Sentencing Trends for Indecent Act with a Child under 16 and Related Offences in the Higher Courts of Victoria 2013-14 to 2017-18

Sentencing Snapshot 233
Date of Publication: 
22 May 2019

Sentencing Snapshot no. 233 describes sentencing outcomes for the offence of indecent act with a child under 16 in the County Court of Victoria from 2013-14 to 2017-18.

This is the most recent Snapshot for this offence.

You can also access statistics for indecent act with a child under 16 on SACStat.

Authored and published by the Sentencing Advisory Council
© State of Victoria, Sentencing Advisory Council, 2019

Introduction

This Sentencing Snapshot describes the combined sentencing outcomes1 in the County Court of Victoria from 2013–14 to 2017–18 for the offence of indecent act with a child under 16 and the related offences2 of sexual assault of a child aged under 16, sexual activity in the presence of a child aged under 16 and causing a child aged under 16 to be present during sexual activity.3 Adjustments made by the Court of Appeal to sentence or conviction as at June 2018 have been incorporated into the data in this Snapshot.4

Detailed data on indecent act with a child under 16 and other offences is available on Sentencing Advisory Council Statistics Online (SACStat).

A person who is involved in any act in indecent circumstances, with or in the presence of a child who is aged under 16, is guilty of the offence of committing an indecent act with a child, if the offence occurred prior to 1 July 2017.5 On or after 1 July 2017, a person who engages in indecent acts with a child may, depending on the circumstances, be charged with sexual assault of a child,6 engaging in sexual activity in the presence of a child aged under 16 7 or causing a child aged under 16 to be present during sexual activity.8

Each of these four offences is an indictable offence that carries a maximum penalty of 10 years’ imprisonment and/or a fine of 1,200 penalty units.9 Indictable offences are more serious offences triable before a judge and jury in the County or Supreme Court. Each of these offences can also be tried summarily by the Magistrates’ Court if the Magistrates’ Court considers it appropriate and the accused consents. The offences of sexual assault of a child aged under 16, sexual activity in the presence of a child aged under 16 and causing a child aged under 16 to be present during sexual activity, committed on or after 1 February 2018, are subject to a standard sentence of 4 years.10

These four offences were the principal offence11 in 1.7% of cases sentenced in the higher courts between 2013–14 and 2017–18.

People sentenced

From 2013–14 to 2017–18, 150 people were sentenced in the higher courts for a principal offence of indecent act with a child under 16 or related offences.

Figure 1 shows the number of people sentenced for the principal offence of indecent act with a child under 16 or related offences, by financial year. There were 33 people sentenced for these offences in 2017–18, up by 4 people from the previous year. The number of people sentenced was highest in 2014–15 (37 people) and lowest in 2015–16 (18 people).

Figure 1: The number of people sentenced for indecent act with a child under 16 or related offences, by financial year, 2013–14 to 2017–18

Financial Year Total
2013-14 33
2014-15 37
2015-16 18
2016-17 29
2017-18 33
Total 150

Sentence types and trends

Figure 2 shows the total number of people sentenced for indecent act with a child under 16 or related offences and the number receiving an immediate custodial sentence. An immediate custodial sentence involves at least some element of immediate imprisonment or detention.12 Over the five-year period, exactly half of people were given an immediate custodial sentence.

Figure 2: The number of people sentenced for indecent act with a child under 16 or related offences and the number receiving an immediate custodial sentence, 2013–14 to 2017–18

Financial Year Immediate custodial sentence People sentenced
2013-14 17 33
2014-15 17 37
2015-16 9 18
2016-17 17 29
2017-18 15 33
Total 75 150

Table 1 shows the number of people sentenced for indecent act with a child under 16 or related offences by the types of sentences imposed. The availability of different sentence types has changed over time. Most notably, wholly and partially suspended sentences have now been abolished.13 Changes to community correction orders have also influenced the sentencing trends over the five years covered by this Snapshot.14

Over the five-year period, almost half of the people sentenced for indecent act with a child under 16 or related offences received a principal sentence of imprisonment (45% or 67 of 150 people). Of these, 44 people received a sentence of imprisonment alone, 21 people received imprisonment combined with a community correction order and 2 people received an aggregate sentence of imprisonment combined with a community correction order. The principal sentence is the sentence imposed for the charge that is the principal offence.15

Table 1: The number and percentage of people sentenced for indecent act with a child under 16 or related offences by sentence type, 2013–14 to 2017–18

