Sentencing Trends for Affray in the Higher Courts of Victoria 2008-09 to 2012-13

Sentencing Snapshot 166
Date of Publication: 
29 August 2014

Sentencing Snapshot no. 166 describes sentencing outcomes for the offence of affray in the County and Supreme Courts of Victoria between 2008–09 and 2012–13.

The most recent Sentencing Snapshot for this offence is Snapshot no. 191.

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, 2014

Introduction

This Sentencing Snapshot describes sentencing outcomes[1] for the offence of affray and details the age and gender[2] of people sentenced for this offence in the County and Supreme Courts of Victoria between 2008–09 and 2012–13.[3] Except where otherwise noted, the data represent sentences imposed at first instance.

A person who is involved in unlawful fighting, violence, or a display of force that might cause fear to an innocent member of the public is guilty of the offence of affray. This offence does not require a member of the public actually to be present, but rather that the fighting, violence, or display of force was of a magnitude that a person, if present, would have been afraid.  Affray is an indictable offence that carries a maximum penalty of 5 years’ imprisonment and/or a fine of 600 penalty units.  Indictable offences are more serious offences triable before a judge and jury in the County or Supreme Court. As at 1 July 2007, affray can also be tried summarily by the Magistrates’ Court if the Magistrates’ Court considers it appropriate and the defendant consents.

Affray was the principal offence[4] in 1.4% of cases sentenced in the higher courts between 2008–09 and 2012–13.

People Sentenced

From 2008–09 to 2012–13, 134 people were sentenced in the higher courts for a principal offence of affray. These people are the focus of this Snapshot. However, an additional 157 people were sentenced in cases that involved affray but where some other offence was the principal offence. In total, 291 people were sentenced in the higher courts for 295 charges of affray.

Figure 1 shows the number of people sentenced for the principal offence of affray by gender. Over the five years depicted, the majority of those sentenced were men (98.5% or 132 of 134 people), including 9 of the 10 people sentenced in 2012–13.

Figure 1: The number of people sentenced for affray by gender, 2008–09 to 2012–13

  Gender    
Financial year Male Female Total persons
2008–09 42 0 42
2009–10 29 1 30
2010–11 31 0 31
2011–12 21 0 21
2012–13 9 1 10
Total 132 2 134

Sentence Types and Trends

Figure 2 shows the total number of people sentenced for affray 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.[5]  Over the five-year period, 18% of people were given an immediate custodial sentence.  This peaked at 20% (2 of 10) in 2012–13 after a low of 14% (3 of 21) in 2011–12.

Figure 2: The number of people sentenced for affray and the number who received an immediate custodial sentence, 2008–09 to 2012–13

  Sentence type    
Financial year Immediate custodial sentence Non-custodial sentence People sentenced
2008–09 8 34 42
2009–10 5 25 30
2010–11 6 25 31
2011–12 3 18 21
2012–13 2 8 10
Total 24 110 134

Table 1 shows the number of people sentenced for affray from 2008–09 to 2012–13 by the types of sentences imposed.

Over the five-year period, one-quarter of the people sentenced for affray received a wholly suspended sentence of imprisonment (25% or 34 of 134 people), while 25% received a community-based order (which was only available to January 2012), 13% received a fine, and 10% received a period of imprisonment.

The number and percentage of people receiving a wholly suspended sentence of imprisonment were lowest during 2012–13 (2 of 10 people or 20%). The number of people receiving a wholly suspended sentence of imprisonment was highest in 2008–09 (11 people), while the percentage was highest in 2010–11 (9 of 31 people or 29%).

To January 2012, the number and percentage of people receiving a community-based order were lowest during 2011–12 (2 of 21 people or 10%), while the number and percentage were highest during 2009–10 (12 of 30 people or 40%).

The number of people receiving a fine was lowest during 2010–11 and 2012–13 (1 person) and highest in 2008–09 (8 people). The percentage of people receiving a fine was lowest in 2010–11 (1 of 31 people or 3%) and highest in 2011–12 (5 of 21 people or 24%).

