Sentencing Trends for Sexual Penetration of a Child Aged 12 to 16 in the Higher Courts of Victoria 2013-14 to 2017-18

Sentencing Snapshot 234
Date of Publication: 
22 May 2019

Sentencing Snapshot no. 234 describes sentencing outcomes for the offence of sexual penetration of a child aged 12 to 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 sexual penetration of a child aged 12 to 16 on SACStat.

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

Introduction

This Sentencing Snapshot describes sentencing outcomes1 for the offence of sexual penetration of a child aged 12 to 16 2 in the County Court of Victoria from 2013–14 to 2017–18.3 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 sexual penetration of a child aged 12 to 16 and other offences is available on Sentencing Advisory Council Statistics Online (SACStat).

A person who takes part in an act of sexual penetration of a child aged between 12 and 16 is guilty of an indictable offence. Indictable offences are more serious offences triable before a judge and jury in the County or Supreme Court. The maximum penalty for this offence is 15 years’ imprisonment5 and/or a fine of 1,800 penalty units.6 Offences committed on or after 1 February 2018 are also subject to a standard sentence of 6 years.7

Sexual penetration of a child aged 12 to 16 was the principal offence8 in 3.4% of cases sentenced in the higher courts between 2013–14 and 2017–18.

People sentenced

From 2013–14 to 2017–18, 301 people were sentenced in the higher courts for a principal offence of sexual penetration of a child aged 12 to 16.

Figure 1 shows the number of people sentenced for the principal offence of sexual penetration of a child aged 12 to 16, by financial year. There were 57 people sentenced for this offence in 2017–18, down by 2 people from the previous year. The number of people sentenced was highest in 2014–15 (74 people) and lowest in 2015–16 (51 people).

Figure 1: The number of people sentenced for sexual penetration of a child aged 12 to 16, by financial year, 2013–14 to 2017–18

Financial Year Total
2013-14 60
2014-15 74
2015-16 51
2016-17 59
2017-18 57
Total 301

Sentence types and trends

Figure 2 shows the total number of people sentenced for sexual penetration of a child aged 12 to 16 and the number receiving an immediate custodial sentence. An immediate custodial sentence involves at least some element of immediate imprisonment or detention.9 Over the five-year period, approximately half of the people were given an immediate custodial sentence.

Figure 2: The number of people sentenced for sexual penetration of a child aged 12 to 16, and the number receiving an immediate custodial sentence, 2013–14 to 2017–18

Financial Year Immediate custodial sentence People sentenced
2013-14 20 60
2014-15 41 74
2015-16 23 51
2016-17 35 59
2017-18 33 57
Total 152 301

Table 1 shows the number of people sentenced for sexual penetration of a child aged 12 to 16 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.10 Changes to community correction orders have also influenced the sentencing trends over the five years covered by this Snapshot.11

Over the five-year period, almost half of the people sentenced for sexual penetration of a child aged 12 to 16 received a principal sentence of imprisonment (49% or 147 of 301 people). Of these, 117 people received a sentence of imprisonment alone, 23 received imprisonment combined with a community correction order and 7 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.12

The percentage of people receiving any form of imprisonment for the principal offence of sexual penetration of a child aged 12 to 16 was relatively steady, remaining at above 50% of the sentencing outcomes over the five years, aside from 2013–14 and 2015–16. People receiving a term of imprisonment (including aggregate imprisonment) combined with a community correction order fluctuated over the same period, from 0% in 2013–14 to 7% in 2017–18, after peaking at 19% in 2016–17. In comparison, the use of community correction orders (without imprisonment) decreased, from 53% in 2013–14 to 32% in 2017–18. This downward trend was also observed in the number of people receiving this type of sentence, decreasing from 32 people in 2013–14 to 18 people in 2017–18.

