Director of Public Prosecutions v Brecht (a pseudonym)
[2017] VCC 916
•5 July 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DION BRECHT (A PSEUDONYM) |
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| JUDGE: | HER HONOUR JUDGE CAMPTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 June 2017 |
| DATE OF SENTENCE: | 5 July 2017 |
| CASE MAY BE CITED AS: | DPP v Brecht (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 916 |
REASONS FOR SENTENCE
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Subject:Sexual penetration of a child under 16 (representative charge)
Catchwords:
Legislation Cited:
Cases Cited:Azzopardi v The Queen; Baltatzis v The Queen; Gabriel v The Queen [2011] VSCA 372; 35 VR 43; R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 269
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Moran | |
| For the Accused | Ms K. Blair |
HER HONOUR:
Charges
1Dion Brecht,[1] you have pleaded guilty to one representative charge of sexual penetration of a child under 16. The maximum penalty for sexual penetration of a child under 16 is 25 years' imprisonment.
[1] A pseudonym.
Circumstances of offending
2At the time of offending you were living in the family home with your step-siblings, Kara[2] and Kasey.[3] You were 17, Kara was 11 and Kasey was seven.
[2] A pseudonym.
[3] A pseudonym.
3During the year, the three of you spent time in a cubbyhouse that had been built on the property. The representative charge of sexual penetration of a child under the age of 16, relates to four occasions when you inserted your penis into Kara’s vagina.
4The first occasion took place when the three of you were in the cubbyhouse. You sent Kasey to the house to collect a broom and took advantage of his absence to pull Kara’s pants down, open her legs and insert your penis into her vagina. She tried to push you away while this was happening and you got off her when you heard Kasey returning to the cubbyhouse.
5When Kasey returned with the broom, you sent him back to the house to get some water. When he left, you pulled Kara to the floor of the cubbyhouse and pulled off her pants. You then inserted your penis into her vagina. When Kasey returned to the cubbyhouse, you got up and Kara pulled her pants up.
6On another occasion, you were all in the cubbyhouse and you sent Kasey to the house and then pushed Kara to the floor. You removed her clothing and inserted your penis into her vagina. As Kasey returned to the cubbyhouse, you got of Kara and pulled her pants up.
7On a further occasion, you were with Kara in the cubbyhouse, listening to music. You pulled her to the floor of the cubbyhouse, pulled her shorts down and inserted your penis into her vagina. You continued to have sex with her and ejaculated on the floor of the cubbyhouse. You told Kara not to tell anyone what happened, and if she did, that Mum and Dad would get hurt and there would be a run-through at the house.
8Kara made a disclosure regarding some of your sexual conduct to two of her friends. Shortly after, she informed her mother of some of the incidents involving you. This matter proceeded as a contested committal on the 13th of March and as a result of your plea of guilty, it was adjourned to this court.
Personal circumstances
9You were born in Geelong. Your parents separated when you were just a baby. Both your parents re-partnered and you have five half-siblings on your mother's side and two on your father's. Apparently you lived between your mother and your father's home when you were young.
10You have attended multiple primary schools and you have been diagnosed with Attention Deficit Disorder. An assessment carried out on your intellectual functioning, when you were at primary school, revealed that you had an IQ of 71.
11You were possibly subjected to sexual abuse by your paternal grandfather when you were young, however you have no memory of the alleged abuse.
12You left school in Year 8, when you were aged 15, and after leaving school, you worked for short periods as a farmhand, forklift driver and truck jockey.
13The fact that your work periods were short, is probably, in part at least, due to your issues with drugs. You started smoking cannabis when you were young and then moved on to methamphetamine. At worst you were using 1.7 grams, half a ball daily.
14While you have no prior convictions, you have a number of subsequent convictions, largely for burglaries, thefts and possession of cannabis.
15You are currently on remand for three other offences. You have breached
a community corrections order and you have been in custody since 25 May 2017.16Prior to being arrested, you were residing with your girlfriend. Both your girlfriend and your mother have continued to support you.
Psychological report
17In his report of 28 June 2017, Jeffrey Cummins described you as being
a reluctant interviewee. He formed the opinion that you were reluctant, partly because you were feeling embarrassed and ashamed about your offending, but also because you did not want others to know the nature of your offending.18In his opinion, you were not suffering from any specific sexual deviation at the time of your offending. Your offending was most probably situationally motivated, opportunistic and reflective of sexual experimentation, as opposed to any specific sexual deviance. Accordingly he assessed your current level of risk of re-offending as being low to moderate. He diagnosed you as most probably having developed a reactive adjustment disorder with anxiety and depressed mood, in response to being charged with the offence.
19In his opinion, it appeared, based on the assumption that you would be serving your sentence in protection, it would be more onerous for you because of your level of shame and embarrassment and he considered there was a serious risk that imprisonment would have a significant adverse effect on your mental health.
Defence submissions
20In the plea, on your behalf, in essence your counsel submitted that although your offending was serious, it was not so serious as to displace the principles generally applicable in the sentencing of youthful offenders, as summarised in a case of Azzopardi.[4] Consequently, it was submitted that the court could impose a sentence of imprisonment, together with a community corrections order. In support of this submission and in mitigation of offending, your counsel relied on a number of mitigating matters.
