Sentencing Trends for Incest in the Higher Courts of Victoria 2012–13 to 2016–17

Sentencing Snapshot 217
Date of Publication: 
30 August 2018

Sentencing Snapshot no. 217 describes sentencing outcomes for the offence of incest in the County and Supreme Courts of Victoria from 2012–13 to 2016–17.

This is the most recent Sentencing Snapshot for this offence.

You can also access statistics for this offence on SACStat.

Authored and published by the Sentencing Advisory Council
© State of Victoria, Sentencing Advisory Council, 2018

Introduction

This Sentencing Snapshot describes sentencing outcomes1 for the offence of incest in the County and Supreme Courts of Victoria from 2012–13 to 2016–17.2 Adjustments made by the Court of Appeal to sentence or conviction as at June 2017 have been incorporated into the data in this Snapshot.3

Detailed data on incest and other offences is available on Sentencing Advisory Council Statistics Online (SACStat).

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.4 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.5

Incest was the principal offence6 in 1.4% of cases sentenced in the higher courts between 2012–13 and 2016–17.

People sentenced

From 2012–13 to 2016–17, 126 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 25 people sentenced for this offence in 2016–17, up by 1 person from the previous year. The number of people sentenced was highest in 2014–15 (29 people) and lowest in 2013–14 (22 people).

Figure 1: The number of people sentenced for incest by financial year, 2012–13 to 2016–17

Financial year Total
2012-13 26
2013-14 22
2014-15 29
2015-16 24
2016-17 25
Total 126

Sentence types and trends

Figure 2 shows the total number of people sentenced for incest and the number receiving an immediate custodial sentence. An immediate custodial sentence is one that involves at least some element of immediate imprisonment or detention.7 Over the five-year period, 94% of people were given an immediate custodial sentence.

Figure 2: The number of people sentenced for incest and the number receiving an immediate custodial sentence, 2012–13 to 2016–17

Financial year Custodial sentence Non-custodial Total
2012-13 23 3 26
2013-14 22 0 22
2014-15 28 1 29
2015-16 23 1 24
2016-17 23 2 25
Total 119 7 126

Table 1 shows the number of people sentenced for incest from 2012–13 to 2016–17 by the type of sentence imposed.

The availability of different sentence types has changed over time. Most notably, wholly and partially suspended sentences have now been abolished.8

Changes to community correction orders have also influenced sentencing trends over the five years covered by this Snapshot.9 Sentencing for some offences, including incest, committed after the five years covered by this Snapshot is subject to further restrictions.10

A total of 117 people (93%) received a principal sentence of imprisonment for incest. The principal sentence is the sentence imposed for the charge that is the principal offence.11 Very few people received any other type of sentence.

In 2012–13, the number and percentage of people receiving imprisonment was 22 of 26 people or 85%. Over time, the percentage increased slightly to 22 of 25 people or 88% in 2016–17. The number of people receiving imprisonment remained steady throughout the five-year period, apart from 2014–15, when the number of people sentenced for incest was slightly higher, at 28 people.

Of the 9 people who received a sentence other than imprisonment for incest, 3 received a community correction order, 2 received a partially suspended sentence and 2 received a wholly suspended sentence.

Table 1: The number and percentage of people sentenced for incest by sentence type, 2012–13 to 2016–17 (in descending order of numbers for 2016–17)

Sentence type 2012–13 2013–14 2014–15 2015–16 2016–17 Total
Imprisonment 22 (85%) 22 (100%) 28 (97%) 23 (96%) 22 (88%) 117 (93%)
Community correction order 0 (–) 0 (–) 1 (3%) 0 (–) 2 (8%) 3 (2%)
Partially suspended sentence 1 (4%) 0 (–) 0 (–) 0 (–) 1 (4%) 2 (2%)
Wholly suspended sentence 2 (8%) 0 (–) 0 (–) 0 (–) 0 (–) 2 (2%)
Aggregate wholly suspended sentence 0 (–) 0 (–) 0 (–) 1 (4%) 0 (–) 1 (<1%)
Non-custodial supervision order 1 (4%) 0 (–) 0 (–) 0 (–) 0 (–) 1 (<1%)
People sentenced 26 22 29 24 25 126

Age and gender of people sentenced

Data on the age and gender of people sentenced for incest is available on SACStat.

Sentence length

Two methods for describing sentence 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 the case level (the principal sentence is described above).

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).

Where a case involves multiple charges, the total effective sentence imposed on a person is often 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 2012–13 to 2016–17.

Principal sentence of imprisonment

A total of 117 people received a principal sentence of imprisonment for incest from 2012–13 to 2016–17. All of these people received a non-aggregate term of imprisonment.

Figure 3 shows these people by the length of their imprisonment term. Imprisonment terms ranged from 1 year to 9 years, while the median length of imprisonment was 5 years (meaning that half of the imprisonment terms were shorter than 5 years and half were longer).

The most common length of imprisonment imposed was 5 to less than 6 years (39 people).

