Sentencing Trends for Sexual Penetration of a Child Aged between 12 and 16 in the Higher Courts of Victoria 2007-08 to 2011-12

Sentencing Snapshot 150
Date of Publication: 
27 June 2013

Sentencing Snapshot no. 150 describes sentencing outcomes for the offence of sexual penetration of a child aged between 12 and 16 in the County Court of Victoria between 2007-08 and 2011-12.

The most recent Sentencing Snapshot for this offence is Snapshot no. 209.

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 sexual penetration of a child aged between 12 and 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 takes part in an act of sexual penetration[4] with a child aged between 12 and 16 is guilty of an indictable offence.[5] Indictable offences are more serious offences triable before a judge and jury in the County or Supreme Court. The maximum penalty for this offence is 10 years’ imprisonment[6] and/or a fine of 1,200 penalty units.[7]

Sexual penetration of a child aged between 12 and 16 was the principal offence[8] in 3.4% of cases sentenced in the higher courts between 2007–08 and 2011–12.

People sentenced

From 2007–08 to 2011–12, 343 people were sentenced in the higher courts for a principal offence of sexual penetration of a child aged between 12 and 16.[9]

Figure 1 shows the number of people sentenced for the principal offence of sexual penetration of a child aged between 12 and 16 by their gender. Over the five years depicted, the majority of those sentenced were men (96.5% or 331 of the 343 people), including 49 of the 52 people sentenced in 2011–12.

Figure 1: The number of people sentenced for sexual penetration of a child aged between 12 and 16 by gender, 2007–08 to 2011–12

Financial year Gender    
  Male Female Total
2007–08 90 5 95
2008–09 79 1 80
2009–10 58 2 60
2010–11 55 1 56
2011–12 49 3 52
Total 331 12 343

Sentence types and trends

Figure 2 shows the total number of people sentenced for sexual penetration of a child aged between 12 and 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, 53% of people were given an immediate custodial sentence. This peaked at 63% (33 of 52 people) in 2011–12 after a low of 45% (36 of 80 people) in 2008–09.

Figure 2: The number of people sentenced for sexual penetration of a child aged between 12 and 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 45 50 95
2008–09 36 44 80
2009–10 34 26 60
2010–11 35 21 56
2011–12 33 19 52
Total 183 160 343

Table 1 shows the number of people sentenced for sexual penetration of a child aged between 12 and 16 from 2007–08 to 2011–12 by the types of sentences imposed.

Over the five-year period, around 4 in 10 people sentenced for sexual penetration of a child aged between 12 and 16 received a period of imprisonment (43% or 148 of 343 people), while 24% received a wholly suspended[11] sentence of imprisonment and 13% received a community-based order.

The number of people given imprisonment was lowest during 2009–10 (25 people) and highest during 2007–08 (36 people). The percentage of people receiving imprisonment was lowest during 2008–09 (36% or 29 of 80 people) and highest during 2011–12 (60% or 31 of 52 people).

The number of people given a wholly suspended sentence was lowest during 2011–12 (10 people) while the percentage was lowest during 2007–08 (18% or 17 of 95 people). Both the number and percentage were highest during 2008–09 (34% or 27 of 80 people).

The number and percentage of people receiving a community-based order were lowest during 2011–12 (6% or 3 of 52 people) and highest during 2007–08 (18% or 17 of 95 people).