Table 1: The number and percentage of people sentenced for sexual penetration of a child aged 12 to 16, by sentence type, 2013–14 to 2017–18

Sentence type 2013–14 2014–15 2015–16 2016–17 2017–18 Total
Imprisonment 19 (32%) 29 (39%) 17 (33%) 23 (39%) 29 (51%) 117 (39%)
Community correction order 32 (53%) 26 (35%) 21 (41%) 19 (32%) 18 (32%) 116 (39%)
Imprisonment and community correction order (combined) 0 (–) 9 (12%) 2 (4%) 9 (15%) 3 (5%) 23 (8%)
Adjourned undertaking without conviction 1 (2%) 1 (1%) 3 (6%) 3 (5%) 3 (5%) 11 (4%)
Wholly suspended sentence 6 (10%) 2 (3%) 1 (2%) 1 (2%) 1 (2%) 11 (4%)
Aggregate imprisonment and community correction order (combined) 0 (–) 1 (1%) 3 (6%) 2 (3%) 1 (2%) 7 (2%)
Adjourned undertaking with conviction 1 (2%) 2 (3%) 1 (2%) 1 (2%) 2 (4%) 7 (2%)
Partially suspended sentence 1 (2%) 2 (3%) 0 (–) 0 (–) 0 (–) 3 (<1%)
Aggregate community correction order 0 (–) 1 (1%) 2 (4%) 0 (–) 0 (–) 3 (<1%)
Youth justice centre order 0 (–) 0 (–) 1 (2%) 1 (2%) 0 (–) 2 (<1%)
Non-custodial supervision order 0 (–) 1 (1%) 0 (–) 0 (–) 0 (–) 1 (<1%)
People sentenced 60 74 51 59 57 301

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 sexual penetration of a child aged 12 to 16 must be considered in this broader context.

The following sections analyse the use of imprisonment for the offence of sexual penetration of a child aged 12 to 16 from 2013–14 to 2017–18.

Principal sentence of imprisonment

A total of 147 people received a principal sentence of imprisonment for sexual penetration of a child aged 12 to 16. Of these, 140 people received a non-aggregate term of imprisonment and 7 people received an aggregate term. There were 30 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.13 Imprisonment terms ranged from 1 month (combined with a community correction order) to 6 years, while the median length of imprisonment was 2 years and 9 months (meaning that half of the imprisonment terms were below 2 years and 9 months and half were above).

The most common length of imprisonment was 3 to less than 4 years (37 people).

Figure 3: The number of people sentenced to imprisonment for sexual penetration of a child aged 12 to 16, by length of imprisonment term, 2013–14 to 2017–18

Imprisonment length Number of people
Less than 1 year 20
1 to less than 2 years 21
2 to less than 3 years 31
3 to less than 4 years 37
4 to less than 5 years 22
5 to less than 6 years 7
6 to less than 7 years 2
People sentenced 140

As shown in Figure 4, the average (mean) length of imprisonment imposed on people sentenced for sexual penetration of a child aged 12 to 16 ranged from 2 years and 2 months in 2014–15 to 3 years and 3 months in 2017–18. The average length of imprisonment for sexual penetration of a child aged 12 to 16 grew considerably in 2017–18, representing a 39% increase from the combined average of 2 years and 4 months for the four previous years from 2013–14 to 2016–17.

Figure 4: The average (mean) length of imprisonment imposed on people sentenced for sexual penetration of a child aged 12 to 16, 2013–14 to 2017–18

Financial year Number of people Average length of imprisonment term
2013-14 19 2 years and 7 months
2014-15 38 2 years and 2 months
2015-16 19 2 years and 6 months
2016-17 32 2 years and 4 months
2017-18 32 3 years and 3 months

Other offences finalised at the same hearing

Sometimes people prosecuted for sexual penetration of a child aged 12 to 16 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 sexual penetration of a child aged 12 to 16. The section includes data on all people sentenced for a principal offence of sexual penetration of a child aged 12 to 16, not just those who received imprisonment.

Figure 5 shows the number of people sentenced for the principal offence of sexual penetration of a child aged 12 to 16 by the total number of sentenced offences per person. The number of sentenced offences per person ranged from 1 to 25, while the median was 2 offences. There were 92 people (30.6%) sentenced for the single offence of sexual penetration of a child aged 12 to 16. The average number of offences per person was 3.70.

