Guidance Required for Sentencing of Sexual Penetration with a Child under 12

Media Release

Embargoed until 2:00 p.m. (AEST), Friday 10 June 2016

The Sentencing Advisory Council today released a report indicating that sentencing guidance is required to address inconsistencies in the approach to sentencing for sexual penetration with a child under 12, and the inadequacy of current sentencing practices for the offence.

The Council studied five years’ worth of sentencing data, and the reasons for sentence contained in judges’ sentencing remarks, in all cases of sexual penetration with a child under 12 sentenced in Victoria from 1 July 2009 to 30 June 2014.

Key Findings

The Council found that, for principal charges that received imprisonment, the median term was four years, while the longest sentence was six years (representing less than 25% of the maximum penalty of 25 years). Just over 80% of charges received a term of imprisonment of less than five years, while almost 15% received non-custodial sentences.

Principal charges of rape during the same period attracted a median sentence of five years imprisonment – 25% higher than the median sentence for sexual penetration with a child under 12.

On average, child sexual penetration cases involved at least two charges, and an average of seven sexual offence charges in total. The median total effective imprisonment term for these cases was 6 years and 1 month, and the longest sentence imposed was 14 years and 6 months.

An analysis of County Court sentencing remarks revealed that:

  • reflecting historical understandings, sentences appear to be influenced by problematic assessments of sexual violence. In both the language used and the descriptions of offending, the harm to victims caused by the offending and the culpability of the offender tended to be underestimated;
  • adherence to current sentencing practices has inhibited increases in sentences despite countervailing sentencing considerations and growing recognition of the grave harm involved in this type of offending; and
  • the courts’ approach to proportionality, totality, and cumulation has also acted to limit increases in sentences for this offence.

The Council’s textual analysis also revealed significant differences between judges in their approach to a number of sentencing considerations, including:

  • whether and how Verdins principles (which concern how a court is to consider mental impairment of an offender when sentencing) apply to reduce the offender’s culpability; and
  • the treatment of the offender’s ‘previous good character’ as a mitigating factor when it assisted the offender to commit the offence.

The Council examined sentencing for this offence in parallel with its consideration of different models of sentencing guidance. The Council’s report Sentencing Guidance in Victoria is also released today.

Comments Attributable to Council Chair Emeritus Professor Arie Freiberg

‘Sentences for sexual penetration with a child under 12 must be proportionate to the offending, but must also reflect the community’s abhorrence of sexual offences against young children, and our greater understanding of the life-long harms that result.’

‘Sentencing guidance, in the form of a guideline judgement, could promote greater consistency in the approach courts take to assessing aggravating and mitigating circumstances for this offence. Such guidance could also address outdated historical understandings of violence that may unintentionally diminish assessment of the violence inherent in all sexual offending.’

‘A guideline judgment under the Council’s enhanced guideline judgment scheme could also ensure that current sentencing practices adequately reflect the seriousness represented by all examples of this offence.’

The reports – Sentencing of Offenders: Sexual Penetration with a Child under 12 and Sentencing Guidance in Victoria: Report – are available on the Council’s website.

Glossary

  • Principal charge: the charge in a case that received the most severe sentence.
  • Total effective imprisonment term: the maximum time an offender must serve in prison in relation to all charges sentenced in a case, sometimes referred to as the ‘head’ sentence.