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

Sentence type 2007–08 2008–09 2009–10 2010–11 2011–12 Total
Imprisonment 36 (38%) 29 (36%) 25 (42%) 27 (48%) 31 (60%) 148 (43%)
Wholly suspended sentence 17 (18%) 27 (34%) 15 (25%) 14 (25%) 10 (19%) 83 (24%)
Community-based order 17 (18%) 9 (11%) 7 (12%) 7 (13%) 3 (6%) 43 (13%)
Intensive correction order 1 (1%) 4 (5%) 1 (2%) 0 (–) 1 (2%) 7 (2%)
Mix (community-based order and fine) 2 (2%) 0 (–) 0 (–) 0 (–) 0 (–) 2 (<1%)
Aggregate intensive correction order 1 (1%) 0 (–) 0 (–) 0 (–) 0 (–) 1 (<1%)
Community correction order 0 (–) 0 (–) 0 (–) 0 (–) 4 (8%) 4 (1%)
Partially suspended sentence 9 (9%) 6 (8%) 7 (12%) 6 (11%) 2 (4%) 30 (9%)
Adjourned undertaking without conviction 5 (5%) 0 (–) 2 (3%) 0 (–) 1 (2%) 8 (2%)
Adjourned undertaking with conviction 5 (5%) 2 (3%) 0 (–) 0 (–) 0 (–) 7 (2%)
Residential treatment order 0 (–) 0 (–) 2 (3%) 1 (2%) 0 (–) 3 (<1%)
Youth justice centre order 0 (–) 1 (1%) 0 (–) 1 (2%) 0 (–) 2 (<1%)
Aggregate wholly suspended sentence 1 (1%) 0 (–) 1 (2%) 0 (–) 0 (–) 2 (<1%)
Non-custodial supervision order 0 (–) 1 (1%) 0 (–) 0 (–) 0 (–) 1 (<1%)
Mix (wholly suspended sentence and fine) 1 (1%) 0 (–) 0 (–) 0 (–) 0 (–) 1 (<1%)
Good behaviour bond 0 (–) 1 (1%) 0 (–) 0 (–) 0 (–) 1 (<1%)
People sentenced 95 80 60 56 52 343

Age and gender of people sentenced

Figure 3 shows the gender of people sentenced for sexual penetration of a child aged between 12 and 16 grouped by their age[12] from 2007–08 to 2011–12. The average age of people sentenced for sexual penetration of a child aged between 12 and 16 was 31 years. Men sentenced over this period were much older than women (an average age of 31 years and 1 month for men compared with 28 years and 5 months for women). There were no juveniles sentenced over this period.[13]

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

Age group (years) Gender  
  Male Female
18 to 19 19 2
20 to 24 123 5
25 to 29 60 0
30 to 34 29 1
35 to 39 29 2
40 to 44 17 2
45 to 49 19 0
50 to 54 14 0
55 or older 21 0

Sentence types by gender

Table 2 shows the types of sentences imposed for sexual penetration of a child aged between 12 and 16 grouped by gender. As shown, a higher percentage of men received a period of imprisonment (44.0% compared with 25% of women) and a community-based order (13% compared with no women). Conversely, a higher percentage of women received a partially suspended sentence of imprisonment (25% compared with 8% of men), a community correction order (8% compared with 0.9% of men), an adjourned undertaking without conviction (8% compared with 2%) and a wholly suspended sentence of imprisonment (33% compared with 24%).

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

Sentence type Male Female
Imprisonment 145 (44%) 3 (25%)
Wholly suspended sentence 79 (24%) 4 (33%)
Community-based order 43 (13%) 0 (–)
Intensive correction order 7 (2%) 0 (–)
Mix (community-based order and fine) 2 (<1%) 0 (–)
Aggregate intensive correction order 1 (<1%) 0 (–)
Community correction order 3 (<1%) 1 (8%)
Partially suspended sentence 27 (8%) 3 (25%)
Adjourned undertaking without conviction 7 (2%) 1 (8%)
Adjourned undertaking with conviction 7 (2%) 0 (–)
Residential treatment order 3 (<1%) 0 (–)
Youth justice centre order 2 (<1%) 0 (–)
Aggregate wholly suspended sentence 2 (<1%) 0 (–)
Non-custodial supervision order 1 (<1%) 0 (–)
Mix (wholly suspended sentence and fine) 1 (<1%) 0 (–)
Good behaviour bond 1 (<1%) 0 (–)
People sentenced 331 12

Sentence types by age

As shown in Table 1, the four most common sentence types were imprisonment, wholly suspended sentences of imprisonment, community-based orders and partially suspended sentences of imprisonment. The following analysis examines these sentence types by the offender’s age group.

