DPP v Serebryanski [2026] VCC 316

1. Between 1986 and 1988 you developed a sexual interest in Menahem Waks[1] (Waks), who was 10 to 12 years old at the time. You were then between 22 and 24 years of age. You attended the same synagogue. You would stare longingly at him in the Russian Centre. You made him feel uncomfortable.
2. On the first night of Shavuot in either 1987 or 1988, you attended the Yeshivah Centre. At approximately 1:00 am Mr Waks went upstairs to rest on one of the wooden benches in the women's section. You followed him. When he entered the upstairs section he saw another child, apparently asleep, lying on one of the benches. Master Waks was aware that you were following him and walked towards a bench a few metres away from the other boy and lay down. You approached, sat on the same bench and caressed his thighs until you reached his groin. You undid his belt and unzipped his trousers. You felt around Mr Waks' penis and groin over his underwear.
3. You led Mr Waks into the women's bathroom nearby. You pulled his trousers and underpants down to his ankles. You pulled your trousers and underwear down, exposing your genitals. You took Waks' hand and placed it on your penis. You then used your hand to touch and rub Waks' penis.
4. You lay on the bathroom floor. You placed your mouth over Waks' penis and sucked it. Waks blacked out and does not know how long it lasted. When he awoke you were no longer there.
5. Waks first complained to police about you on 17 September 1996. He made a second statement on 14 February 2012 clarifying his earlier statement.
6. He first tried to contact you in 2015 but was unsuccessful. He travelled to New York and yelled at you from outside the brownstone you then occupied. You did not engage. He doorknocked your neighbours and alerted them to your offending. He emailed you in January 2017, seeking an apology. You did not respond. He confronted you outside your home in Brooklyn, New York in February 2017. He was with an Israeli documentary maker who surreptitiously recorded your conversation. You made several damning admissions in that conversation.
7. Police were given a copy of this recording on 24 March 2017. It was played at your trial.
8. You were charged and a warrant was issued for your arrest on 20 September 2018.
9. You were detained in New York on or around 19 April 2023 and spent 91 days in custody in the United States before being extradited to Australia where you spent a further 3 days in custody. You were bailed on 20 July 2023.
10. At your plea hearing Mr Waks read his victim impact statement. He writes that your abuse has had a "prolonged and profound emotional, physical, financial and social" impact on him and his family.
11. He describes himself at age 11 as an ordinary child, the eldest boy in a large Ultra-Orthodox Chabad Jewish family. Your abuse of him occurred inside one of the most sacred sites in the Jewish community, the synagogue.
12. He struggled with his faith in the aftermath of your predations, he rebelled, hit out at his family and was expelled from two religious institutions. He was kicked out of home. He abused alcohol and cannabis. When turned 18, he travelled to Israel and joined the IDF. Your offending had made him feel emasculated and he tried to regain a sense of masculinity by joining the army.
13. He became a victims' advocate and credits that vocation with driving him on. I applaud him for his tenacity.
14. I was also provided with a victim impact statement from Zephania Waks, his father. He describes being shunned by his community when he supported his son. He says he lost friends and suffered great financial hardship by being forced to move overseas. His marriage collapsed and he became estranged from his wife. I pause to note that you are not responsible for the responses of others to the disclosures made by Menahem Waks and the collateral effect on his father cannot be sheeted home to you. I have summarised his father's statement to demonstrate how the ripples travelled when the stone was dropped.
15. You were born in New York city in 1964. Your parents adhered strictly to Orthodox Judaism. Your father was a rabbi and religious leader and your mother was a teacher. You are the eldest of 6 children. Two of your siblings live in Australia. The others live in the United States.
16. When you were 6 years old, your family migrated to Australia and settled in Melbourne so that your father could minister to the ultra-Orthodox community there.
17. You started school in the US. You completed your primary and secondary schooling at a local Orthodox Jewish school in Melbourne.
18. Your upbringing was very sheltered. You were not allowed to watch television or attend movies. You received no formal sex education or any information at the time to understand your own sexual experiences. Your only exposure to mainstream culture was mediated by the secular books you read at the local library.
19. You moved to the United States in 1994. You have lived there ever since. You have spent that last 30 years working as a computer programmer.
