Sentencing Trends for Incest in the Higher Courts of Victoria 2010–11 to 2014–15

Sentencing Snapshot 192
Date of Publication: 
28 June 2016

Sentencing Snapshot no. 192 describes sentencing outcomes for the offence of incest in the County Court of Victoria between 2010–11 and 2014–15.

The most recent Sentencing Snapshot for this offence is Snapshot no. 217.

You can also access statistics for this offence on SACStat.

Authored and published by the Sentencing Advisory Council
© Copyright State of Victoria, Sentencing Advisory Council, 2016

Introduction

This Sentencing Snapshot describes sentencing outcomes[1] for the offence of incest in the County Court of Victoria between 2010–11 and 2014–15.[2] Adjustments made by the Court of Appeal to sentence or conviction as at June 2015 have been incorporated into the data in this Snapshot.

Detailed data on incest and other offences are available on SACStat – Higher Courts.

A person who engages in an act of sexual penetration with a person whom he or she knows to be his or her child or other lineal descendant or his or her step-child is guilty of incest. Similarly, a person who takes part in an act of sexual penetration with a person under the age of 18 whom he or she knows to be the child or other lineal descendant (or the step-child) of his or her de facto spouse is guilty of incest.[3] Incest is an indictable offence and is triable before a judge and jury in the County or Supreme Court. The maximum penalty for this offence is 25 years’ imprisonment and/or 3,000 penalty units.[4]

Incest was the principal offence[5] in 1.4% of cases sentenced in the higher courts between 2010–11 and 2014–15.

People sentenced

From 2010–11 to 2014–15, 130 people were sentenced in the higher courts for a principal offence of incest.

Figure 1 shows the number of people sentenced for the principal offence of incest by financial year. There were 29 people sentenced for this offence in 2014–15, up by 6 people from the previous year.

Figure 1: The number of people sentenced for incest by financial year, 2010–11 to 2014–15

Financial year Total
2010–11 25
2011–12 27
2012–13 26
2013–14 23
2014–15 29
Total 130

Sentence types and trends

Figure 2 shows the total number of people sentenced for incest 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, 95% of people were given an immediate custodial sentence. This peaked at 100% (23 of 23) in 2013–14, increasing from 88% (23 of 26) in 2012–13. In 2014–15, 97% of people sentenced (28 of 29) were given an immediate custodial sentence.

Figure 2: The number of people sentenced for incest and the number that received an immediate custodial sentence, 2010–11 to 2014–15

Financial year Immediate custodial sentence Non-Custodial People sentenced
2010–11 24 1 25
2011–12 26 1 27
2012–13 23 3 26
2013–14 23 0 23
2014–15 28 1 29
Total 124 6 130

Table 1 shows the number of people sentenced for incest from 2010–11 to 2014–15 by the types of sentences imposed.

Over the five-year period, the majority of the people sentenced for incest received a period of imprisonment (95% or 123 of 130 people).

Table 1: The number and percentage of people sentenced for incest by sentence type, 2010–11 to 2014–15

Sentence type 2010–11 2011–12 2012–13 2013–14 2014–15 Total
Imprisonment 24 (96%) 26 (96%) 22 (85%) 23 (100%) 28 (97%) 123 (95%)
Partially suspended sentence 0 (–) 0 (–) 1 (4%) 0 (–) 0 (–) 1 (1%)
Wholly suspended sentence 0 (–) 1 (4%) 2 (8%) 0 (–) 0 (–) 3 (2%)
Community correction order 0 (–) 0 (–) 0 (–) 0 (–) 1 (3%) 1 (1%)
Non-custodial supervision order 1 (4%) 0 (–) 1 (4%) 0 (–) 0 (–) 2 (2%)
People sentenced 25 27 26 23 29 130

Age and gender of people sentenced

Data on the age and gender of people sentenced for incest 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 is longer than the principal sentence. Principal sentences for incest must be considered in this broader context. The following sections analyse the use of imprisonment for the offence of incest from 2010–11 to 2014–15.

Principal sentence of imprisonment

A total of 123 people (95%) received a principal sentence of imprisonment for incest between 2010–11 and 2014–15.

