Sentencing Trends for Indecent Act with a Child under 16 in the Higher Courts of Victoria 2009-10 to 2013-14

Sentencing Snapshot 178
Date of Publication: 
26 June 2015

Sentencing Snapshot no. 178 describes sentencing outcomes for the offence of indecent act with a child under 16 in the County Court of Victoria between 2009–10 and 2013–14.

The most recent Sentencing Snapshot for this offence is Snapshot no. 233.

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, 2015

Introduction

This Sentencing Snapshot describes sentencing outcomes[1] for the offence of indecent act with a child under 16 in the County Court of Victoria between 2009–10 and 2013–14.[2] Adjustments made by the Court of Appeal to sentence or conviction as at June 2014 have been incorporated into the data in this Snapshot.

Detailed data on indecent act with a child under 16 and other offences are available on SACStat – Higher Courts.

A person who is involved in any act in indecent circumstances, with or in the presence of a child under 16, is guilty of the offence of committing an indecent act with a child under the age of 16.

Committing an indecent act with a child under the age of 16 is an indictable offence that carries a maximum penalty of 10 years’ imprisonment[3] and/or a fine of 1,200 penalty units.[4] Indictable offences are more serious offences triable before a judge and jury in the County or Supreme Court. Committing an indecent act with a child under 16 can also be tried summarily by the Magistrates’ Court if the Magistrates’ Court considers it appropriate and the defendant consents.

Indecent act with a child under 16 was the principal offence[5] in 1.7% of cases sentenced in the higher courts between 2009–10 and 2013–14.

People sentenced

From 2009–10 to 2013–14, 170 people were sentenced in the higher courts for a principal offence of indecent act with a child under 16. 

Figure 1 shows the number of people sentenced for the principal offence of indecent act with a child under 16 by financial year. There were 36 people sentenced for this offence in 2013–14, up by 3 people from the previous year.  The number of people sentenced was highest in 2010–11 (40 people).

Figure 1: The number of people sentenced for indecent act with a child under 16 by financial year, 2009–10 to 2013–14

Financial year Total
2009-10 29
2010-11 40
2011-12 32
2012-13 33
2013-14 36
Total 170

Sentence types and trends

Figure 2 shows the total number of people sentenced for indecent act with a child under 16 and the number that 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.[6]  Over the five-year period, 65% of people were given an immediate custodial sentence.  This peaked at 83% (24 of 29) in 2009–10 before decreasing to 50% (18 of 36) in 2013–14.

Figure 2: The number of people sentenced for indecent act with a child under 16 and the number that received an immediate custodial sentence, 2009–10 to 2013–14

Financial year Custodial Non-Custodial Total
2009-10 24 5 29
2010-11 29 11 40
2011-12 19 13 32
2012-13 21 12 33
2013-14 18 18 36
Total 111 59 170

Table 1 shows the number of people sentenced for indecent act with a child under 16 from 2009–10 to 2013–14 by the types of sentences imposed.

Over the five-year period, the majority of the people sentenced for indecent act with a child under 16 received a period of imprisonment (52% or 89 of 170 people), while 15% received a community correction order, 12% received a wholly suspended sentence of imprisonment, and 12% received a partially suspended sentence of imprisonment.

The number and percentage of people receiving imprisonment for indecent act with a child under 16 were lowest during 2013–14 (14 of 36 people or 39%). The number of people receiving imprisonment was highest during 2010–11 (22 people) while the percentage was highest during 2009–10 (72%).

The number and percentage of people given a community correction order were lowest during 2011–12 (5 of 32 people or 16%) and highest during 2013–14 (14 of 36 people or 39%).

Table 1: The number and percentage of people sentenced for indecent act with a child under 16 by sentence type, 2009–10 to 2013–14

Sentence type 2009–10 2010–11 2011–12 2012–13 2013–14 Total
Imprisonment 21 (72%) 22 (55%) 15 (47%) 17 (52%) 14 (39%) 89 (52%)
Community correction order 0 (–) 0 (–) 5 (16%) 6 (18%) 14 (39%) 25 (15%)
Wholly suspended sentence 1 (3%) 6 (15%) 8 (25%) 4 (12%) 2 (6%) 21 (12%)
Partially suspended sentence 3 (10%) 6 (15%) 4 (13%) 3 (9%) 4 (11%) 20 (12%)
Community-based order 1 (3%) 3 (8%) 0 (–) 0 (–) 0 (–) 4 (2%)
Non-custodial supervision order 2 (7%) 0 (–) 0 (–) 0 (–) 1 (3%) 3 (2%)
Adjourned undertaking without conviction 1 (3%) 1 (3%) 0 (–) 1 (3%) 0 (–) 3 (2%)
Adjourned undertaking with conviction 0 (–) 1 (3%) 0 (–) 1 (3%) 0 (–) 2 (1%)
Unconditional release 0 (–) 0 (–) 0 (–) 0 (–) 1 (3%) 1 (<1%)
Mix (imprisonment and community-based order) 0 (–) 1 (3%) 0 (–) 0 (–) 0 (–) 1 (<1%)
Aggregate imprisonment 0 (–) 0 (–) 0 (–) 1 (3%) 0 (–) 1 (<1%)
People sentenced 29 40 32 33 36 170

Age and gender of people sentenced

Data on the age and gender of people sentenced for indecent act with a child under 16 are available on SACStat – Higher Courts.