Figure 3: The number of people sentenced to imprisonment for incest by length of imprisonment term, 2012–13 to 2016–17

Imprisonment length Number of people
1 to less than 2 years 1
2 to less than 3 years 1
3 to less than 4 years 22
4 to less than 5 years 29
5 to less than 6 years 39
6 to less than 7 years 16
7 to less than 8 years 5
8 to less than 9 years 2
9 to less than 10 years 2
People sentenced 117

As shown in Figure 4, the average (mean) length of imprisonment imposed on people sentenced for incest ranged from 4 years and 4 months in 2014–15 to 5 years and 8 months in 2016–17.

Figure 4: The average (mean) length of imprisonment imposed on people sentenced for incest, 2012–13 to 2016–17

Financial year Number of people Average length of imprisonment term
2012-13 22 4 years and 6 months
2013-14 22 4 years and 8 months
2014-15 28 4 years and 4 months
2015-16 23 4 years and 8 months
2016-17 22 5 years and 8 months

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. The section includes data on all people sentenced for a principal offence of incest, not just those who received imprisonment.

Figure 5 shows the number of people sentenced for the principal offence of incest by the total number of offences for which sentences were imposed. The number of sentenced offences per person ranged from 1 to 39, while the median was 5 offences. There were 14 people (11.1%) sentenced for the single offence of incest. The average number of offences per person sentenced for incest was 5.82.

Figure 5: The number of people sentenced for the principal offence of incest by the number of sentenced offences per person, 2012–13 to 2016–17

Number of offences Number of people
1 14
2 16
3 13
4 17
5 to 9 47
10 to 19 16
20 or more 3

Table 2 shows the 10 most common offences for people sentenced for incest, by number and percentage. The last column sets out the average number of offences sentenced per person. For example, 70 of the total 126 people (55.6%) also received sentences for indecent act with a child under 16. On average, they were sentenced for 3.13 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, 2012–13 to 2016–17

Offence Number of cases Percentage of cases Average number of proven offences per case
1. Incest 126 100.0 2.77
2. Indecent act with a child under 16 70 55.6 3.13
3. Make or produce child pornography 10 7.9 1.30
4. Indecent act with child 16–17 years under care, supervision or authority 9 7.1 1.56
5. Indecent assault (section 39 of the Crimes Act 1958 (Vic)) 9 7.1 1.44
6. Knowingly possess child pornography 9 7.1 1.22
7. Common law assault 8 6.3 2.13
8. Attempted incest 6 4.8 1.17
9. Indecent assault (section 44 of the Crimes Act 1958 (Vic)) 5 4.0 1.00
10. Making a threat to kill 4 3.2 1.50
People sentenced 126 100.0 5.82

Total effective imprisonment terms

Figure 6 shows the number of people sentenced to imprisonment for incest from 2012–13 to 2016–17 by length of total effective imprisonment term. Total effective imprisonment terms ranged from 1 year to 16 years, while the median total effective imprisonment term was 7 years (meaning that half of the total effective imprisonment terms were below 7 years and half were above).

The most common total effective imprisonment term was 5 to less than 6 years (24 people).

Figure 6: The number of people sentenced to imprisonment for incest by length of total effective imprisonment term, 2012–13 to 2016–17

Total effective imprisonment length Number of people
1 to less than 2 years 1
2 to less than 3 years 0
3 to less than 4 years 4
4 to less than 5 years 11
5 to less than 6 years 24
6 to less than 7 years 15
7 to less than 8 years 13
8 to less than 9 years 18
9 to less than 10 years 12
10 to less than 11 years 6
11 to less than 12 years 5
12 to less than 13 years 1
13 to less than 14 years 1
14 to less than 15 years 3
15 to less than 16 years 2
16 to less than 17 years 1
Total people 117

Non-parole period

If a person is sentenced to a term of immediate imprisonment of less than one year, the court cannot impose a non-parole period. For terms between 1 year and less than 2 years, the court has the discretion to fix a non-parole period. For terms of imprisonment of 2 years or more, the court must impose a non-parole period in most circumstances. 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 in custody.

Of the 117 people who were sentenced to imprisonment for incest, all were eligible to have a non-parole period fixed. Of these people, 111 were given a non-parole period (95%).12 Figure 7 shows the number of people sentenced to imprisonment for incest from 2012–13 to 2016–17 by length of non-parole period. Non-parole periods ranged from 1 year to 12 years, while the median length of the non-parole period was 4 years and 8 months (meaning that half of the non-parole periods were below 4 years and 8 months and half were above).

The most common non-parole period imposed was 3 to less than 4 years (23 people).

Figure 7: The number of people sentenced to imprisonment for incest by length of non-parole period, 2012–13 to 2016–17

Non-parole period Number of people
1 to less than 2 years 4
2 to less than 3 years 13
3 to less than 4 years 23
4 to less than 5 years 17
5 to less than 6 years 18
6 to less than 7 years 14
7 to less than 8 years 8
8 to less than 9 years 8
9 to less than 10 years 2
10 to less than 11 years 2
11 to less than 12 years 0
12 to less than 13 years 2
No non-parole period 1
Total people 112

Total effective sentences of imprisonment and non-parole periods

Figure 8 compares the average length of total effective sentences of imprisonment with the average length of non-parole periods from 2012–13 to 2016–17.