Imprisonment

As shown in Figure 4, sentences of imprisonment were most likely to be given to people aged 40 years and older (78% or 57 of the 73 people in this age group).

Conversely, sentences of imprisonment were least common for those aged younger than 25 years (16% or 24 of the 149 people in this age group).

Figure 4: The percentage of people who received a period of imprisonment for sexual penetration of a child aged between 12 and 16 by age group, 2007–08 to 2011–12

Age group (years) Percentage
Younger than 25 16.1
25 to 29 46.7
30 to 34 60.0
35 to 39 67.7
40 or older 78.1

Wholly suspended sentences of imprisonment

As shown in Figure 5, wholly suspended sentences of imprisonment were most likely to be given to people aged under 25 years (33% or 49 of the 149 people in this age group).

Conversely, wholly suspended sentences of imprisonment were least common for those aged 40 years and older (12% or 9 of the 73 people in this age group).

Figure 5: The percentage of people who received a wholly suspended sentence of imprisonment for sexual penetration of a child aged between 12 and 16 by age group, 2007–08 to 2011–12

Age group (years) Percentage
Younger than 25 32.9
25 to 29 25.0
30 to 34 16.7
35 to 39 16.1
40 or older 12.3

Community-based orders

As shown in Figure 6, community-based orders were most likely to be given to people aged under 25 years (23% or 35 of the 149 people in this age group).

Conversely, community-based orders were not given to people aged 35 years or older.

Figure 6: The percentage of people who received a community-based order for sexual penetration of a child aged between 12 and 16 by age group, 2007–08 to 2011–12

Age group (years) Percentage
Younger than 25 23.5
25 to 29 11.7
30 to 34 3.3
35 to 39 0.0
40 or older 0.0

Partially suspended sentences of imprisonment

As shown in Figure 7, partially suspended sentences of imprisonment were most likely to be given to people aged 35–39 years (16% or 5 of the 31 people in this age group).

Conversely, partially suspended sentences of imprisonment were least common for those aged under 25 years (6% or 9 of the 149 people in this age group).

Figure 7: The percentage of people who received a partially suspended sentence of imprisonment for sexual penetration of a child aged between 12 and 16 by age group, 2007–08 to 2011–12

Age group (years) Percentage
Younger than 25 6.0
25 to 29 8.3
30 to 34 13.3
35 to 39 16.1
40 or older 9.6

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.[14]

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 sexual penetration of a child aged between 12 and 16 must be considered in this broader context. The following sections analyse the use of imprisonment for the offence of sexual penetration of a child aged between 12 and 16 from 2007–08 to 2011–12.

Principal sentence of imprisonment

A total of 148 people received a principal sentence of imprisonment for sexual penetration of a child aged between 12 and 16 from 2007–08 to 2011–12.

Figure 8 shows these people by the length of their imprisonment term. Imprisonment terms ranged from 6 months to 7 years, while the median length of imprisonment was 2 years and 6 months (meaning that half of the imprisonment terms were shorter than 2 years and 6 months and half were longer).

The most common length of imprisonment imposed was 2 to less than 3 years (58 people).

Figure 8: The number of people sentenced to imprisonment for sexual penetration of a child aged between 12 and 16 by length of imprisonment term, 2007–08 to 2011–12

Imprisonment length Number
Less than 1 year 5
1 to less than 2 years 23
2 to less than 3 years 58
3 to less than 4 years 45
4 to less than 5 years 14
5 to less than 6 years 2
6 to less than 7 years 0
7 to less than 8 years 1

Due to data quality issues, imprisonment lengths for charges of sexual penetration of a child aged between 12 and 16 that were not the principal offence are not presented.[15]

As shown in Figure 9, the average length of imprisonment term imposed on people sentenced for sexual penetration of a child aged between 12 and 16 ranged from 2 years and 1 month in 2007–08 to 3 years and 1 month in 2009–10.

