Sentencing Trends for Persistent Sexual Abuse of a Child under 16 in the Higher Courts of Victoria 2007-08 to 2011-12

Sentencing Snapshot 148
Date of Publication: 
27 June 2013

Sentencing Snapshot no. 148 describes sentencing outcomes for the offence of persistent sexual abuse of a child under 16 in the County Court of Victoria between 2007-08 and 2011-12.

The most recent Sentencing Snapshot for this offence is Snapshot no. 205.

You can also find statistics for this offence on SACStat.

Authored and published by the Sentencing Advisory Council
© Copyright State of Victoria, Sentencing Advisory Council, 2013

Introduction

This Sentencing Snapshot describes sentencing outcomes[1] for the offence of persistent sexual abuse of a child under 16 (previously ‘maintain a sexual relationship with a child under 16’) and details the age and gender[2] of people sentenced for this offence in the County Court of Victoria between 2007–08 and 2011–12.[3] Except where otherwise noted, the data represent sentences imposed at first instance.

A person who is involved in at least three relevant sexual offences[4] with a child under the age of 16 over a specific period is guilty of the offence of persistent sexual abuse of a child under 16.[5]

It is not necessary to prove any of the acts with the same degree of specificity as to the date, time, place, circumstances or occasion as would be required if each act were charged as a separate offence.[6]

Persistent sexual abuse of a child under 16 is an indictable offence and carries a maximum penalty of 25 years’ imprisonment[7] and/or a fine of 3,000 penalty units.[8] Indictable offences are more serious offences triable before a judge and jury in the County or Supreme Court.

Persistent sexual abuse of a child under 16 was the principal offence[9] in 0.4% of cases sentenced in the higher courts between 2007–08 and 2011–12.

People sentenced

From 2007–08 to 2011–12, 43 people were sentenced in the higher courts for a principal offence of persistent sexual abuse of a child under 16. These people are the focus of this Snapshot. However, an additional 3 people were sentenced in cases that involved persistent sexual abuse of a child under 16 but where some other offence was the principal offence. In total, 46 people were sentenced in the higher courts for 58 charges of persistent sexual abuse of a child under 16.

Figure 1 shows the number of people sentenced for the principal offence of persistent sexual abuse of a child under 16 by their gender. Over the five years depicted, the majority of those sentenced were men (97.7% or 42 of 43 people), including all of the 4 people sentenced in 2011–12.

Figure 1: The number of people sentenced for persistent sexual abuse of a child under 16 by gender, 2007–08 to 2011–12

Financial year

Year Gender    
  Male Female Total
2007–08 10 1 11
2008–09 9 0 9
2009–10 14 0 14
2010–11 5 0 5
2011–12 4 0 4
Total 42 1 43

Sentence types and trends

Figure 2 shows the total number of people sentenced for persistent sexual abuse of a child under 16 and the number who received an immediate custodial sentence. An immediate custodial sentence is one that involves at least some element of immediate (as opposed to wholly suspended) imprisonment or detention.[10] Over the five-year period, 93% of people were given an immediate custodial sentence. This ranged from 80% (4 of 5) in 2010–11 to 100% in 2008–09, 2009–10 and 2011–12.

Figure 2: The number of people sentenced for persistent sexual abuse of a child under 16 and the number who received an immediate custodial sentence, 2007–08 to 2011–12

Financial year Sentence type    
  Custodial Non-custodial Total
2007–08 9 2 11
2008–09 9 0 9
2009–10 14 0 14
2010–11 4 1 5
2011–12 4 0 4
Total 40 3 43

Table 1 shows the number of people sentenced for persistent sexual abuse of a child under 16 from 2007–08 to 2011–12 by the types of sentences imposed.

Over the five-year period, the majority of the people sentenced for persistent sexual abuse of a child under 16 received a period of imprisonment (91% or 39 of 43 people).

The number of people receiving imprisonment was lowest during 2010–11 and 2011–12 (4 people each) and was highest during 2008–09 (9 people). The percentage of people receiving imprisonment was lowest during 2007–08 (73% or 8 of 11 people), and highest during 2008–09, 2009–10 and 2011–12 (100% each).