Figure 3 shows the length of these people’s imprisonment terms. Imprisonment terms ranged from 2 years and 6 months to 7 years and 6 months, while the median length of imprisonment was 4 years and 6 months (meaning that half of the imprisonment terms were shorter than 4 years and 6 months and half were longer).

The most common range of imprisonment length imposed was 5 to less than 6 years (35 people).

Figure 3: The number of people sentenced to imprisonment for incest by length of imprisonment term, 2010–11 to 2014–15

Imprisonment length Number of people
Less than 1 year 0
1 to less than 2 years 0
2 to less than 3 years 1
3 to less than 4 years 31
4 to less than 5 years 32
5 to less than 6 years 35
6 to less than 7 years 18
7 to less than 8 years 6
People sentenced 123

As shown in Figure 4, the average length of imprisonment term imposed on people sentenced for incest ranged from 4 years and 4 months in 2010–11 to 4 years and 10 months in 2011–12.

Other offences finalised at the same hearing

Often people prosecuted for incest 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 incest.

Figure 4: The average length of imprisonment term imposed on people sentenced for incest, 2010–11 to 2014–15

Financial year Average length of imprisonment term
2010–11 (n = 24) 4 years, 4 months
2011–12 (n = 26) 4 years, 10 months
2012–13 (n = 22) 4 years, 6 months
2013–14 (n = 23) 4 years, 8 months
2014–15 (n = 28) 4 years, 5 months

Figure 5 shows the number of people sentenced for the principal offence of incest by the total number of offences for which sentences were set. The number of sentenced offences per person ranged from 1 to 39, while the median was 6 offences. There were 10 people (7.7%) sentenced for the single offence of incest. The average (mean) number of offences per person sentenced for incest was 7.71.

Figure 5: The number of people sentenced for the principal offence of incest by the number of sentenced offences per person, 2010–11 to 2014–15

Number of offences Number of people
1 10
2 13
3 11
4 14
5–9 47
10–19 27
20+ 8
Total 130

While Figure 5 presents the number of sentenced offences for those sentenced for incest, 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, 83 of the total 130 people (63.8%) also received sentences for indecent act with a child under 16. On average, they were sentenced for 4.11 counts of indecent act with a child under 16.

Table 2: The number and percentage of people sentenced for the principal offence of incest by the most common offences that were sentenced and the average number of those offences that were sentenced, 2010–11 to 2014–15

Offence Number of cases Percentage of cases Average number of offences per case
1. Incest 130 100.0 3.42
2. Indecent act with or in the presence of a child under 16 83 63.8 4.11
3. Make or produce child pornography 15 11.5 1.27
4. Knowingly possess child pornography 10 7.7 1.00
5. Indecent assault 9 6.9 2.11
6. Common law assault 8 6.2 2.13
7. Make threat to kill 8 6.2 1.63
8. Indecent act with child aged 16–17 under care, supervision, or authority 8 6.2 1.50
9. Attempted incest 8 6.2 1.25
10. Causing injury intentionally 4 3.1 2.75
People sentenced 130 100.0 7.71

Total effective sentence of imprisonment

There were 123 people given a total effective sentence of imprisonment. Figure 6 shows the number of people sentenced to imprisonment for incest between 2010–11 and 2014–15 by length of total effective sentence. The length of total effective sentences ranged from 3 years to 18 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).

The most common total effective imprisonment length was 7 to less than 8 years (18 people).

Figure 6: The number of people sentenced to imprisonment for incest by length of total effective imprisonment term, 2010–11 to 2014–15

Total effective imprisonment length Number of people
Less than 1 year 0
1 to less than 2 years 0
2 to less than 3 years 0
3 to less than 4 years 6
4 to less than 5 years 13
5 to less than 6 years 17
6 to less than 7 years 16
7 to less than 8 years 18
8 to less than 9 years 17
9 to less than 10 years 13
10 to less than 11 years 3
11 to less than 12 years 9
12 to less than 13 years 3
13 to less than 14 years 2
14 to less than 15 years 3
15 to less than 16 years 1
16 to less than 17 years 1
17 to less than 18 years 0
18 to less than 19 years 1
People sentenced 123

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 is longer than the individual principal sentence for incest. Sentences and non-parole periods must be considered in this broader context.