The number of people receiving a sentence of imprisonment was lowest during 2009–10 and 2012–13 (1 person), while the percentage was lowest in 2009–10 (1 of 30 people or 3%). The number and percentage of people receiving a sentence of imprisonment were highest in 2008–09 (7 of 42 people or 17%).

Table 1: The number and percentage of people sentenced for affray by sentence type, 2008–09 to 2012–13

Sentence type 2008–09 2009–10 2010–11 2011–12 2012–13 Total
Wholly suspended sentence 11 (26%) 7 (23%) 9 (29%) 5 (24%) 2 (20%) 34 (25%)
Community-based order 8 (19%) 12 (40%) 11 (35%) 2 (10%) 0 (–) 33 (25%)
Fine 8 (19%) 3 (10%) 1 (3%) 5 (24%) 1 (10%) 18 (13%)
Imprisonment 7 (17%) 1 (3%) 2 (6%) 2 (10%) 1 (10%) 13 (10%)
Intensive correction order 7 (17%) 2 (7%) 0 (–) 2 (10%) 0 (–) 11 (8%)
Partially suspended sentence 0 (–) 4 (13%) 4 (13%) 1 (5%) 0 (–) 9 (7%)
Community correction order 0 (–) 0 (–) 0 (–) 2 (10%) 5 (50%) 7 (5%)
Adjourned undertaking with conviction 0 (–) 0 (–) 1 (3%) 2 (10%) 0 (–) 3 (2%)
Adjourned undertaking without conviction 0 (–) 1 (3%) 2 (6%) 0 (–) 0 (–) 3 (2%)
Mix (community-based order and fine) 0 (–) 0 (–) 1 (3%) 0 (–) 0 (–) 1 (<1%)
Mix (imprisonment and community-based order) 1 (2%) 0 (–) 0 (–) 0 (–) 0 (–) 1 (<1%)
Youth justice centre order 0 (–) 0 (–) 0 (–) 0 (–) 1 (10%) 1 (< 1%)
People sentenced 42 30 31 21 10 134

Age and Gender of People Sentenced

Figure 3 shows the gender of people sentenced for affray grouped by age[6] between 2008–09 and 2012–13.  The average (mean) age of people sentenced for affray was 24 years and 11 months.  There were no juveniles sentenced over this period.[7]

Figure 3: The number of people sentenced for affray by gender and age, 2008–09 to 2012–13

  Gender
Age category (years) Male Female
18 to 19 9 0
20 to 24 72 1
25 to 29 32 1
30 to 34 7 0
35 to 39 5 0
40 or older 7 0
Total 132 2

Sentence Types by Gender

Table 2 shows the types of sentences imposed for affray grouped by gender. The 2 women sentenced for the principal offence of affray between 2008–09 and 2012–13 were given a community-based order and a fine (50% each). Conversely, 24% of men received a community-based order and 13% of men received a fine.

Table 2: The number and percentage of people sentenced for affray by sentence type and gender, 2008–09 to 2012–13

Sentence type Male Female
Wholly suspended sentence 34 (26%) 0 (–)
Community-based order 32 (24%) 1 (50%)
Fine 17 (13%) 1 (50%)
Imprisonment 13 (10%) 0 (–)
Intensive correction order 11 (8%) 0 (–)
Partially suspended sentence 9 (7%) 0 (–)
Community correction order 7 (5%) 0 (–)
Adjourned undertaking without conviction 3 (2%) 0 (–)
Adjourned undertaking with conviction 3 (2%) 0 (–)
Youth justice centre order 1 (<1%) 0 (–)
Mix (imprisonment and community-based order) 1 (<1%) 0 (–)
Mix (community-based order and fine) 1 (<1%) 0 (–)
People sentenced 132 2

Sentence Types by Age

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

Wholly Suspended Sentences of Imprisonment

As shown in Figure 4, wholly suspended sentences of imprisonment were equally distributed among the age groups.