Table 1: The number and percentage of people sentenced for persistent sexual abuse of a child under 16 by sentence type, 2007–08 to 2011–12

Sentence type 2007–08 2008–09 2009–10 2010–11 2011–12 Total
Imprisonment 8 (73%) 9 (100%) 14 (100%) 4 (80%) 4 (100%) 39 (91%)
Wholly suspended sentence 1 (9%) 0 (–) 0 (–) 0 (–) 0 (–) 1 (2%)
Partially suspended sentence 1 (9%) 0 (–) 0 (–) 0 (–) 0 (–) 1 (2%)
Mix (fine and adjourned undertaking) 0 (–) 0 (–) 0 (–) 1 (20%) 0 (–) 1 (2%)
Community-based order 1 (9%) 0 (–) 0 (–) 0 (–) 0 (–) 1 (2%)
People sentenced 11 9 14 5 4 43

Age and gender of people sentenced

Figure 3 shows the gender of people sentenced for persistent sexual abuse of a child under 16 grouped by their age[11] between 2007–08 and 2011–12. The average age of people sentenced for persistent sexual abuse of a child under 16 was 44 years and 2 months. There were no juveniles sentenced over this period.[12]

Figure 3: The number of people sentenced for persistent sexual abuse of a child under 16 by gender and age, 2007–08 to 2011–12

Age group (years) Gender  
  Male Female
19 1 0
20 to 24 3 0
25 to 29 2 0
30 to 34 4 1
35 to 39 6 0
40 to 44 6 0
45 to 49 3 0
50 to 54 6 0
55 to 59 4 0
60 to 64 3 0
65 or older 4 0

Sentence types by gender

Table 2 shows the types of sentences imposed for persistent sexual abuse of a child under 16 grouped by gender. Only males received sentences of imprisonment, partially suspended sentences, mixed (fine and adjourned undertakings) or a community-based order. The only female sentenced for this offence received a wholly suspended sentence.

Table 2: The number and percentage of people sentenced for persistent sexual abuse of a child under 16 by sentence type and gender, 2007–08 to 2011–12

Sentence type Male Female
Imprisonment 39 (93%) 0 (–)
Wholly suspended sentence 0 (–) 1 (100%)
Partially suspended sentence 1 (2%) 0 (–)
Mix (fine and adjourned undertaking) 1 (2%) 0 (–)
Community-based order 1 (2%) 0 (–)
People sentenced 42 1

Sentence types by age

As shown in Table 1, the most common sentence type was imprisonment. The following analysis examines this sentence type by the offender’s age group.

Imprisonment

As shown in Figure 4, sentences of imprisonment were most likely to be given to people aged 35 years and older (100% of the people in this age group).

Conversely, sentences of imprisonment were least common for people younger than 35 (64% or 7 of the 11 people in this age group).

Figure 4: The percentage of people who received a period of imprisonment for persistent sexual abuse of a child under 16 by age group, 2007–08 to 2011–12

Age group (years) Percentage
Younger than 35 63.6
35 to 39 100.0
40 to 44 100.0
45 to 49 100.0
50 to 54 100.0
55 or older 100.0

Principal and total effective sentences

Two methods for describing sentence types and lengths are examined in this section. One relates to the principal sentence and examines sentences for the offence at a charge level. The other relates to the total effective sentence and examines sentences for the offence at a case level.

The principal sentence is the individual sentence imposed for the charge that is the principal offence.[13]

The total effective sentence in a case with a single charge is the principal sentence. The total effective sentence in a case with multiple charges is the sentence that results from the court ordering the individual sentences for each charge to be served concurrently (at the same time) or wholly or partially cumulatively (one after the other).

In many cases, the total effective sentence imposed on a person will be longer than the principal sentence. Principal sentences for persistent sexual abuse of a child under 16 must be considered in this broader context. The following sections analyse the use of imprisonment for the offence of persistent sexual abuse of a child under 16 from 2007–08 to 2011–12.

Principal sentence of imprisonment

A total of 39 people received a principal sentence of imprisonment for persistent sexual abuse of a child under 16 between 2007–08 and 2011–12.