From 2007–08 to 2011–12, the majority of people who received a term of imprisonment for sexual penetration of a child aged between 12 and 16 were men (145 people or 98%). Over the five-year period, men received a longer average term of imprisonment (2 years and 7 months compared with 2 years and 2 months for the 3 women who received imprisonment).

Figure 9: The average length of imprisonment term imposed on people sentenced for sexual penetration of a child aged between 12 and 16, 2007–08 to 2011–12

Financial year Average length of imprisonment
2007–08 2 years, 1 month
2008–09 2 years, 5 months
2009–10 3 years, 1 month
2010–11 2 years, 7 months
2011–12 2 years, 9 months

Other offences finalised at the same hearing

Often people prosecuted for sexual penetration of a child aged between 12 and 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 sexual penetration of a child aged between 12 and 16.

Figure 10 shows the number of people sentenced for the principal offence of sexual penetration of a child aged between 12 and 16 by the total number of offences for which sentences were set. The number of sentenced offences per person ranged from 1 to 42, while the median was 3 offences. There were 91 people (26.5%) sentenced for the single offence of sexual penetration of a child aged between 12 and 16. The average number of offences per person sentenced for sexual penetration of a child aged between 12 and 16 was 4.42.

Figure 10: The number of people sentenced for the principal offence of sexual penetration of a child aged between 12 and 16 by the number of sentenced offences per person, 2007–08 to 2011–12

Number of offences Number of people
1 91
2 67
3 41
4 41
5 to 9 69
10 to 19 25
20 or more 9

While Figure 10 presents the number of sentenced offences for those sentenced for sexual penetration of a child aged between 12 and 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, 114 of the total 343 people (33.2%) also received sentences for indecent act with a child under 16. On average, they were sentenced for 2.82 counts of indecent act with a child under 16.

Table 3: The number and percentage of people sentenced for the principal offence of sexual penetration of a child aged between 12 and 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 Sexual penetration of a child aged under 16 343 100.0 2.39
2 Indecent act with a child under 16 114 33.2 2.82
3 Make/produce child pornography 21 6.1 1.81
4 Knowingly possess child pornography 21 6.1 1.00
5 Indecent assault 17 5.0 4.47
6 Attempted sexual penetration of a child age under 16 14 4.1 1.00
7 Sexual penetration of a child aged under 16 – under care, supervision or authority 9 2.6 1.78
8 Procure minor to make child pornography 6 1.7 4.17
9 Sexual penetration of a child under 12 6 1.7 3.67
10 Possess a drug of dependence 6 1.7 1.17
  People sentenced 343 100.0 4.42

Total effective sentence of imprisonment

There were 144 people given a total effective sentence of imprisonment.[16] Figure 11 shows the number of people sentenced to imprisonment for sexual penetration of a child aged between 12 and 16 from 2007–08 to 2011–12 by length of total effective sentence. The length of total effective sentences ranged from 8 months to 15 years and 7 months, while the median total effective length of imprisonment was 3 years and 6 months (meaning that half of the total effective sentence lengths were below 3 years and 6 months and half were above).

The most common total effective imprisonment length was 3 to less than 4 years (37 people).

Figure 11: The number of people sentenced to imprisonment for sexual penetration of a child aged between 12 and 16 by length of total effective imprisonment term, 2007–08 to 2011–12

Total effective imprisonment length Number of people
Less than 1 year 3
1 to less than 2 years 12
2 to less than 3 years 26
3 to less than 4 years 37
4 to less than 5 years 18
5 to less than 6 years 24
6 to less than 7 years 9
7 to less than 8 years 10
8 to less than 9 years 1
9 to less than 10 years 0
10 to less than 11 years 0
11 to less than 12 years 1
12 to less than 13 years 0
13 to less than 14 years 0
14 to less than 15 years 1
15 to less than 16 years 2

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 sexual penetration of a child aged between 12 and 16. Sentences and non-parole periods must be considered in this broader context.