Figure 4: The percentage of people who received a wholly suspended sentence of imprisonment for affray by age group, 2008–09 to 2012–13

Age group (years) Percentage of age group
Younger than 25 (n = 82) 25.6
25 to 29 (n = 33) 24.2
30 or older (n = 19) 26.3

Community-Based Orders

As shown in Figure 5, community-based orders were most likely to be given to people aged under 25 years (33% or 27 of the 82 people in this age group).

Conversely, community-based orders were least common for those aged 25–29 years (9% or 3 of the 33 people in this age group).

Figure 5: The percentage of people who received a community-based order for affray by age group, 2008–09 to 2012–13

Age group (years) Percentage of age group
Younger than 25 (n = 82) 32.9
25 to 29 (n = 33) 9.1
30 or older (n = 19) 15.8

Fines

As shown in Figure 6, fines were most likely to be given to people aged 25–29 years (27% or 9 of the 33 people in this age group).

Conversely, fines were least common for those aged under 25 years (7% or 6 of the 82 people in this age group).

Figure 6: The percentage of people who received a fine for affray by age group, 2008–09 to 2012–13

Age group (years) Percentage of age group
Younger than 25 (n = 82) 7.3
25 to 29 (n = 33) 27.3
30 or older (n = 19) 15.8

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.[8]

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 affray must be considered in this broader context. The following sections analyse the use of imprisonment for the offence of affray from 2008–09 to 2012–13.

Principal Sentence of Imprisonment

A total of 14 people received a principal sentence of imprisonment for affray between 2008–09 and 2012–13. All these people were men.

Figure 7 shows these people by length of imprisonment term.  Imprisonment terms ranged from 1 month to 1 year, 8 months, and 12 days, while the median length of imprisonment was 1 year.

The most common range of imprisonment length imposed was 1 year to less than 2 years (8 people).

Expanding the analysis from principal sentences of imprisonment to all charges that received imprisonment, there were 79 charges of affray sentenced to imprisonment between 2008–09 and 2012–13. Imprisonment lengths for affray ranged from 1 month to 3 years, while the median was 10 months and the most common range of imprisonment length was less than 1 year (40 people).

Due to small numbers of people sentenced to imprisonment for affray in some years (for example, 1 in 2012–13), data on average imprisonment lengths by year and by gender are not presented.

Figure 7: The number of people sentenced to imprisonment for affray by length of imprisonment term, 2008–09 to 2012–13

Imprisonment length Number
Less than 1 year 6
1 to less than 2 years 8

Other Offences Finalised at the Same Hearing

Often people prosecuted for affray 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 affray.

Figure 8 shows the number of people sentenced for the principal offence of affray by the total number of offences for which sentences were set.  The number of sentenced offences per person ranged from 1 to 10, while the median was 1 offence.  There were 102 people (76.1%) sentenced for the single offence of affray.  The average (mean) number of offences per person sentenced for affray was 1.56.

Figure 8: The number of people sentenced for the principal offence of affray by the number of sentenced offences per person, 2008–09 to 2012–13

Number of proven offences Number of people
1 102
2 14
3 9
4 3
5 to 9 5
10 1

While Figure 8 presents the number of sentenced offences for those sentenced for affray, 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, 11 of the total 134 people (8.2%) also received sentences for common law assault.  On average, they were sentenced for 1.27 counts of common law assault.