20. In 2023, you were extradited to Australia and bailed to stay at your mother's house in St Kilda East. Your mother passed away on 3 September 2023. You have lived alone in her house since her death.
21. You suffer from type 2 diabetes, hypertension, elevated blood cholesterol, and prostate-related problems.
22. Mr Hill with Ms Thiess argued that these offences should attract a wholly suspended sentence, or a partially suspended sentence noting the 94 days you have already served in custody.
23. I was provided with a letter from Judy Abraham who has known you since 2002. She describes how you donate your time, reading the Torah in Hebrew nearly every week at Sabbath services, donating to the synagogue. She says that you read the Torah to shut-ins and hospital patients.
24. Daniel Abraham has known you for 26 years. He describes you as a moral, charitable member of their community who is honest and forthright.
25. Dana Friedman, CEO of Dragon fly technologies provided a letter. She has known you for thirty years socially and has employed you for the last eleven years. She describes your extraordinary talent as a web developer and programmer. She says you are honest and humble and committed to your religion.
26. Dr Israel Herszberg, a family friend, knew you when you were a young child, before you left Australia. He was shocked and surprised to hear of the findings of guilt in your trial. He thinks you are of good character, and describes you as caring, compassionate, empathetic, honest, reliable and trustworthy. He says that you are always ready to give your time and resources to help a friend or stranger in need.
27. Marna Berkman and Robert Tolchin, lawyers at Berkman Law Office, Brooklyn, have known you for over 27 years. They describe how you help the synagogue, leading services, reading the Torah, studying with fellow members of the congregation. You visit sick people at the New York Methodist Hospital, providing spiritual support, You supported them when their young child became gravely ill with sepsis at age 3, suffering severe brain damage, obliging them to raise a developmentally disabled child. When Marna's mother passed away on the Sabbath you sat with the body until sundown when it was transferred to the mortuary.
28. They struggle to reconcile your offending with your character. They write about how your offending has followed you over the years, impacting the work you have been able to obtain.
29. Eli Gluck, has known you for the last 2 years since you returned to Australia. He describes you as socially awkward, but you overcome it to accommodate others' needs. He notes your humility, modesty and willingness to help.
30. Eliezer Kornhauser has known you for 25 years. Your friendship was renewed when you returned to Australia, where he had you to dinner two to three times a month to allay your loneliness and isolation upon your ostracization in the community. He describes you as profoundly wise, respectful, and friendly.
31. Kenneth and Leslie Leitner have known you for 25 years. They describe you as intelligent, patient, kind, understanding, compassionate, hardworking and, responsible. They describe how you visit the sick in hospital, often walking great distances on the Sabbath when you were forbidden to travel by car or public transport.
32. Rabbi Shimon Hecht has known you for the past 20 years through your religious community in Brooklyn. You are a trustworthy and respectful person. He acknowledges that have a bit of a temper. You are an integral member of the synagogue.
33. Wolf Markowitz, who has engaged you on a freelance basis as a translator since 2017. He describes you as hard working, honest, and trustworthy.
34. Steve Ashkinazy, who has known you for more than 30 years in both a social and professional capacity. He describes your high intelligence and profound integrity, and considers you a highly principled person who always seeks to do the right thing. He also described how your Aspergers Syndrome can make it difficult for you to read and understand subtle social cues and innuendo, and how this has been an impediment to your ability to seek physical intimate connections.
35. Steven Berke, who has known you for the last 30 years through the synagogue, he describes you as someone who is highly principled, reliable and generous. He says that you are held in high esteem by other members of your community.
36. Mr Hill argued that while all examples of sexual offending against children are serious, yours are low-level examples of indecent assault and sexual penetration of a child.
37. He underscored the following features of your offending in support of that argument:

(a) Your conduct was not accompanied by violence or threatened violence, and you did not try to secure your victim's silence;

(b) You were not in a position of authority or trust;

(c) You did not groom your victim;

(d) You stopped when your victim asked you to stop;

(e) You were emotionally, socially and sexually immature due to your sheltered upbringing.