Figure 5 shows these people by the length of their imprisonment term. Imprisonment terms ranged from 1 year and 6 months to 12 years, while the median length of imprisonment was 6 years (meaning that half of the imprisonment terms were shorter than 6 years and half were longer).

The most common length of imprisonment imposed was 6 to less than 7 years (8 people).

Figure 5: The number of people sentenced to imprisonment for persistent sexual abuse of a child under 16 by length of imprisonment term, 2007–08 to 2011–12

Imprisonment length Number
1 to less than 2 years 1
2 to less than 3 years 2
3 to less than 4 years 1
4 to less than 5 years 6
5 to less than 6 years 6
6 to less than 7 years 8
7 to less than 8 years 6
8 to less than 9 years 1
9 to less than 10 years 4
10 to less than 11 years 2
11 to less than 12 years 0
12 to less than 13 years 2

Expanding the analysis from principal sentences of imprisonment to all charges that received imprisonment, there were 53 charges of persistent sexual abuse of a child under 16 sentenced to imprisonment between 2007–08 and 2011–12. Imprisonment lengths for persistent sexual abuse of a child under 16 ranged from 1 year and 6 months to 12 years while the median was 6 years and the most common length was 6 to less than 7 years (13 of 53 charges or 25%).

Returning to principal sentences of imprisonment, as shown in Figure 6, the average length of imprisonment term imposed on people sentenced for persistent sexual abuse of a child under 16 ranged from 5 years and 4 months in 2007–08 to 8 years and 6 months in 2011–12.

From 2007–08 to 2011–12, all of those people who received a term of imprisonment for persistent sexual abuse of a child under 16 were men (39 people or 100.0%).

Figure 6: The average length of imprisonment term imposed on people sentenced for persistent sexual abuse of a child under 16, 2007–08 to 2011–12

Financial year Average length of imprisonment
2007–08 5 years, 4 months
2008–09 6 years, 9 months
2009–10 5 years, 6 months
2010–11 7 years, 9 months
2011–12 8 years, 6 months

Other offences finalised at the same hearing

Often people prosecuted for persistent sexual abuse of a child under 16 face multiple charges, which are finalised at the same hearing. This section looks at the range of offences for which offenders have been sentenced at the same time as being sentenced for the principal offence of persistent sexual abuse of a child under 16.

Figure 7 shows the number of people sentenced for the principal offence of persistent sexual abuse of a child under 16 by the total number of offences for which sentences were set. The number of sentenced offences per person ranged from 1 to 11, while the median was 2 offences. There were 20 people (46.5%) sentenced for the single offence of persistent sexual abuse of a child under 16. The average number of offences per person sentenced for persistent sexual abuse of a child under 16 was 2.77.

Figure 7: The number of people sentenced for the principal offence of persistent sexual abuse of a child under 16 by the number of sentenced offences per person, 2007–08 to 2011–12

Number of offences Number of people
1 20
2 10
3 3
4 2
5 to 9 6
10 or more 2

While Figure 7 presents the number of sentenced offences for those sentenced for persistent sexual abuse of a child under 16, Table 3 shows what the accompanying offences were. It shows the number and percentage of people sentenced for the 10 most common offences. The last column sets out the average number of offences sentenced per person. For example, 8 of the total 43 people (18.6%) also received sentences for indecent act with a child under 16. On average, they were sentenced for 2.50 counts of indecent act with a child under 16.

Table 3: The number and percentage of people sentenced for the principal offence of persistent sexual abuse of a child under 16 by the most common offences that were sentenced and the average number of those offences that were sentenced, 2007–08 to 2011–12

  Offence No. % Avg.
1 Maintain a sexual relationship with a child under 16 43 100.0 1.26
2 Indecent act with a child under 16 8 18.6 2.50
3 Make/produce child pornography 5 11.6 1.20
4 Possess child pornography 5 11.6 1.00
5 Sexual penetration of a child under 16 4 9.3 3.25
6 Indecent assault 3 7.0 1.33
7 Incest 2 4.7 3.50
8 Traffick drug of dependence to a child 1 2.3 3.00
9 Child stealing 1 2.3 1.00
10 Procure minor for making child pornography 1 2.3 1.00
  People sentenced 43 100.0 2.77