Table 3: The number and percentage of people sentenced for the principal offence of affray by the most common offences that were sentenced and the average number of those offences that were sentenced, 2008–09 to 2012–13

  Offence Number % Average
1 Affray 134 100.0 1.00
2 Common law assault 11 8.2 1.27
3 Causing injury intentionally 7 5.2 1.71
4 Causing injury recklessly 7 5.2 1.00
5 Causing serious injury recklessly 6 4.5 1.67
6 Intentionally damage/destroy property 3 2.2 2.33
7 Fail to answer bail 3 2.2 1.67
8 Aggravated burglary 3 2.2 1.00
9 Possess a drug of dependence 3 2.2 1.00
10 Carry unregistered general category handgun 2 1.5 2.00
  People sentenced 134 100.0 1.56

Total Effective Sentence of Imprisonment

There were 14 people given a total effective sentence of imprisonment.[9]  Figure 9 shows the number of people sentenced to imprisonment for affray between 2008–09 and 2012–13 by length of total effective sentence.  The length of total effective sentences ranged from 1 month to 2 years, while the median total effective length of imprisonment was 1 year and 3 months (meaning that half of the total effective sentence lengths were below 1 year and 3 months and half were above).

The most common range of total effective imprisonment length was 1 year to less than 2 years (8 people).

Figure 9: The number of people sentenced to imprisonment for affray by length of total effective imprisonment term, 2008–09 to 2012–13

Total effective imprisonment length Number of people
Less than 1 year 4
1 to less than 2 years 8
2 to less than 3 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 affray.  Sentences and non-parole periods must be considered in this broader context.

Of the 14 people who were sentenced to imprisonment for affray, 10 were eligible to have a non-parole period fixed.[10]  Of these people, 8 were given a non-parole period (80%).  Figure 10 shows the number of people sentenced to imprisonment for affray between 2008–09 and 2012–13 by length of non-parole period.  Non-parole periods ranged from 4 months to 1 year and 6 months, while the median length of the non-parole period was 8 months and 15 days (meaning that half of the non-parole periods were below 8 months and 15 days and half were above). 

The most common range of non-parole period imposed was less than 1 year (5 people).

Figure 10: The number of people sentenced to imprisonment for affray by length of non-parole period, 2008–09 to 2012–13

Non-parole period length Number of people
Less than 1 year 5
1 to less than 2 years 3
No non-parole period 6

Total Effective Sentences of Imprisonment and Non-Parole Periods

Due to small numbers of people sentenced to imprisonment for affray in some years (for example, 1 in 2012–13), data on average imprisonment lengths by year and by gender are not presented.

Total Effective Sentence of Imprisonment by Non-Parole Period

While Figures 9 and 10 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 affray 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 combinations of imprisonment length and non-parole period imposed was less than 1 year with no non-parole period and 1 year with a non-parole period of less than 1 year (4 people each – as represented by the largest bubbles on the chart).  The length of imprisonment ranged from 1 month with no non-parole period to 2 years with a non-parole period of 1 year and 6 months.

Figure 11: The number of people sentenced to imprisonment for affray by the total effective sentence and the non-parole period imposed, 2008–09 to 2012–13

Total effective sentence length category Non-parole period category Total
Less than 1 year No non-parole period 4
1 to less than 2 years No non-parole period 2
1 to less than 2 years Less than 1 year 4
1 to less than 2 years 1 to less than 2 years 2
2 to less than 3 years Less than 1 year 1
2 to less than 3 years 1 to less than 2 years 1
People sentenced   14

Note: No NPP refers to no non-parole period.

Suspended Sentences of Imprisonment

There were 43 people given a suspended sentence of imprisonment as their total effective sentence.  Of these, 34 people had their prison sentence wholly suspended and 9 received a partially suspended sentence of imprisonment.  Figure 12 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 12.

Wholly suspended sentence lengths ranged from 2 months to 2 years and 6 months. The most common wholly suspended sentence length was 6 months (12 people – as represented by the largest green bubble on the chart).

Partially suspended sentence combinations were evenly distributed (1 person each – as represented by the grey bubbles on the chart).

Figure 12: The number of people given a wholly or partially suspended sentence of imprisonment for affray by sentence type and length, 2008–09 to 2012–13

Wholly suspended sentence length (months) Number of people
2 1
3 2
4 2
5 1
6 12
8 1
9 1
10 1
12 4
14 1
15 3
18 2
24 2
30 1
People sentenced 34

 

Imprisonment sentence length (months) Suspended period (months) Number of people
8 6 1
12 8 1
18 8 1
18 16 1
20 14 1
24 21 1
30 11 1
30 18 1
36 33 1
People sentenced   9

Community-Based Orders

There were 34 people given a community-based order as their total effective sentence.