Of the 144 people who were sentenced to imprisonment for sexual penetration of a child aged between 12 and 16, 141 were eligible to have a non-parole period fixed.[17] Of these people, 138 were given a non-parole period (98%).[18] Figure 12 shows the number of people sentenced to imprisonment for sexual penetration of a child aged between 12 and 16 from 2007–08 to 2011–12 by length of non-parole period. Non-parole periods ranged from 6 months to 12 years, while the median length of the non-parole period was 2 years (meaning that half of the non-parole periods were below 2 years and half were above).

The most common non-parole period imposed was 1 year to less than 2 years (42 people).

Figure 12: The number of people sentenced to imprisonment for sexual penetration of a child aged between 12 and 16 by length of non-parole period, 2007–08 to 2011–12

Non-parole period Number of people
Less than 1 year 15
1 to less than 2 years 42
2 to less than 3 years 34
3 to less than 4 years 24
4 to less than 5 years 14
5 to less than 6 years 4
6 to less than 7 years 1
7 to less than 8 years 1
8 to less than 9 years 1
9 to less than 10 years 0
10 to less than 11 years 0
11 to less than 12 years 1
12 to less than 13 years 1
No non-parole period 4

Total effective sentences of imprisonment and non-parole periods

Figure 13 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 3 years and 2 months in 2007–08 to 5 years in 2009–10. Over the same period, the average length of non-parole periods ranged from 1 year and 11 months in 2007–08 to 3 years in 2009–10.

Figure 13: The average total effective sentence and the average non-parole period imposed on people sentenced to imprisonment for sexual penetration of a child aged between 12 and 16, 2007–08 to 2011–12

Financial year Total effective sentence length Non-parole period
2007–08 3 years, 2 months 1 year, 11 months
2008–09 4 years, 2 months 2 years, 6 months
2009–10 5 years 3 years
2010–11 4 years, 6 months 2 years, 7 months
2011–12 4 years, 2 months 2 years, 6 months

Total effective sentence of imprisonment by non-parole period

While Figures 11 and 12 present the lengths of the total effective sentences and non-parole periods separately, Figure 14 combines the two methods of describing sentence lengths in the one diagram. It shows the total effective sentence and non-parole period for sexual penetration of a child aged between 12 and 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 14.

As shown, the most common combination of imprisonment length and non-parole period imposed was 2 years with a non-parole period of 1 year (20 people– as represented by the largest bubble on the chart) followed closely with 3 years’ imprisonment with a non-parole period of 1 year (19 people). The length of imprisonment ranged from 8 months with no non-parole period to 15 years and 7 months with a non-parole period of 11 years. The longest non-parole period involved a case with a slightly shorter imprisonment length (15 years and 4 months) but with a non-parole period of 12 years.

Figure 14: The number of people sentenced to imprisonment for sexual penetration of a child aged between 12 and 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
Less than 1 year No non-parole period 3
1 to less than 2 years Less than 1 year 9
1 to less than 2 years 1 to less than 2 years 2
2 to less than 3 years No non-parole period 1
2 to less than 3 years Less than 1 year 5
2 to less than 3 years 1 to less than 2 years 20
3 to less than 4 years Less than 1 year 1
3 to less than 4 years 1 to less than 2 years 19
3 to less than 4 years 2 to less than 3 years 16
4 to less than 5 years 1 to less than 2 years 1
4 to less than 5 years 2 to less than 3 years 13
4 to less than 5 years 3 to less than 4 years 4
5 to less than 6 years 2 to less than 3 years 5
5 to less than 6 years 3 to less than 4 years 16
5 to less than 6 years 4 to less than 5 years 3
6 to less than 7 years 3 to less than 4 years 3
6 to less than 7 years 4 to less than 5 years 6
7 to less than 8 years 3 to less than 4 years 1
7 to less than 8 years 4 to less than 5 years 5
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 1
11 to less than 12 years 8 to less than 9 years 1
14 to less than 15 years 7 to less than 8 years 1
15 to less than 16 years 11 to less than 12 years 1
15 to less than 16 years 12 to less than 13 years 1
Total number of people 142