Of the 123 people who were sentenced to imprisonment for incest, all 123 were eligible to have a non-parole period fixed. Of these people, 121 were given a non-parole period (98%).[8] Figure 7 shows the number of people sentenced to imprisonment for incest between 2010–11 and 2014–15 by length of non-parole period. Non-parole periods ranged from 1 year to 15 years, 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 period imposed was 5 to less than 6 years (23 people).

Figure 7: The number of people sentenced to imprisonment for incest by length of non-parole period, 2010–11 to 2014–15

Non-parole period Number of people
Less than 1 year 0
1 to less than 2 years 4
2 to less than 3 years 16
3 to less than 4 years 20
4 to less than 5 years 15
5 to less than 6 years 23
6 to less than 7 years 17
7 to less than 8 years 8
8 to less than 9 years 8
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 1
13 to less than 14 years 0
14 to less than 15 years 0
15 to less than 16 years 1

Total effective sentence of imprisonment and non-parole period

Figure 8 compares the average length of total effective sentences of imprisonment with the average length of non-parole periods from 2010–11 to 2014–15.

From 2010–11 to 2014–15, the average length of total effective sentences for all people ranged from 7 years in 2012–13 to 8 years and 9 months in 2010–11. Over the same period, the average length of non-parole periods ranged from 4 years and 5 months in 2012–13 to 5 years and 11 months in 2010–11.

Figure 8: The average total effective sentence and the average non-parole period imposed on people sentenced to imprisonment for incest, 2010–11 to 2014–15

Financial year Average total effective length Average non-parole period
2010–11 8 years, 9 months 5 years, 11 months
2011–12 7 years, 10 months 5 years, 4 months
2012–13 7 years, 0 months 4 years, 5 months
2013–14 7 years, 4 months 5 years, 0 months
2014–15 7 years, 4 months 4 years, 10 months

Total effective sentence of imprisonment by non-parole period

Data on the total effective sentence of imprisonment by non-parole period for incest 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 incest are available on SACStat – Higher Courts.

Summary

Between 2010–11 and 2014–15, 130 people were sentenced for incest in the higher courts. Of these people, 123 (95%) were given a principal sentence of imprisonment.

The number and range of offences for which people with a principal offence of incest 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 4 years and 6 months.

Overall, total effective imprisonment lengths ranged from 3 years to 18 years, and non-parole periods (where imposed) ranged from 1 year to 15 years.

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 or not guilty because of mental impairment. However, these orders 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. 160, which describes sentencing trends for incest between 2008–09 and 2012–13.

[2] Data on first-instance sentence outcomes presented in this Snapshot were obtained from the Strategic Analysis and Review Team at Court Services Victoria. Data on appeal outcomes were collected by the Sentencing Advisory Council from the Australasian Legal Information Institute (external link opens in a new window), and also were provided by the Victorian Court of Appeal. 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] This Snapshot discusses the offence of incest under sections 44(1) and 44(2) of the Crimes Act 1958 (Vic). The offences under sections 44(3) and 44(4) are different types of incest and have a statutory maximum penalty of 5 years’ imprisonment and are excluded from this report.

The sentencing database used for this analysis was compiled using conviction returns. Due to some incomplete information found on incest conviction returns in relation to the specific type of incest, an exercise was undertaken to verify the offence on the conviction return against the offence stated in sentencing remarks. Of the 143 conviction returns that had an incest offence as the principal proven offence in the five-year period, 126 sentencing remarks were located. For these cases, the sentencing remarks enabled the classification of incest into the subsections of the Act. For the remaining 17 incest cases where no sentencing remarks were located, the offence stated on the conviction return was used to define the specific incest offence. As a result of this exercise, 130 cases had a principal proven offence that corresponded to sections 44(1) and 44(2) of the Crimes Act 1958 (Vic). Of the remaining cases, 4 were excluded because their sentences were set aside by the Court of Appeal, while the remaining 9 cases had a principal proven offence corresponding to sections 44(3) and 44(4), which are not included in this Snapshot.

[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 sentence includes imprisonment and partially suspended sentences.

[7] Refer to Endnote 5.

[8] Two people were not given a non-parole period in relation to that case alone, but were given 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.