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.[7]

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 indecent act with a child under 16 must be considered in this broader context. The following sections analyse the use of imprisonment for the offence of indecent act with a child under 16 from 2009–10 to 2013–14.

Principal sentence of imprisonment

A total of 90 people received a principal sentence of imprisonment for indecent act with a child under 16 between 2009–10 and 2013–14.

Figure 3 shows these people by the length of their imprisonment term.[8]  Imprisonment terms ranged from 8 days to 5 years, while the median length of imprisonment was 1 year and 11 months (meaning that half of the imprisonment terms were shorter than 1 year and 11 months and half were longer).

The most common range of imprisonment length imposed was 1 year to less than 2 years (35 people).

Figure 3: The number of people sentenced to imprisonment for indecent act with a child under 16 by length of imprisonment term, 2009–10 to 2013–14

Imprisonment length Number of people
Less than 1 year 10
1 to less than 2 years 36
2 to less than 3 years 30
3 to less than 4 years 10
4 to less than 5 years 3
5 to less than 6 years 1
People sentenced 90

As shown in Figure 4, the average length of imprisonment term imposed on people sentenced for indecent act with a child under 16 ranged from 1 year and 9 months in 2010–11, 2011–12, and 2013–14 to 2 years and 1 month in 2009–10.

Figure 4: The average length of imprisonment term imposed on people sentenced for indecent act with a child under 16, 2009–10 to 2013–14

Financial year Average length of imprisonment term
2009-10 (n= 21) 2 years, 1 month
2010-11 (n= 23) 1 year, 9 months
2011-12 (n= 15) 1 year, 9 months
2012-13 (n= 17) 1 year, 10 months
2013-14 (n= 14) 1 year, 9 months

Other offences finalised at the same hearing

Often people prosecuted for indecent act with 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 indecent act with a child under 16.

Figure 5 shows the number of people sentenced for the principal offence of indecent act with 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 61, while the median was 3 offences.  There were 30 people (17.6%) sentenced for the single offence of indecent act with a child under 16.  The average number of offences per person sentenced for indecent act with a child under 16 was 4.30.

Figure 5: The number of people sentenced for the principal offence of indecent act with a child under 16 by the number of sentenced offences per person, 2009–10 to 2013–14

Number of offences Number of people
1 30
2 40
3 32
4 19
5-9 37
10-19 11
20-49 0
50+ 1
Total 170

While Figure 5 presents the number of sentenced offences for people sentenced for indecent act with a child under 16, Table 2 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, 14 of the total 170 people (8.2%) also received sentences for sexual penetration with a child aged 12 to 16.  On average, they were sentenced for 2.29 counts of sexual penetration with a child aged 12 to 16.

Table 2: The number and percentage of people sentenced for the principal offence of indecent act with a child under 16 by the most common offences sentenced and the average number of those offences sentenced, 2009–10 to 2013–14

Offence No. of cases % of cases Average no. of proven offences per case
1. Indecent act with a child under 16 170 100.0 3.22
2. Sexual penetration with a child aged 12 to 16 14 8.2 2.29
3. Indecent assault 13 7.6 2.31
4. Knowingly possess child pornography 10 5.9 1.00
5. Make or produce child pornography 9 5.3 2.89
6. Assault 5 2.9 1.20
7. Sexual penetration with a child aged under 12 3 1.8 2.33
8. Fail to comply with reporting obligations 3 1.8 2.00
9. Procure a minor for making/producing child pornography 3 1.8 1.67
10. False imprisonment 3 1.8 1.33
People sentenced 170 100.0 4.30

Total effective sentence of imprisonment

There were 90 people given a total effective sentence of imprisonment.[9] Figure 6 shows the number of people sentenced to imprisonment for indecent act with a child under 16 between 2009–10 and 2013–14 by length of total effective sentence.  The length of total effective sentences ranged from 8 days to 12 years and 6 months, while the median total effective length of imprisonment was 3 years (meaning that half of the total effective sentence lengths were below 3 years and half were above).

The most common range of total effective imprisonment length was 3 to less than 4 years (25 people).