Suspended sentences of imprisonment

There were 119 people given a suspended sentence of imprisonment as their total effective sentence. Of these, 85 people had their prison sentence wholly suspended and 34 received a partially suspended sentence of imprisonment. Figure 15 shows the number of people with a suspended sentence of imprisonment as their total effective sentence by the suspended sentence type and length of sentence. The green ‘bubbles’ to the left of the vertical axis show the lengths of the wholly suspended sentences, while the grey bubbles to the right of the vertical axis show the combination of total imprisonment length and the suspended period for those sentenced to a partially suspended sentence. The size of the bubble reflects the number of people who received either the wholly or the partially suspended prison term. Imprisonment lengths and suspended periods that end part way through a month are rounded down to the nearest complete month. For example, a wholly suspended sentence of 6 months and 12 days would be included as a sentence length of 6 months for the purposes of Figure 15.

Wholly suspended sentence lengths ranged from 1 month to 3 years. The most common wholly suspended sentence length was 1 year (18 people– as represented by the largest green bubble on the chart).

Partially suspended sentences ranged from 1 year’s imprisonment with 6 months suspended to 3 years’ imprisonment with 2 years and 11 months suspended. The most common partially suspended sentence combinations was 1 year’s imprisonment with 9 months suspended and 1 year and 6 months’ imprisonment with 1 year suspended (3 people each– as represented by the largest grey bubbles on the chart).

Figure 15: The number of people given a wholly or partially suspended sentence of imprisonment for sexual penetration of a child aged between 12 and 16 by sentence type and length, 2007–08 to 2011–12

Wholly suspended sentences
Wholly suspended sentence length (months) No. of people
1 1
3 1
6 6
9 4
10 1
12 18
14 3
15 5
16 1
18 14
24 14
26 1
29 1
30 6
33 1
36 8
Partially suspended sentences
Imprisonment sentence length (months) Suspended period (months) No. of people
12 6 1
12 7 1
12 9 3
12 10 1
14 8 1
14 12 1
15 9 2
18 10 1
18 12 3
20 12 1
24 12 1
24 18 2
24 21 1
26 16 1
27 18 1
28 20 1
28 25 1
30 15 1
30 21 1
30 22 1
30 24 1
32 20 1
36 15 1
36 18 1
36 26 1
36 28 1
36 33 1
36 35 1

Community-based orders

There were 46 people given a community-based order as their total effective sentence.

The lengths of community-based orders for sexual penetration of a child aged between 12 and 16 ranged from 1 year to 2 years, while the most common length was 2 years (22 people).

Figure 16: The number of people sentenced to a community-based order for sexual penetration of a child aged between 12 and 16 by length of order imposed, 2007–08 to 2011–12

Sentence length No. of people
One year 12
One year and five months 1
One year and six months 11
Two years 22

Community correction orders

Community correction orders were introduced in early 2012 to replace the existing community-based orders and intensive correction orders. A feature of community correction orders is that the sentence length on the order can be as high as the statutory maximum of the offence being sentenced.

From 2007–08 to 2011–12, 3 people were given a community correction order for the principal offence of sexual penetration of a child aged between 12 and 16. The lengths of community correction orders ranged from 1 year and 6 months to 2 years. The most common length was 1 year and 6 months, which was given to 2 of the 3 people to receive a community correction order.