Total effective sentence of imprisonment

There were 39 people given a total effective sentence of imprisonment.[14] Figure 8 shows the number of people sentenced to imprisonment for persistent sexual abuse of a child under 16 between 2007–08 and 2011–12 by length of total effective sentence. The length of total effective sentences ranged from 2 years and 6 months to 14 years, while the median total effective length of imprisonment was 7 years (meaning that half of the total effective sentence lengths were below 7 years and half were above).

Total effective imprisonment lengths were widely dispersed, with no particular length category being more common than all of the others.

Figure 8: The number of people sentenced to imprisonment for persistent sexual abuse of a child under 16 by length of total effective imprisonment term, 2007–08 to 2011–12

Total effective imprisonment length Number of people
2 to less than 3 years 2
3 to less than 4 years 1
4 to less than 5 years 5
5 to less than 6 years 5
6 to less than 7 years 5
7 to less than 8 years 5
8 to less than 9 years 2
9 to less than 10 years 5
10 to less than 11 years 2
11 to less than 12 years 1
12 to less than 13 years 3
13 to less than 14 years 2
14 to less than 15 years 1

Non-parole period

When a person is sentenced to a term of immediate imprisonment of one year or more, the court has the discretion to fix a non-parole period. Where a non-parole period is fixed, the person must serve that period before becoming eligible for parole. Where no non-parole period is set by the court, the person must serve the entirety of the imprisonment term.

Under section 11(4) of the Sentencing Act 1991 (Vic), if a court sentences an offender to imprisonment in respect of more than one offence, the non-parole period set by the court must be in respect of the total effective sentence of imprisonment that the offender is liable to serve under all the sentences imposed. In many cases, the non-parole period will be longer than the individual principal sentence for persistent sexual abuse of a child under 16. Sentences and non-parole periods must be considered in this broader context.

Of the 39 people who were sentenced to imprisonment for persistent sexual abuse of a child under 16, all were eligible to have a non-parole period fixed and all were given a non-parole period (100%). Figure 9 shows the number of people sentenced to imprisonment for persistent sexual abuse of a child under 16 between 2007–08 and 2011–12 by length of non-parole period. Non-parole periods ranged from 1 year and 1 month to 11 years and 6 months, while the median length of the non-parole period was 5 years (meaning that half of the non-parole periods were below 5 years and half were above).

The most common non-parole periods imposed were 4 to less than 5 years and 5 to less than 6 years (6 people each).

Figure 9: The number of people sentenced to imprisonment for persistent sexual abuse of a child under 16 by length of non-parole period, 2007–08 to 2011–12

Non-parole period Number of people
1 to less than 2 years 3
2 to less than 3 years 4
3 to less than 4 years 6
4 to less than 5 years 6
5 to less than 6 years 5
6 to less than 7 years 3
7 to less than 8 years 4
8 to less than 9 years 1
9 to less than 10 years 4
10 to less than 11 years 2
11 to less than 12 years 1

Total effective sentences of imprisonment and non-parole periods

Figure 10 presents the average length of total effective sentences of imprisonment compared with the average length of non-parole periods for all people from 2007–08 to 2011–12.

From 2007–08 to 2011–12, the average length of total effective sentences for all people ranged from 6 years and 6 months in 2009–10 to 9 years and 11 months in 2010–11. Over the same period, the average length of non-parole periods ranged from 4 years and 4 months in 2009–10 to 7 years and 11 months in 2010–11.

Figure 10: The average total effective sentence and the average non-parole period imposed on people sentenced to imprisonment for persistent sexual abuse of a child under 16, 2007–08 to 2011–12

Financial year Total effective sentence length Non-parole period
2007–08 6 years, 10 months 4 years, 6 months
2008–09 7 years, 11 months 5 years, 7 months
2009–10 6 years, 6 months 4 years, 4 months
2010–11 9 years, 11 months 7 years, 11 months
2011–12 9 years, 3 months 6 years, 7 months

Total effective sentence of imprisonment by non-parole period

While Figures 8 and 9 present the lengths of the total effective sentences and non-parole periods separately, Figure 11 combines the two methods of describing sentence lengths in the one diagram. It shows the total effective sentence and non-parole period for persistent sexual abuse of a child under 16 for each individual person.