Figure 6: The number of people sentenced to imprisonment for indecent act with a child under 16 by length of total effective imprisonment term, 2009–10 to 2013–14

Total effective imprisonment length Number of people
Less than 1 year 7
1 to less than 2 years 16
2 to less than 3 years 18
3 to less than 4 years 25
4 to less than 5 years 10
5 to less than 6 years 7
6 to less than 7 years 4
7 to less than 8 years 1
8 to less than 9 years 0
9 to less than 10 years 0
10 to less than 11 years 1
11 to less than 12 years 0
12 to less than 13 years 1
People sentenced 90

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 indecent act with a child under 16.  Sentences and non-parole periods must be considered in this broader context.

Of the 90 people sentenced to imprisonment for indecent act with a child under 16, 84 were eligible to have a non-parole period fixed.[10] Of these people, 80 were given a non-parole period (88%).[11] Figure 7 shows the number of people sentenced to imprisonment for indecent act with a child under 16 between 2009–10 and 2013–14 by length of non-parole period.  Non-parole periods ranged from 6 months to 10 years and 6 months, while the median length of the non-parole period was 1 year and 6 months (meaning that half of the non-parole periods were below 1 year and 6 months and half were above). 

The most common range of non-parole period imposed was 1 year to less than 2 years (36 people).

Figure 7: The number of people sentenced to imprisonment for indecent act with a child under 16 by length of non-parole period, 2009–10 to 2013–14

Non-parole period Number of people
Less than 1 year 10
1 to less than 2 years 36
2 to less than 3 years 16
3 to less than 4 years 9
4 to less than 5 years 4
5 to less than 6 years 2
6 to less than 7 years 0
7 to less than 8 years 1
8 to less than 9 years 0
9 to less than 10 years 0
10 to less than 11 years 1
No non-parole period 9

Total effective sentences of imprisonment and non-parole periods

Figure 8 presents the average length of total effective sentences of imprisonment compared with the average length of non-parole periods from 2009–10 to 2013–14. From 2009–10 to 2013–14, the average length of total effective sentences for all people ranged from 2 years and 5 months in 2011–12 to 4 years and 5 months in 2009–10.  Over the same period, the average length of non-parole periods ranged from 1 year and 7 months in 2011–12 to 3 years and 1 month in 2009–10.

Figure 8: The average total effective sentence and the average non-parole period imposed on people sentenced to imprisonment for indecent act with a child under 16, 2009–10 to 2013–14

Financial year Average total effective length Average non-parole period
2009-10 4 years, 5 months 3 years, 1 month
2010-11 3 years, 4 months 2 years, 2 months
2011-12 2 years, 5 months 1 year, 7 months
2012-13 3 years, 2 months 2 years, 0 months
2013-14 2 years, 7 months 1 year, 8 months

Total effective sentence of imprisonment by non-parole period

Data on the total effective sentence of imprisonment by non-parole period for indecent act with a child under 16 are available on SACStat – Higher Courts.

Non-imprisonment sentences

Data on the length of non-imprisonment sentence types, such as community correction orders, suspended sentences, and fines, for indecent act with a child under 16 are available on SACStat – Higher Courts.

Summary

Between 2009–10 and 2013–14, 170 people were sentenced for indecent act with a child under 16 in the higher courts.  Of these people, 90 (53%) were given a principal sentence of imprisonment.

The number and range of offences for which people with a principal offence of indecent act with 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 3 years while the median principal imprisonment length was 1 year and 11 months.

Total effective imprisonment lengths ranged from 8 days to 12 years and 6 months, and non-parole periods (where imposed) ranged from 6 months to 10 years and 6 months.

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 found to be unfit to stand trial and/or 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. 147, which describes sentencing trends for indecent act with a child under 16 between 2007–08 and 2011–12.

[2] Data on first instance sentence outcomes presented in this Snapshot were obtained from the Strategic Analysis and Review Team at Court Services Victoria. The Sentencing Advisory Council collected data on appeal outcomes from the Australasian Legal Information Institute (external link opens in a new window). 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.

[3] Crimes Act 1958 (Vic) s 47.

[4] The value of a penalty unit changes each year and can be found in the Victorian Government Gazette and on the Victorian Legislation and Parliamentary Documents website (external link opens in a new window).

[5] 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.

[6] Immediate custodial sentences included imprisonment, partially suspended sentence, aggregate imprisonment, and mix (imprisonment and community-based order).

[7] Refer to endnote 5.

[8] Data presented in this section do not include imprisonment lengths for people who received an aggregate sentence of imprisonment. Sentence lengths for aggregate sentences of imprisonment apply to the whole case, while Figure 3 only deals with sentences of imprisonment for the principal proven offence of indecent act with a child under 16. During the 2009–10 to 2013–14 period, 1 person received an aggregate form of imprisonment.

[9] All of the 90 people sentenced to imprisonment as the principal sentence were also given imprisonment as the total effective sentence. One person given an aggregate form of imprisonment is also counted here.

[10] A total of 7 people were not eligible for parole because they were given a total effective sentence length of less than 1 year.

[11] 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 these cases.  The non-parole periods for these people are excluded from the analysis.  A non-parole period was not set for 2 people who were eligible for a non-parole period.