Fines

This analysis includes all fines that were imposed for cases where sexual penetration of a child aged between 12 and 16 was the principal offence. Fines were imposed on 12 people.

The fine amount imposed ranged from $100 to $5,000, with a median of $450 (meaning that half of the values fell below $450 and half of the values were above $450).

The average fine amount was $827. Fines were only imposed against men.

Figure 17: The number of people who received a fine for sexual penetration of a child aged between 12 and 16 by fine amount, 2007–08 to 2011–12

Fine amount No. of people
$0 to $99 0
$100 to $199 3
$200 to $299 1
$300 to $399 1
$400 to $499 1
$500 to $599 2
$600 to $699 0
$700 to $799 0
$800 to $899 2
$900 or more 2

Appeals

A sentence imposed on a person may be appealed[19] 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 2012, 5 people sentenced for a principal offence of sexual penetration of a child aged between 12 and 16 in the period from 2007–08 to 2011–12 successfully appealed their convictions. Of the 5 people, 1 was acquitted and the remainder were granted a retrial. Thus, the number of people sentenced from 2007–08 to 2011–12 for a principal offence of sexual penetration of a child aged between 12 and 16 is reduced to 338 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 5 people. Four of these appeals were made by the person sentenced and resulted in a sentence reduction. The longest total effective imprisonment term to be reduced was a sentence of 5 years and 6 months’ imprisonment with a non-parole period of 3 years and 10 months, which decreased to 4 years and 6 months’ imprisonment with a non-parole period of 3 years on appeal.

One successful appeal was made by the Crown from 2007–08 to 201–12. This case initially had a total effective sentence of 4 years and 3 months’ imprisonment with a non-parole period of 2 years and 6 months, increasing on appeal to 5 years and 9 months’ imprisonment with a non-parole period of 3 years.

The principal sentence changed for 3 people as a result of a successful appeal. The longest principal sentence of imprisonment reduced was 3 years and 6 months, which decreased to 2 years and 6 months.

With the original sentencing data revised to incorporate appeal outcomes, the adjusted longest total effective imprisonment term was unchanged at 15 years and 7 months’ imprisonment with a non-parole period of 11 years and the adjusted longest principal sentence of imprisonment was unchanged at 7 years.

Summary

Between 2007–08 and 2011–12, 343 people were sentenced for sexual penetration of a child aged between 12 and 16 in the higher courts. Over this period, the majority of people sentenced were men (97%), while 55% were aged between 20 and 29.

Around 4 in 10 people sentenced for sexual penetration of a child aged between 12 and 16 received a period of imprisonment (43%), while 24% received a wholly suspended sentence of imprisonment and 13% received a community-based order.

Men were more likely than women to be sentenced to a period of imprisonment or a community-based order. Conversely, women were more likely to be sentenced to a partially suspended sentence of imprisonment, a community correction order or an adjourned undertaking without conviction.

Imprisonment was most common for people aged 40 years or older, while wholly suspended sentences of imprisonment and community-based orders were most common for people aged younger than 25 years.

Each of the 343 people was sentenced for an average of 4.42 offences, including 2.39 offences of sexual penetration of a child under 16. The most common offence finalised in conjunction with sexual penetration of a child aged between 12 and 16 was indecent act with a child under 16 (33.2% of all cases). The number and range of offences for which people with a principal offence of sexual penetration of a child aged between 12 and 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 3 years and 6 months, while the median principal imprisonment length was 2 years and 6 months.

Total effective imprisonment lengths ranged from 8 months with no non-parole period to 15 years and 7 months with a non-parole period of 11 years. The most common sentence of imprisonment was 2 years with a non-parole period of 1 year.

The most common wholly suspended sentence length was 1 year.