Sentence type 2013–14 2014–15 2015–16 2016–17 2017–18 Total
Imprisonment 13 (39%) 10 (27%) 1 (6%) 11 (38%) 9 (27%) 44 (29%)
Community correction order 12 (36%) 12 (32%) 4 (22%) 3 (10%) 10 (30%) 41 (27%)
Imprisonment and community correction order (combined) 0 (–) 6 (16%) 6 (33%) 6 (21%) 3 (9%) 21 (14%)
Wholly suspended sentence 2 (6%) 5 (14%) 0 (–) 4 (14%) 4 (12%) 15 (10%)
Non-custodial supervision order 1 (3%) 1 (3%) 1 (6%) 1 (3%) 3 (9%) 7 (5%)
Partially suspended sentence 4 (12%) 1 (3%) 1 (6%) 0 (–) 1 (3%) 7 (5%)
Adjourned undertaking with conviction 0 (–) 0 (–) 0 (–) 3 (10%) 0 (–) 3 (2%)
Adjourned undertaking without conviction 0 (–) 2 (5%) 1 (6%) 0 (–) 0 (–) 3 (2%)
Unconditional release 1 (3%) 0 (–) 1 (6%) 0 (–) 1 (3%) 3 (2%)
Aggregate imprisonment and community correction order (combined) 0 (–) 0 (–) 1 (6%) 0 (–) 1 (3%) 2 (1%)
Youth justice centre order 0 (–) 0 (–) 0 (–) 0 (–) 1 (3%) 1 (<1%)
Community correction order and fine (combined) 0 (–) 0 (–) 1 (6%) 0 (–) 0 (–) 1 (<1%)
Aggregate fine 0 (–) 0 (–) 1 (6%) 0 (–) 0 (–) 1 (<1%)
Probation 0 (–) 0 (–) 0 (–) 1 (3%) 0 (–) 1 (<1%)
People sentenced 33 37 18 29 33 150

The percentage of people receiving any form of imprisonment for the principal offence of indecent act with a child under 16 or related offences remained relatively consistent (between 39% and 44%) over the five years, aside from 2016–17 when imprisonment peaked at 59% of sentences in that year. A term of imprisonment (including aggregate imprisonment) combined with a community correction order increased from 0% in 2013–14 to a peak of 39% in 2015–16, before declining in the next two consecutive years to 12% in 2017–18. In comparison, community correction orders (without imprisonment) slightly declined over the same period, decreasing from 36% in 2013–14 to a low of 10% in 2016–17, before increasing to 30% in 2017–18.

Principal and total effective sentences

In this section, two methods are used to describe sentence lengths. One method relates to the principal sentence and describes sentences for the offence at a charge level. The other relates to the total effective sentence and describes sentences for the offence at a 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 sometimes longer than the principal sentence. Principal sentences for indecent act with a child under 16 or related offences 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 or related offences from 2013–14 to 2017–18.

Principal sentence of imprisonment

A total of 67 people received a principal sentence of imprisonment for indecent act with a child under 16 or related offences. Of these, 65 people received a non-aggregate term of imprisonment and 2 people received an aggregate term. There were 23 people who received a community correction order in addition to their term of imprisonment.

Figure 3 shows the length of imprisonment for the people who received a non-aggregate term.16 Imprisonment terms ranged from 7 days to 4 years and 6 months, while the median length of imprisonment was 1 year and 3 months (meaning that half of the imprisonment terms were below 1 year and 3 months and half were above).

The most common length of imprisonment was 1 to less than 2 years (23 people).

Figure 3: The number of people sentenced to imprisonment for indecent act with a child under 16 or related offences, by length of imprisonment term, 2013–14 to 2017–18

Imprisonment length Number of people
Less than 1 year 21
1 to less than 2 years 23
2 to less than 3 years 15
3 to less than 4 years 4
4 to less than 5 years 2
People sentenced 65

As shown in Figure 4, the average (mean) length of imprisonment imposed on people sentenced for indecent act with a child under 16 or related offences ranged from 1 year in 2015–16 to 1 year and 11 months in 2017–18. The average length of imprisonment for indecent act with a child under 16 or related offences declined in the initial three years to 2015–16, from 1 year and 8 months in 2013–14 to 1 year in 2015–16, before gradually increasing to 1 year and 11 months in 2017–18. Similarly, the number of people receiving a non-aggregate term of imprisonment almost halved in the three years to 2015–16, from 13 people in 2013–14 to 7 people in 2015–16, before increasing to 12 people in 2017–18.