As Figure 13 shows, the length of community-based orders for affray ranged from 6 months to 2 years, while the most common length was one year (15 people).

Figure 13: The number of people sentenced to a community-based order for affray by length of order imposed, 2008–09 to 2012–13

Length of order Number of people (n = 34)
6 months 1
8 months 1
1 year 15
1 year and 4 months 1
1 year and 6 months 5
2 years 11

Community Correction Orders

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

From 2008–09 to 2012–13, 7 people sentenced for the principal offence of affray were given a community correction order as their total effective sentence. The length of community correction orders ranged from 1 year to 2 years. The most commonly used community correction order length was 1 year (given to 3 people or 43%).

Intensive Correction Orders

There were 11 people given an intensive correction order as their total effective sentence.

As Figure 14 shows, the length of intensive correction orders for affray ranged from 4 months to 1 year, while the most common length was 6 months (4 people).

Figure 14: The number of people sentenced to an intensive correction order for affray by length of order imposed, 2008–09 to 2012–13

Length of order Number of people (n = 11)
4 months 2
6 months 4
8 months 1
9 months 3
1 year 1

Fines

This analysis includes all fines that were imposed for cases where affray was the principal offence.  Fines were imposed on 32 people, of whom 31 were men.

As Figure 15 shows, the fine amount imposed ranged from $250 to $5,000, with a median of $1,500 (meaning that half of the values fell below $1,500 and half of the values were above $1,500).

The average (mean) fine amount was $1,758. 

Figure 15: The number of people who received a fine for affray by fine amount, 2008–09 to 2012–13

Fine amount Number of people (n = 32)
$1–$499 1
$500–$999 2
$1,000–$1,499 11
$1,500–$1,999 5
$2,000–$2,499 7
$2,500–$2,999 1
$3,000+ 5

Appeals

A sentence imposed on a person may be appealed[11] 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.

To June 2013, there were no successful appeals by either the people sentenced or the Crown for a principal offence of affray sentenced in the period 2008–09 to 2012–13.

Summary

Between 2008–09 and 2012–13, 134 people were sentenced for affray in the higher courts.  Over this period, the majority of people sentenced were men (99%), while 86% were aged between 18 and 30 years.

Half of the people sentenced for affray received a wholly suspended sentence of imprisonment or a community-based order (25% each), while 13% received a fine and 10% received a period of imprisonment.

Wholly suspended sentences of imprisonment were equally distributed among the age groups, community-based orders were more common for those younger than 25 years of age, and fines were most common for those aged between 25 and 29 years.

Each of the 134 people was sentenced for an average (mean) of 1.56 offences, including 1 offence of affray.  The most common offence finalised in conjunction with affray was common law assault (8.2% of all cases).  The number and range of offences for which people with a principal offence of affray 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 1 year and 3 months, while the median principal imprisonment length was 1 year.

Total effective imprisonment lengths ranged from 1 month with no non-parole period to 2 years with a non-parole period of 1 year and 6 months.  The most common sentence of imprisonment was 1 year with a non-parole period of less than 1 year.

The most common wholly suspended sentence length was 6 months.

There were no appeals against sentences imposed for the principal offence of affray between 2008–09 and 2012–13.

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. 135, which describes sentencing trends for affray between 2006–07 and 2010–11.

[2] The information source for sentencing outcomes for affray 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] 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.

[5] Immediate custodial sentence includes imprisonment, partially suspended sentence, youth justice centre order, and mix (imprisonment and community-based order).

[6] Age is at the time of sentencing.

[7] 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.

[8] Refer to endnote 4.

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

[10] A total of 4 people were not eligible for parole because they were given a total effective sentence length of less than one year.

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