Figure 5: The number of people sentenced for the principal offence of sexual penetration of a child aged 12 to 16, by the number of sentenced offences per person, 2013–14 to 2017–18

Number of offences Number of people
1 92
2 63
3 44
4 28
5-9 49
10-19 22
20+ 3
Total 301

Table 2 shows the 10 most common offences, by number and percentage, for people sentenced for sexual penetration of a child aged 12 to 16. The last column sets out the average number of offences sentenced per person. For example, 94 of the total 301 people (31.2%) also received sentences for indecent act with a child under 16. On average, they were sentenced for 2.57 counts of indecent act with a child under 16.

Table 2: The number and percentage of people sentenced for the principal offence of sexual penetration of a child aged 12 to 16, 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. Sexual penetration of a child aged 12 to 16 301 100 1.90
2. Indecent act with a child under 16 94 31.2 2.57
3. Knowingly possess child pornography 21 7.0 1.00
4. Use a carriage service to transmit indecent communications to a person aged under 16 11 3.7 3.45
5. Fail to comply with reporting obligations under Sex Offenders Registration Act 2004 (Vic) 8 2.7 1.50
6. Possess a drug of dependence 8 2.7 1.38
7. Make or produce child pornography 8 2.7 1.00
8. Contravene a conduct condition of bail 7 2.3 2.57
9. Use a carriage service to groom a child under 16 for sexual activity 7 2.3 1.86
10. Use a carriage service for child pornography material 7 2.3 1.57
People sentenced 301 100 3.70

Total effective imprisonment terms

Figure 6 shows the number of people sentenced to imprisonment for sexual penetration of a child aged 12 to 16 by length of total effective imprisonment term. The total effective imprisonment terms ranged from 1 month (combined with a community correction order) to 14 years, while the median total effective imprisonment term was 3 years and 6 months (meaning that half of the total effective imprisonment terms were below 3 years and 6 months and half were above).

The most common total effective imprisonment term was 4 to less than 5 years (24 people).

Figure 6: The number of people sentenced to imprisonment for sexual penetration of a child aged 12 to 16, by length of total effective imprisonment term, 2013–14 to 2017–18

Total effective imprisonment length Number of people
Less than 1 year 22
1 to less than 2 years 17
2 to less than 3 years 22
3 to less than 4 years 20
4 to less than 5 years 24
5 to less than 6 years 11
6 to less than 7 years 15
7 to less than 8 years 5
8 to less than 9 years 3
9 to less than 10 years 4
10 to less than 11 years 3
11 to less than 12 years 0
12 to less than 13 years 0
13 to less than 14 years 0
14 to less than 15 years 1
People sentenced 147

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 147 people who were sentenced to imprisonment for sexual penetration of a child aged 12 to 16, 125 were eligible to have a non-parole period fixed14 Of these people, 108 were given a non-parole period (86%).15 Figure 7 shows the number of people sentenced to imprisonment for sexual penetration of a child aged 12 to 16 by length of non-parole period. Non-parole periods ranged from 6 months to 10 years and 6 months, while the median non-parole period was 2 years and 6 months (meaning that half of the non-parole periods were below 2 years and 6 months and half were above).

The most common non-parole periods imposed were 1 to less than 2 years and 2 to less than 3 years (29 people each); however, the most common outcome was that no non-parole period was imposed (36 people)

Figure 7: The number of people sentenced to imprisonment for sexual penetration of a child aged 12 to 16, by length of non-parole period, 2013–14 to 2017–18

Non-parole period Number of people
Less than 1 year 5
1 to less than 2 years 29
2 to less than 3 years 29
3 to less than 4 years 16
4 to less than 5 years 14
5 to less than 6 years 6
6 to less than 7 years 6
7 to less than 8 years 2
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 36
Total people 144

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.16

From 2013–14 to 2017–18, the average length of total effective sentences for all people ranged from 3 years in 2015–16 to 4 years and 10 months in 2017–18. Over the same period, the average length of non-parole periods ranged from 2 years and 4 months in 2014–15 to 3 years and 3 months in 2017–18. The average total effective sentence length and non-parole period in 2017–18 represent the highest averages over the five years.