Figure 4: The average (mean) length of imprisonment imposed on people sentenced for indecent act with a child under 16 or related offences, 2013–14 to 2017–18

Financial year Number of people Average length of imprisonment term
2013-14 13 1 year and 8 months
2014-15 16 1 year and 3 months
2015-16 7 1 year and 0 months
2016-17 17 1 year and 4 months
2017-18 12 1 year and 11 months

Other offences finalised at the same hearing

Sometimes people prosecuted for indecent act with a child under 16 or related offences face multiple charges, which are finalised at the same hearing. This section looks at the range of offences that offenders were sentenced for alongside the principal offence of indecent act with a child under 16 or related offences. The section includes data on all people sentenced for a principal offence of indecent act with a child under 16 or related offences, not just those who received imprisonment.

Figure 5 shows the number of people sentenced for the principal offence of indecent act with a child under 16 or related offences by the total number of sentenced offences per person. The number of sentenced offences per person ranged from 1 to 31, while the median was 3 offences. There were 29 people (19%) sentenced for the single offence of indecent act with a child under 16 or related offences. The average number of offences per person was 4.01.

Figure 5: The number of people sentenced for the principal offence of indecent act with a child under 16 or related offences, by the number of sentenced offences per person, 2013–14 to 2017–18

Number of offences Number of people
1 29
2 38
3 20
4 24
5-9 29
10-19 8
20-29 1
30+ 1
Total 150

Table 2 shows the 10 most common offences, by number and percentage, for people sentenced for indecent act with a child under 16 or related offences. The last column sets out the average number of offences sentenced per person. For example, 10 of the total 150 people (6.7%) also received sentences for knowingly possessing child pornography. On average, they were sentenced for 1 count of knowingly possessing child pornography.

Table 2: The number and percentage of people sentenced for the principal offence of indecent act with a child under 16 or related offences, by the most common offences that were sentenced and the average number of those offences that were sentenced, 2013–14 to 2017–18

Offence Number of cases Percentage of cases Average number of proven offences per case
1. Indecent act with a child under 16 or related offences 150 100 3.13
2. Knowingly possess child pornography 10 6.7 1.00
3. Sexual penetration of a child aged 12 to 16 7 4.7 2.14
4. Indecent assault (Crimes Act 1958 (Vic) s 44 (repealed)) 5 3.3 2.20
5. Make or produce child pornography 5 3.3 1.60
6. Indecent assault (Crimes Act 1958 (Vic) s 39 (repealed)) 5 3.3 1.40
7. Incest with sibling 4 2.7 1.75
8. Sexual penetration of a child aged under 12 3 2.0 4.00
9. Indecent act against a person aged 16 or 17 under the care, supervision or authority of the offender 3 2.0 2.67
10. Use a carriage service to groom a child under 16 for sexual activity 3 2.0 1.33
People sentenced 150 100 4.01

Total effective imprisonment terms

Figure 6 shows the number of people sentenced to imprisonment for indecent act with a child under 16 or related offences by length of total effective imprisonment term. The total effective imprisonment terms ranged from 7 days to 7 years and 10 months, while the median total effective imprisonment term was 2 years (meaning that half of the total effective imprisonment terms were below 2 years and half were above).

The most common total effective imprisonment term was less than 1 year (18 people).

Figure 6: The number of people sentenced to imprisonment for indecent act with a child under 16 or related offences, by length of total effective imprisonment term, 2013–14 to 2017–18

Total effective imprisonment length Number of people
Less than 1 year 18
1 to less than 2 years 14
2 to less than 3 years 13
3 to less than 4 years 9
4 to less than 5 years 6
5 to less than 6 years 6
6 to less than 7 years 0
7 to less than 8 years 1
People sentenced 67

Non-parole period

If a person is sentenced to a term of immediate imprisonment of less than 1 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. If the court fixes a non-parole period, the person must serve that period before becoming eligible for parole. If the court does not set a non-parole period, the person must serve the entirety of their imprisonment term in custody.

Of the 67 people who were sentenced to imprisonment for indecent act with a child under 16 or related offences, 49 were eligible to have a non-parole period fixed.17 Of these people, 38 were given a non-parole period (78%).18 Figure 7 shows the number of people sentenced to imprisonment for indecent act with a child under 16 or related offences by length of non-parole period. Non-parole periods ranged from 6 months to 5 years and 8 months, while the median non-parole period was 1 year and 8 months (meaning that half of the non-parole periods were below 1 year and 8 months and half were above).

The most common non-parole period was 1 to less than 2 years (18 people); however, the most common outcome was that no non-parole period was imposed (27 people).