The centre of each ‘bubble’ on the chart represents a combination of imprisonment length and non-parole period, while the size of the bubble reflects the number of people who received that particular combination. Sentence lengths and non-parole periods that are longer than one year are rounded down to the nearest year of imprisonment, while sentence lengths and non-parole periods of less than one year are grouped into the ‘<1 year’ category. For example, a sentence length of 2 years and 6 months would be included as a sentence length of 2 years for the purposes of Figure 11.

As shown, the most common combination of imprisonment length and non-parole period imposed was 5 years with a non-parole period of 3 years, and 6 years with a non-parole period of 4 years (5 people each – as represented by the two largest bubbles on the chart). The length of imprisonment ranged from 2 years and 6 months with a non-parole period of 1 year and 1 month to 14 years with a non-parole period of 10 years.

Figure 11: The number of people sentenced to imprisonment for persistent sexual abuse of a child under 16 by the total effective sentence and the non-parole period imposed, 2007–08 to 2011–12

Total effective sentence category Non-parole period category Total
2 to less than 3 years 1 to less than 2 years 2
3 to less than 4 years 1 to less than 2 years 1
4 to less than 5 years 2 to less than 3 years 4
4 to less than 5 years 3 to less than 4 years 1
5 to less than 6 years 3 to less than 4 years 5
6 to less than 7 years 4 to less than 5 years 5
7 to less than 8 years 4 to less than 5 years 1
7 to less than 8 years 5 to less than 6 years 3
7 to less than 8 years 6 to less than 7 years 1
8 to less than 9 years 5 to less than 6 years 2
9 to less than 10 years 6 to less than 7 years 2
9 to less than 10 years 7 to less than 8 years 3
10 to less than 11 years 7 to less than 8 years 1
10 to less than 11 years 8 to less than 9 years 1
11 to less than 12 years 9 to less than 10 years 1
12 to less than 13 years 10 to less than 11 years 1
12 to less than 13 years 9 to less than 10 years 2
13 to less than 14 years 11 to less than 12 years 1
13 to less than 14 years 9 to less than 10 years 1
14 to less than 15 years 10 to less than 11 years 1
Total number of people   39

Suspended sentences of imprisonment

There were 2 people given a suspended sentence of imprisonment as their total effective sentence. Of these, one person received a wholly suspended sentence of 2 years and 6 months while the other person received a partially suspended sentence of 1 year’s imprisonment with 9 months suspended.

Appeals

A sentence imposed on a person may be appealed[15] by that person or by the Crown. A person sentenced may also appeal against their conviction. All appeals made in relation to people sentenced in the higher courts are determined by the Court of Appeal.

Up to June 2011–12, 2 people sentenced for a principal offence of persistent sexual abuse of a child under 16 in the period from 2007–08 to 2011–12 successfully appealed their convictions. One person received an acquittal while the other person was granted a retrial. Thus, the number of people sentenced from 2007–08 to 2011–12 for a principal offence of persistent sexual abuse of a child under 16 is reduced to 41 people once appeals are considered.

As a result of successful appeals against sentence, the total effective sentence and/or the non-parole period changed for one person. This appeal was made by the Crown and resulted in a more severe sentence. This person was originally given a total effective sentence of 5 years and 8 months’ imprisonment with a non-parole period of 3 years. After a successful Crown appeal, the sentence changed to 8 years’ imprisonment with a non-parole period of 5 years and 6 months.

The principal sentence also changed for this person as a result of a successful appeal, from 5 years’ imprisonment to 7 years on appeal.

With the original sentencing data revised to incorporate appeal outcomes, the adjusted longest total effective imprisonment term was unchanged at 14 years’ imprisonment with a non-parole period of 10 years and the adjusted longest principal sentence of imprisonment was also unchanged at 12 years.

