre-sentence detention for this charge. I have regard for the fact that this is your first time in custody and take into account the total time you have spent in custody when finalising your sentence for this offending.
46	I assess your prospects of rehabilitation as guarded.  You have had a serious and prolonged drug addiction prior to your incarceration.  You have done courses in custody to address your drug addiction.  The custody environment is relatively protective in respect of illicit substance availability compared to when you would be in the community.  You will need to address your drug addiction upon release from custody to enhance your prospects of rehabilitation.
47	You enjoy the family support of your grandmother and sister and can return to live with your mother on release from custody.  You have a reasonable work history.  Whilst you have other prior convictions you can use this period in custody for the first time to turn your life around and live a law abiding life.
48	You have two children that you no doubt want to have a better start in life than you were given.  They are your responsibility.
49	The sentencing principles of general and specific deterrence, just punishment, protection of the community and your rehabilitation dictate that the only just sentence is a head sentence with a non-parole period which is fixed.  I have had regard to the standard sentencing provisions when finalising your sentence.
Sentence
50	On Charge 1, sexual penetration of a child under 16 years, you are convicted and sentenced to 30 months' imprisonment.  I fix a non-parole period of 18 months' imprisonment.  But for your plea of guilty I would have sentenced you to five years and six months with a four year non-parole period.
51	I declare that you have served 200 days pre-sentence detention not counting this day. 
52	I place you on a sex offender register for a period of 15 years on the basis of Charge 1.  Is there anything else?
53	MR GRANT:  Just the other charge of - - -
54	HIS HONOUR:  Yes.  Thanks.
55	MR GRANT:  - - - committing an indictable offence, Your Honour.
56	HIS HONOUR:  Thank you.  On the summary charge of committing an indictable offence whilst on bail you are convicted and sentenced to one month's imprisonment.  That sentence to be served concurrently with the 30 month 
head sentence.
57	MR GRANT:  If Your Honour pleases.
58	HIS HONOUR:  So that is a total effective sentence of 30 months with a non‑parole period of 18 months.
59	MR GRANT:  Thank you, Your Honour.
60	HIS HONOUR:  Thank you.  Mr Brady, I hope your life improves when you get out of there and I hope you stay safe whilst you are in there.  Thanks.  I'll just leave the link open if you want to speak to your client.  Thanks.
61	MR MURPHY:  Thank you, Your Honour.
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