Figure 7: The number of people sentenced to imprisonment for indecent act with a child under 16 or related offences, by length of non-parole period, 2013–14 to 2017–18

Non-parole period Number of people
Less than 1 year 4
1 to less than 2 years 18
2 to less than 3 years 9
3 to less than 4 years 6
4 to less than 5 years 0
5 to less than 6 years 1
No non-parole period 27
Total people 65

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.19

From 2013–14 to 2017–18, the average length of total effective sentences for all people ranged from 1 year and 7 months in 2015–16 to 3 years in 2017–18. Over the same period, the average length of non-parole periods ranged from 1 year and 7 months in 2013–14 to 3 years in 2015–16. The average total effective sentence in Figure 8 coincides with the trends observed in the average non-aggregate imprisonment lengths in Figure 4, whereby imprisonment lengths gradually declined in the initial three years to 2015–16, before trending upwards in the next two consecutive financial years to 2017–18.

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 or related offences, 2013–14 to 2017–18

Financial year Average total effective length Average non-parole period
2013-14 2 years and 5 months 1 year and 7 months
2014-15 2 years and 1 month 1 year and 9 months
2015-16 1 year and 7 months 3 year and 0 months
2016-17 1 year and 11 months 1 year and 8 months
2017-18 3 years and 0 months 2 year and 8 months

Further data on total effective sentences of imprisonment and corresponding non-parole periods for indecent act with a child under 16 or related offences is available on SACStat. Data on the length of non-imprisonment sentence types, such as community correction orders, for indecent act with a child under 16 or related offences is also available on SACStat.

Summary

From 2013–14 to 2017–18, 150 people were sentenced for indecent act with a child under 16 or related offences in the higher courts. Of these people, 67 (45%) were given a principal sentence of imprisonment.

People with a principal offence of indecent act with a child under 16 or related offences were sometimes sentenced for other offences. The number and range of those offences 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 2 years, while the median principal imprisonment length was 1 year and 3 months.

Total effective imprisonment lengths ranged from 7 days to 7 years and 10 months, and non-parole periods (where imposed) ranged from 6 months to 5 years and 8 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 in which 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. 206, which describes sentencing trends for indecent act with a child under 16 between 2011–12 and 2015–16.

This Sentencing Snapshot is an update of Sentencing Snapshot no. 198, which describes sentencing trends for murder between 2011–12 and 2015–16.

2. Indecent act with a child (or in the presence of a child) aged under 16 was once an offence under section 47 of the Crimes Act 1958 (Vic). On 1 July 2017, this offence was abolished and replaced with three similar offences in the Crimes Act 1958 (Vic): sexual assault of a child aged under 16 (section 49D), sexual activity in the presence of a child aged under 16 (section 49F) and causing a child aged under 16 to be present during sexual activity (section 49H). This Snapshot combines all four offences in the total count of people sentenced, provided they were sentenced during the five-year reference period. It is possible that each of the three new offences may warrant separate Snapshots in future.

3. Data on first-instance sentencing outcomes 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.

4. 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, courts should change their practices immediately, not incrementally.

Although the High Court’s decision only occurred during the last financial year of this Snapshot, it may result in considerable changes to sentencing patterns for future editions of the Snapshots.

5. Crimes Act 1958 (Vic) s 47 (repealed).

6. Crimes Act 1958 (Vic) s 49D.

7. Crimes Act 1958 (Vic) s 49F.

8. Crimes Act 1958 (Vic) s 49H.

9. 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.

10. Under section 5(2)(ab) of the Sentencing Act 1991 (Vic), a court must take into account the standard sentence when sentencing certain offences.

11. 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.

12. An immediate custodial sentence includes imprisonment, imprisonment combined with a community correction order, aggregate imprisonment combined with a community correction order, a partially suspended sentence and a youth justice centre order.

13. 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.

14. 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.

15. Refer to Endnote 11.

16. Data presented in this section does not include imprisonment lengths for people who received an aggregate sentence of imprisonment. Figures 3 and 4 only report on non-aggregate sentences of imprisonment for the principal offence of indecent act with a child under 16 or related offences.

17. A total of 18 people were not eligible to have a non-parole period fixed 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 periods that relate to these cases. The non-parole periods for these people are excluded from the analysis. A non-parole period was not set for 9 people who were eligible for a non-parole period.

19. In 2015–16, the average total effective imprisonment length was lower than the average non-parole period. This may occur when a large number of the cases receive short sentences of imprisonment without a non-parole period.