From 2012–13 to 2016–17, the average length of total effective sentences for all people ranged from 6 years and 8 months in 2015–16 to 8 years and 5 months in 2016–17. Over the same period, the average length of non-parole periods ranged from 4 years and 5 months in 2012–13 and 2015–16 to 5 years and 8 months in 2016–17.

Figure 8: The average total effective sentence and the average non-parole period imposed on people sentenced to imprisonment for incest, 2012–13 to 2016–17

Financial Year Average total effective length Average non-parole period
2012-13 7 years and 0 months 4 years and 5 months
2013-14 7 years and 4 months 5 years and 0 months
2014-15 7 years and 3 months 4 years and 10 months
2015-16 6 years and 8 months 4 years and 5 months
2016-17 8 years and 5 months 5 years and 8 months

Further data on total effective sentences of imprisonment and corresponding non-parole periods for incest is available on SACStat.

Non-imprisonment sentences

Data on the length of non-imprisonment sentence types, such as community correction orders, suspended sentences and fines, for incest is available on SACStat.

Summary

From 2012–13 to 2016–17, 126 people were sentenced in the higher courts for incest. Of these people, 117 (93%) 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 5 years.

Total effective imprisonment lengths ranged from 1 year to 16 years, and non-parole periods (where imposed) ranged from 1 year to 12 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 accused is found to be unfit to stand trial 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. 192, which describes sentencing trends for incest between 2010–11 and 2014–15.

2. Data on first-instance sentencing outcomes presented in this Snapshot was obtained from the Strategic Analysis and Review Team at Court Services Victoria. Data on appeal outcomes was collected by the Sentencing Advisory Council from the Australasian Legal Information Institute, and was also 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 is accurate, the data is subject to revision.

3. In October 2017, the High Court delivered its judgment in Director of Public Prosecutions v Dalgliesh (A Pseudonym) [2017] HCA 41, in which it made two important findings about sentencing in Victoria. First, Victorian courts had been giving too much weight to current sentencing practices, which is just one of the factors courts are required to take into account when imposing a sentence. Second, where current sentencing practices are shown to be in error (for example, when they fail to adequately reflect community expectations) courts should change their practices immediately, not incrementally.

Although the High Court’s decision occurred after the five-year period of this Snapshot ended, it may result in considerable changes to sentencing patterns for future editions of the Snapshots.

4. This Snapshot discusses the offence of incest sentenced between 1 July 2012 and 30 June 2017 under the historical sections 44(1) and 44(2) of the Crimes Act 1958 (Vic). The offences under the historical sections 44(3) and 44(4) of the Crimes Act 1958 (Vic) 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 138 conviction returns that had an incest offence as the principal offence in the five-year period, 122 sentencing remarks were located. For these cases, the sentencing remarks enabled the classification of incest into the subsections of the Act. For the remaining 16 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, 126 cases were classified as having a principal offence that corresponded to sections 44(1) and 44(2) of the Crimes Act 1958 (Vic). The remaining 12 cases were classified as having a principal offence corresponding to sections 44(3) and 44(4) and have therefore not been included in this Snapshot.

As of 1 July 2017, the offence of incest has been moved to new sections of the Crimes Act 1958 (Vic). Sections 50C and 50D have replaced the former offences listed in sections 44(1) and 44(2), while sections 50E and 50F replace the former offences listed in sections 44(3) and 44(4). The maximum penalties for each type of incest offence remain the same. In the five-year period of this Snapshot, no incest offences were sentenced under the new sections.

5. 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.

6. 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.

7. An immediate custodial sentence includes imprisonment and a partially suspended sentence.

8. Suspended sentences have been abolished in the higher courts for all offences committed on or after 1 September 2013 and in the Magistrates’ Court for all offences committed on or after 1 September 2014.

9. For example, initially the maximum term of imprisonment that could be combined with a community correction order was set at 3 months, but it was increased to 2 years in September 2014 and reduced to 1 year in March 2017.

10. Under section 5(2G) of the Sentencing Act 1991 (Vic) a court cannot impose a community correction order (or another non-custodial order) for Category 1 offences, including incest, if the offence was committed on or after 20 March 2017. Likewise, under section 5(2H) of the Sentencing Act 1991 (Vic) a court cannot impose a community correction order (or another non-custodial order) for Category 2 offences where the offence was committed on or after 20 March 2017, unless there are special reasons for doing so.

Also, under section 5(2)(ab) of the Sentencing Act 1991 (Vic) when sentencing certain offences, including incest, committed on or after 1 February 2018, a court must take into account the standard sentence for the offence.

11. Refer to endnote 6.

12. Five 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 one person who was eligible for a non-parole period.