[4]Azzopardi v The Queen; Baltatzis v The Queen; Gabriel v The Queen [2011] VSCA 372; 35 VR 43
Mitigating matters
21In sentencing you, I have taken into account the following mitigating matters referred to by your counsel during the course of her plea:
·Your plea of guilty, for which I have given you a discount, accepting that it is evidence of your remorse and an acceptance of responsibility for your offending. Although the plea was late and Kara had to view her VARE, it saved her from giving evidence in the trial and it saved the expense of a trial;
·Your dysfunctional background;
·Your young age at the time of offending, as you were only 17;
·Your diagnosis with Attention Deficit Disorder and borderline intellectual capacity;
·That while there has been subsequent offending, there has been no similar offending;
·The delay between your offending and the sentence today is relevant, insofar as if the offending had been reported to the police earlier, you would have been before the Children's Court.
22In addition, you are a young man and I accept that you have prospects of rehabilitation, as you indicated a desire to make positive changes during your psychological assessment with Mr Cummins; you have the support of your girlfriend and mother; and you also have some work history.
23While your offending was serious, I have accepted your counsel's submission that the principles that apply to youthful offenders have application in this case, particularly given your intellectual limitations. However, I have rejected the submission by your counsel, that given Mr Cummins' opinion regarding the effect of incarceration on your mental health, that the 6th principle in Verdins,[5] applies.
[5]R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 269
24I am satisfied that your mental health issues are as a result of your criminal offending and your shame and embarrassment and fear regarding other prisoners finding out about your legal situation. This is not a case where the principles in Verdins should apply.
Prosecutors submissions
25In sentencing you, I have also taken into account the matters referred to by the prosecutor. The prosecutor submitted that an immediate term of imprisonment was appropriate, given the serious nature of this case, and I have accepted that a custodial sentence is appropriate.
26Given that you are a youthful offender, both general deterrence and specific deterrence have been moderated, but although they have a lesser role to play, they are still relevant sentencing considerations.
27In addition, I have taken into account the gravity of your offending and the following aggravating features:
·The victim was your younger half-sister, who was vulnerable. So there has been a grave breach of trust;
·The charge on the indictment was representative of four occasions where you sexually penetrated her in the grounds of her own home where she should have felt safe;
·There was some force involved in the acts, in that on one occasion, you pushed her to the floor and on another, you pulled her to the floor;
·You made a threat to harm her parents and to run-through the house if she divulged what had happened.
28It was clear from Kara's statement, which was read to the court by the prosecutor, that your offending has had a profound effect on her. It destroyed her trust in people; it made her scared to leave her home; it affected her schooling and caused her to lose confidence in herself; it caused her to
self-harm by cutting her upper legs and arms; it made her feel that she could not trust anyone. When you pleaded guilty, she felt like she could breathe, she felt like two elephants were lifted from her shoulders.29As is common with such offending, it is not only the victim that is affected. It is apparent from the victim impact statements, that both your father and Kara's mother are struggling emotionally to cope with what happened. Your father said in his statement, that he loved all his children equally and he feels angry and betrayed by you. He struggles every day knowing what you did to Kara and he feels guilty that he could not do anything about it. Every day he worries about her welfare. He has also suffered financial loss, in having to have extra security installed to the house, after you broke in.
30Your step-mother also feels betrayed by you. In her victim impact statement, she refers to how she supported you during the lowest period of your life when you were in a downward spiral and resorting to crime and drugs. She was devastated, hurt and angry that someone she trusted could do this thing to her daughter. Your offending has affected her relationship with your father, it has caused her stress, anxiety and heart palpitations. Mentally she beats herself up on a daily basis, wondering how she was not able to protect her daughter.
31By committing the offence against Kara, you have caused great harm, not only to her, but also to your family. As your younger half-sister, she was entitled to your support and protection. You abused her trust and your offending has caused her much harm. In all the circumstances of this case, I consider that nothing other than an actual custodial term is appropriate. Would you please stand up.
Sentence
32On the charge of sexual penetration of a child under the age of 16, you are sentenced to a term of imprisonment of four years.
33I fix a non-parole period of two years and six months.
Sex Offenders Registration Act
34As you have been convicted of one Class 1 offence, the mandatory reporting period under the Sex Offenders Registration Act, is 15 years. However, as you were 17 at the time of the offence, registration is discretionary and I only make an order if I am satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons in the community.
35Mr Cummins' assessment was that it was most probable your offending was reflective of sexual experimentation, as opposed to being reflective of any specific sexual deviance. He assessed you as being on the low/moderate rate. You have no prior or subsequent offences of a sexual nature.
36While I have some reservations about you, taking into account his opinion and all the circumstances of the case, I am not satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons in the community. You will not be placed on the Registration Act.
6AAA
37If you had not pleaded guilty, you would have been sentenced to five years and six months, to serve three years and six months.
38Yes, is there anything? Five day is reckoned as already served.
39MS MORAN: And the 464ZF order, Your Honour.
40HER HONOUR: Yes, that is by consent?
41MS MORAN: Yes.
42HER HONOUR: All right, I will make ‑ ‑ ‑
43MS MORAN: Sorry, I'll just check.
44MS BLAIR: Your Honour, I haven't actually checked that with
Mr Brecht. Can I just briefly approach him? Because I believe it will be by consent, but I just want to ask. Your Honour, he believes he has been profiled, but he doesn't oppose it being made - the order being made.45HER HONOUR: He probably would have because of his subsequent offending. He is probably right.
46MS MORAN: Sorry, Your Honour, I thought we had checked, Your Honour, but we haven't.
47HER HONOUR: All right, what we will do is, if he has not, I will deal with it in chambers. And I certainly have to say to him, as the judge would have said on the previous occasion, that the officers taking the sample can use necessary force, if you were to resist it, but it is not painful, it is just a swab from your mouth and I am sure there will not be any problem if you have to have it done again.
48Yes, nothing else arising?
49MS MORAN: Nothing else, Your Honour.
50HER HONOUR: All right, thank you.
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