1. He relied on your prior good character and the fact that you have not attracted any adverse attention from the authorities in the decades since this offending.
2. He argues that you have excellent prospects of rehabilitation, noting your strong employment history. You are supported by your local community in New York, many members of which wrote letters on your behalf.
3. He also leans heavily on the extraordinary delay in finalizing this case. The offending occurred between 1986 and 1988, but you were not charged until 20 September 2018. You were detained in New York in April 2023 and extradited from America in July 2023. You have remained in Melbourne, on bail, since 20 July 2023 and you have not been able to return to your home for close to three years, during which time you have lived in St Kilda but have not been able to work. Mr Hill says that at 62 you are not the man who offended against Menahem Waks. You have lived a modest, unexceptional, dutiful and diligent life in the four decades since this offending. You have demonstrated in that time that the community does not need to be protected from you.
4. Mr Hill also relies on two species of extra curial punishment you are said to have suffered. He told me that you have been shunned by the ultra-Orthodox community in Melbourne and several synagogues have frozen you out. You have responded by retreating and becoming more isolated. He also points to your enforced exile from New York, from your religious community there, from your friends and your source of work. New York has been your home since 1994. Your bail has been subject to reporting conditions and you have been isolated and unsupported in the years here awaiting trial.
5. Mr Hill provided the cases of Cohen[2], Lavery and Sharman[3], and Corfe[4]. He conceded that all the offenders in these cases save one had pleaded guilty and this is a powerful distinguishing feature. However, he says that the way your trial was conducted, namely, contesting the date of your offending and not the acts themselves, leaves alive the spectre of remorse. He also points to your apology or partial-apology to Mr Waks when he confronted you in New York in 2017.
6. In DPP and Cohen, the offender was sentenced to an aggregate term of imprisonment of 18 months, wholly suspended for a period of 2 years, after pleading guilty to 2 charges of indecent assault. The offender was between 20-22 years old at the time of the offending and the victim was aged between 11 -13 years. The charges involved two brief acts of oral sex performed on Mr Cohen by the victim. Mr Cohen was 53 years old at the time of sentence, had relevant prior convictions from 1996 when he received a wholly suspended 4-month jail term. There had been no further offending for the subsequent 30 years. Verdins limb 1 was said to apply in reducing the offender's moral culpability to a minor extent.
7. In DPP v Lavery and Sharman Mr Sharman was convicted after trial of one count of sexual penetration of a child under 16 and sentenced to a term of imprisonment of 18 months, wholly suspended for a period of 2 years. The offender was 25 years old at the time of offending and the victim was 14. The charged act was an episode of oral sex performed on Mr Sharman by the victim. Mr Sharman had prior convictions, but not for sex offences, and the traumatic effect incarceration would have on his children and the offender's psychological issues reduced the sentence he would otherwise have received .
8. In DPP and Corfe Mr Corfe was sentenced to a 12 month term of imprisonment, wholly suspended for 2 years, after pleading guilty to a rolled up charge of Sexual penetration of a child under the age of 16. The plea was entered after a sentence indication. The offender was 44 years old at the time and the victim was 14. The charged act was oral sex performed on Mr Corfe by the victim. At the time of sentence Mr Corfe was 62 years old, with no prior convictions. Evidence was led of his troubled upbringing, including exposure to violence, neglect, and rejection in his childhood. Additionally, he suffered from Post Traumatic Stress Disorder due to a sexual assault by three men in his late teens. Lastly, evidence of poor cardiac health also tempered the sentence.
9. I am required under s 5(2)(b) of the Sentencing Act 1991 (Vic) ("Sentencing Act") to consider "current sentencing practices".
10. In Stalio v The Queen[5], the Court of Appeal determined that when sentencing an offender after a significant delay, the court needs to consider sentencing practices at the time of the offending,[6] and that it would be "wrong for a prisoner to be sentenced to a substantially higher sentence than an offender who committed like offences at or about the time of the offence in issue, simply because of the lapse of time".[7]
11. It is difficult to divine what the sentencing range for this kind of offending was in the late 1980's. The Court of Appeal in R v AMP [2010][8] said helpfully that I am, "to have regard to the fact that the range of sentences imposed for this type of offending were generally lower than the present range of sentences for the same or similar offences"[9].
12. Dr Harkess submitted that a partially suspended sentence is open.
13. He submitted that the offending is objectively mid-range. He noted:

(a) Mr Waks' age at the time of the offending and the fact that you were twelve years older.

(b) The context of the relationship between you, namely:

(i) Your family and his belonged to the same ultra-orthodox Jewish community.

(ii) You both regularly attended the same synagogues

(iii) You frequented his home.

(c) He argued that while this relationship fell short of a special relationship of trust, you nonetheless exploited the familiarity between your families.

(d) Your offending was not spontaneous. It was, he argued, opportunistic and brazen to a degree. It occurred in the context of you having:

(i) Developed an unhealthy sexual infatuation with Mr Waks prior to the offending;

(ii) Having followed him when he went upstairs at 1:00am; and

(iii) In circumstances where your offending escalated quickly and persistently.

(e) Your gravest offending occurred in the women's toilets. You made a calculated decision to minimise the risk of detection.

(f) Your offending has had a long-term and debilitating impact upon Mr Waks and his family

1. He accepted that the penetration was brief.
2. He acknowledged that you had no prior criminal history, and that there were several factors in mitigation, namely:

(a) Your youth and immaturity at the time of the offending;

(b) Your significant health issues;

(c) Your absence of offending since;

(d) Delay;

(e) The limited role that specific deterrence and rehabilitation are likely to play in my sentence; and

(f) Your period of incarceration in the United States before being extradited.

1. He disagreed with Mr Hill's submission that you had become estranged from your community but conceded that you had been uprooted in returning to Australia.
2. He accepted that your upbringing was cloistered.
3. All child sex offending is grave and aberrant. It is transgressive, predatory and exploitative. It does enormous damage. Each instance leverages the power imbalance between perpetrator and victim. It is an attack on innocence, an attack on childhood. You were known to your victim's family. You had been to their house. They trusted you. You knew Menahem Waks was from a very large family and vulnerable. You exploited a high holy day. While the men were downstairs noisily debating the Torah, you pursued a child upstairs, determined to sexually corrupt him. The setting did not deter you.
4. When confronted in 2017, you resorted to rote paedophilic rationalisations. You said you were only following your victim's lead, that you were the inexperienced one, that you were only doing what you thought he wanted. You suggested to him that he was more sexually precocious than you. That is a transparently absurd proposition.
5. I do accept that you were a cloistered and immature man when you committed these offences. I accept that you were unworldly due to being raised in a home that shunned popular culture. I accept that your social interactions were fewer and more heavily proscribed given your family's adherence to Orthodox Judaism. That may have made you socially maladroit, but it does not explain or excuse your offending.
6. The indecent assaults are mid-range examples. The sexual penetration is also a mid-range example.
7. I accept that you had no history of offending when you did these things to Mr Waks. I also accept that you have not reoffended. I have been told that you have had a couple of unsatisfying, desultory adult relationships, but although you identify as gay, you are essentially asexual. I am told you are not attracted to children. I have not been provided with an expert's opinion asserting that you do not meet the diagnostic criteria for either a paedophilic or paraphilic disorder.
8. However, given that almost forty years have elapsed since this incident, your rehabilitation is largely complete. Your self-serving excuses to Mr Waks in the 2017 recorded conversation worry me, but you admitted your offending when he confronted you, albeit you denied that anything had happened at Shavuot.
9. I do not believe that you will reoffend. The trauma of being arrested in New York, confinement in detention there for three months and extradition to Melbourne should deter you if you were ever tempted to reoffend. The isolation, stigmatisation and marginalisation you encountered amongst the Orthodox community in St Kilda should also deter you. The fear of imprisonment which has dangled over you for almost three years should also dissuade you from jeopardising your freedom. More importantly, you have remained offence-free for decades. Your prospects are sound.
10. You stood your trial, which is your right. You will not be punished for that, but you do not attract the sentencing discount that accrues to those who frankly acknowledge their wrongdoing by pleading guilty.
11. The question of remorse is a little tricky. You did not contest that you had indecently assaulted Mr Waks, but the prosecution case was that your offending had occurred on the first night of Shavuot. You denied indecently assaulting or sexually penetrating Mr Waks on the first night of Shavuot. When it retired, the jury asked whether it needed to be satisfied that you had offended against Menahem Waks on the first night of Shavuot. I directed the jury that it had to be so satisfied.
12. In the recorded 2017 conversation, you apologised and expressed regret for any pain or distress your actions caused. That apology was tempered by your self-serving fiction that you were the ingenue and he was the minx. You were 12 years older than him and he was 10 to 12 years old when you assaulted him.
13. The value of this remorse is eroded by the deployment of stock paedophilic justifications. You are entitled to a soupcon of credit only, if that..
14. Pursuant to s 5 of the Sentencing Act 1991, the purposes for which you are to be sentenced are:

(a) To punish you in a manner and to an extent which is just in all of the circumstances;  

(b) To deter you or others from committing similar offences in future;  

(c) To facilitate rehabilitation;  

(d) To manifest the denunciation of your conduct;  

(e) To protect the community; or  

(f) A combination of two or more of these purposes.

1. Charge 1, Indecent assault of a person under 16 contrary to s 44(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980, you are convicted and sentenced to 10 months imprisonment wholly suspended for a period of three years
2. Charge 2, Indecent assault of a person under 16 contrary to s 44(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980 you are convicted and sentenced to 12 months imprisonment wholly suspended for a period of three years
3. Charge 3, Indecent assault of a person under 16 contrary to s 44(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980, you are sentenced to 14 months imprisonment, wholly suspended for a period of three years.
4. Charge 4, Sexual penetration of a person aged between 10 and 16 contrary to s48(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 198, you are sentenced to 22 months imprisonment with 3 months to serve, the balance of 15 months to be suspended for 2 years.
5. The sentence for charge 4 is the base sentence. The sentences for charges 1,2 and 3 are to be served concurrently with the sentence on charge 4 and on each other.
6. I declare that you have served three months imprisonment by way of pre-sentence detention.
7. You are a 'registerable offender' under s 6 of the Sex Offenders Registration Act 2004 (Vic), Sexual Penetration of a child aged between 10 and 16 is a class 1 offence, Indecent Assault (against a child) is a is a class 2 offence. As the offences arose out of the same incident they are treated as a single offence for the purposes of calculating the reporting period. For a single class 1 offence the reporting period is 15 years.
8. Given that terms of imprisonment have been ordered in relation to charges 1 and 2, you fall to be sentenced as a "serious offender" in relation to charges 3 and 4. The prosecution has not sought a disproportionate sentence and I have not imposed one.

[1] Menahem Waks has consented to being identified in this decision.

[2] DPP v Cohen [2024] VCC 1544.

[3] DPP v Lavery and Sharman [2023] VCC 2442.

[4] DPP v Corfe [2023] VCC 253.

[5] Stalio v The Queen [2012] VSCA 120.

[8] R v AMP [2010] VSCA 48

[9] R v AMP [2010] VSCA 48 at [34].