Figure 8: The average total effective sentence and the average non-parole period imposed on people sentenced to imprisonment for sexual penetration of a child aged 12 to 16, 2013–14 to 2017–18

Financial year Average total effective length Average non-parole period
2013-14 4 years and 7 months 3 years and 0 months
2014-15 3 years and 2 months 2 years and 4 months
2015-16 3 years and 0 months 3 years and 2 months
2016-17 3 years and 2 months 2 years and 8 months
2017-18 4 years and 10 months 3 years and 3 months

Further data on total effective sentences of imprisonment and corresponding non-parole periods for sexual penetration of a child aged 12 to 16 is available on SACStat. Data on the length of non-imprisonment sentence types, such as community correction orders, for sexual penetration of a child aged 12 to 16 is also available on SACStat.

Summary

From 2013–14 to 2017–18, 301 people were sentenced for sexual penetration of a child aged 12 to 16 in the higher courts. Of these people, 147 (49%) were given a principal sentence of imprisonment.

People with a principal offence of sexual penetration of a child aged 12 to 16 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 3 years and 6 months, while the median principal imprisonment length was 2 years and 9 months.

Total effective imprisonment lengths ranged from 1 month (combined with a community correction order) to 14 years, 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 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. 209, which describes sentencing trends for sexual penetration of a child aged 12 to 16 from 2011–12 to 2015–16 and also an update on Sentencing Snapshot No. 182, which describes sentencing trends for sexual penetration of a child under care from 2009–10 to 2013–14.

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

2. The offence of sexual penetration of a child aged 12 to 16 has undergone several changes over time. Prior to 17 March 2010, this offence was known as ‘sexual penetration of a child aged between 10 and 16’ (section 45 (2)(c) Crimes Act 1958 (Vic)) and had a maximum penalty of 10 years’ imprisonment. On 17 March 2010, the offence was renamed ‘sexual penetration of a child aged between 12 and 16’. On 1 July 2017, this offence was transferred to section 49B of the Crimes Act 1958 (Vic), with a new maximum penalty of 15 years’ imprisonment. Additionally, the separate offence of ‘sexual penetration of a child aged 12 and 16 under care, supervision or authority’ was repealed on the same date, with any new charges of this offence to be prosecuted under section 49B (with the ‘care, supervision or authority’ of the offender acting as a possible aggravating factor for sentencing purposes). To maintain meaningful comparison over the reference period, this Snapshot includes the offence of sexual penetration of a child aged between 10 and 16, sexual penetration of a child aged between 12 and 16 and sexual penetration of a child aged 12 to 16 under care, supervision, or authority, provided the offence was sentenced in the higher courts of Victoria from 2013–14 to 2017–18.

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.

The raw data used for offences of sexual penetration of a child under 16 does not completely distinguish between the three specific offences within this category: sexual penetration of a child aged 12 to 16, sexual penetration of a child aged under 12 and the repealed offence of sexual penetration of a child under care, supervision or authority. Rather, these offences are grouped under the broader category of sexual penetration of a child under 16. In order to determine the specific offence for such cases, the Council uses information in sentencing remarks. However, at the time of publication, sentencing remarks for some cases were unavailable or provided insufficient detail to distinguish each category of offending (21 of 392 cases or 5%). These cases have been excluded from the relevant Sentencing Snapshots.

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, the 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. Prior to 1 July 2017, sexual penetration of a child aged 12 to 16 was an offence under section 45(2)(c) of the Crimes Act 1958 (Vic) and had a maximum penalty of 10 years’ imprisonment. On 1 July 2017, it was repealed and replaced by a similar offence of ‘sexual penetration of a child under the age of 16’ under section 49B of the Crimes Act 1958 (Vic) with an increased maximum penalty of 15 years’ imprisonment. The offence of ‘sexual penetration of a child aged 12 to 16 and under care/supervision/authority’ under section 45(2)(b) of the Crimes Act 1958 (Vic) was also repealed, and is now also included in section 49B, but the maximum penalty remains at 15 years’ imprisonment.

6. 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.

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

8. 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.

9. 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.

10. 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.

11. 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.

12. Refer to Endnote 8.

13. 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 sexual penetration of a child aged 12 to 16.

14. A total of 22 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.

15. Three 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 14 people who were eligible for a non-parole period.

16. 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.