A small number of people were able to successfully appeal against their sentences. 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 is 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. 114, which describes sentencing trends for sexual penetration of a child aged between 10 and 16 from 2005–06 to 2009–10. The offence of sexual penetration of a child aged between 10 and 16 was amended in the Crimes Act 1958 (Vic) on 17 March 2010 and changed to sexual penetration of a child aged between 12 and 16. This edition of the Snapshot includes both the offences of sexual penetration of a child between 10 and 16 and between 12 and 16 that were sentenced in the County Court of Victoria from 2007–08 to 2011–12.

[2] The information source for sentencing outcomes for sexual penetration of a child aged between 12 and 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.

The sentencing database used for this analysis was compiled using conviction returns. Due to incomplete offence information regarding sexual penetration offences on the conviction returns, a further classification exercise was undertaken to determine the specific offence types. This involved reading the sentencing remarks of the particular cases and determining whether the offence fell under section 45(2)(a), 45(2)(b) or 45(2)(c) of the Crimes Act 1958 (Vic).

In total, there were 523 people sentenced for the principal proven offence of sexual penetration of a child over the five-year period 2007–08 to 2011–12. Sentencing remarks were located for 458 offences. There were 6 cases of the 458 that were excluded from analysis because an examination of the sentencing remarks found that they consisted of offences that were inadequately described or out of scope for these Snapshots. The remaining 65 cases for which remarks could not be located were also excluded because the offence could not be categorised adequately.

[4] Sexual penetration includes oral, anal and vaginal penetration (Crimes Act 1958 (Vic) s 35).

[5] Crimes Act 1958 (Vic) s 45(1) and 45(2)(c). On 17 March 2010, section 45(2) was amended so that the age range of victims for this offence was increased from 10–16 years to 12–16 years. The new age range applies to offences committed on or after 17 March 2010. The cases discussed in this Snapshot include the version of the offence both before and after 17 March 2010. There was 32 cases in this Snapshot that was sentenced under the new version of the legislation and an additional 3 cases where the date of offending was ambiguous or fell under both versions of the legislation.

[6] Crimes Act 1958 (Vic) s 45(2)(c). Separate penalties apply if the child is under 10 or if the child is under the care, supervision or authority of the accused (see Sentencing Snapshot nos 149 and 151).

[7] 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 (external link opens in a new window).

[8] 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.

[9] Sufficient information was not available to determine the number and type of non-principal sexual penetration offences, under sections 45(2)(a), 45(2)(b), and 45(2)(c), that were sentenced from 2007–08 to 2011–12.

[10] Immediate custodial sentence includes imprisonment, partially suspended sentence, residential treatment order and youth justice centre order.

[11] Sexual penetration of a child aged between 12 and 16 is considered a ‘serious offence’ for the purposes of section 27(2B) of the Sentencing Act 1991 (Vic). ‘Serious offences’ committed between 1 November 2006 and 1 May 2011, could be given a wholly suspended sentence only if the court was satisfied that it was appropriate because of the existence of exceptional circumstances and that it was in the interests of justice. Serious offences committed on or after 1 May 2011 cannot be given a wholly suspended sentence under any circumstances. However, some offences of sexual penetration may have been committed prior to 1 November 2006 and may still be eligible to receive a wholly suspended sentence without any exceptional circumstances.

[12] Age is at the time of sentencing.

[13] 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.

[14] Refer to endnote 8.

[15] Refer to endnote 9.

[16] Of the 148 people who were given a principal sentence of imprisonment, 144 were also given a total effective sentence of imprisonment. There were 4 people who were given imprisonment as the principal sentence for sexual penetration of a child aged between 12 and 16 and a partially suspended sentence as a total effective sentence.

[17] A total of 3 people were not eligible for parole because they were given a total effective sentence length of less than 1 year.

[18] Two people were not given a non-parole period relating to that case alone, but a non-parole period that also related to other cases. It is not possible to determine the length of the non-parole period that relates to this case. The non-parole period for these people is excluded from the analysis. A non-parole period was not set for one person who was eligible for a non-parole period.

[19] 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 site opens in a new window).