Summary

Between 2007–08 and 2011–12, 43 people were sentenced for persistent sexual abuse of a child under 16 in the higher courts. Over this period, the majority of people sentenced were men (98%), while 60% were between the ages of 30 and 54.

The majority of the people sentenced for persistent sexual abuse of a child under 16 received a period of imprisonment (91%).

Imprisonment was more common for people aged 35 or older.

Each of the 43 people was sentenced for an average of 2.77 offences, including 1.26 offences of persistent sexual abuse of a child under 16. The most common offence finalised in conjunction with persistent sexual abuse of a child under 16 was indecent act with a child under 16 (18.6% of all cases). The number and range of offences for which people with a principal offence of persistent sexual abuse of a child under 16 were sentenced help explain why imprisonment sentence lengths were longer for the total effective sentence than for the principal sentence. The median total effective imprisonment length was 7 years, while the median principal imprisonment length was 6 years.

Total effective imprisonment lengths ranged from 2 years and 6 months with a non-parole period of 1 year and 1 month to 14 years with a non-parole period of 10 years. The most common sentences of imprisonment were 5 years’ imprisonment with a non-parole period of 3 years and 6 years’ imprisonment with a non-parole period of 4 years.

The only successful sentence appeal was made by the Crown. When the results of the appeal outcomes are incorporated into the original sentencing data, the range of total effective imprisonment lengths and principal imprisonment sentence lengths remains unchanged.

Endnotes

[1] This series of reports includes custodial and non-custodial supervision orders imposed under Part 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) as sentencing orders and in the count of people sentenced. These orders are not sentencing orders, as they are imposed in cases where the defendant is not guilty because of mental impairment. However, they are included in this report as they are an important form of disposition of criminal charges.

This Sentencing Snapshot is an update of Sentencing Snapshot no. 116, which describes sentencing trends for maintaining a sexual relationship with a child under 16 between 2005–06 and 2009–10.

[2] The information source for sentencing outcomes for persistent sexual abuse of a child under 16 only contains information on age and gender characteristics. No other demographic analysis is possible using this data source.

[3] The source data for the statistical information presented in this Snapshot were provided by the Business Intelligence area of the Courts and Tribunals unit within the Department of Justice (Vic). The Sentencing Advisory Council regularly undertakes extensive quality control measures for current and historical data. While every effort is made to ensure that the data analysed in this report are accurate, the data are subject to revision.

[4] The relevant sexual offences for the purposes of this provision are any offences under subdivisions (8A), (8B) and (8C) of the Crimes Act 1958 (Vic). These include offences such as rape, indecent assault, incest and sexual offences against children.

[5] Crimes Act 1958 (Vic) s 47A. The title of this offence was amended by section 11 of the Crimes (Sexual Offences) Act2006 (Vic). After the commencement of that act on 1 December 2006, the offence title was ‘persistent sexual abuse of a child under the age of 16’.

[6] Crimes Act 1958 (Vic) s 47A(3).

[7] Crimes Act 1958 (Vic) s 47A(4).

[8] The value of a penalty unit changes each year and can be found in the Victorian Government Gazette and on the Office of the Chief Parliamentary Counsel website (link to external website opens in a new window).

[9] If a person is sentenced for a case with a single charge, the offence for that charge is the principal offence. If a person is sentenced for more than one charge in a single case, the principal offence is the offence for the charge that attracted the most serious sentence according to the sentencing hierarchy.

[10] Immediate custodial sentence includes imprisonment and partially suspended sentences.

[11] Age is at the time of sentencing.

[12] Some defendants who were under the age of 18 at the time of committing the alleged offence and who were not 19 years or older at the time proceedings commenced may have been dealt with in the Children’s Court of Victoria.

[13] Refer to endnote 9.

[14] All of the 39 people who were sentenced to imprisonment as the principal sentence were also given imprisonment as the total effective sentence.

[15] Appeals data were collected by the Sentencing Advisory Council from transcripts of sentencing remarks of criminal appeals on the Australasian Legal Information Institute’s website (link to external website opens in a new window).