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

Sentencing Snapshot 235
Date of Publication: 
22 May 2019

Sentencing Snapshot no. 235 describes sentencing outcomes for the offence of sexual penetration of a child aged under 12 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 under 12 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 under 12 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 under 12 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 under the age of 12 is guilty of an indictable offence. Sexual penetration of a child aged under 12 carries a maximum penalty of 25 years’ imprisonment5 and/or a fine of 3,000 penalty units.6 Sexual penetration of a child aged under 12 is a Category 1 offence, which means that a court must impose a custodial sentence for that offence.7 Offences committed on or after 1 February 2018 are also subject to a standard sentence of 10 years.8

Sexual penetration of a child aged under 12 was the principal offence9 in 0.8% of cases sentenced in the higher courts between 2013–14 and 2017–18.

People sentenced

From 2013–14 to 2017–18, 70 people were sentenced in the higher courts for a principal offence of sexual penetration of a child aged under 12.

Figure 1 shows the number of people sentenced for the principal offence of sexual penetration of a child aged under 12, by financial year. There were 12 people sentenced for this offence in 2017–18, up by 6 people from the previous year. The number of people sentenced was highest in 2014–15 and 2015–16 (20 people each), and lowest in 2016–17 (6 people).

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

Financial Year Total
2013-14 12
2014-15 20
2015-16 20
2016-17 6
2017-18 12
Total 70

Sentence types and trends

Figure 2 shows the total number of people sentenced for sexual penetration of a child aged under 12 and the number receiving an immediate custodial sentence. An immediate custodial sentence involves at least some element of immediate imprisonment or detention.10 Over the five-year period, 81% of people were given an immediate custodial sentence.

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

Financial Year Immediate custodial sentence People sentenced
2013-14 8 12
2014-15 16 20
2015-16 17 20
2016-17 5 6
2017-18 11 12
Total 57 70

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

Over the five-year period, the majority of people sentenced for sexual penetration of a child aged under 12 received a principal sentence of imprisonment (77% or 54 of 70 people). Of these, 50 people received a sentence of imprisonment alone, 2 people received imprisonment combined with a community correction order and the remaining 2 people received an aggregate sentence of imprisonment. The principal sentence is the sentence imposed for the charge that is the principal offence.13

The percentage of people receiving any form of imprisonment for the principal offence of sexual penetration of a child aged under 12 sharply increased over the five years, from 58% in 2013–14 to 92% in 2017–18, despite temporarily dropping to 67% in 2016–17. The majority of people received a standalone sentence of imprisonment. People infrequently received terms of imprisonment combined with community correction order throughout the five-year period; this combination was only imposed once in 2014–15 (5%) and once in 2017–18 (8%). In comparison, the use of community correction orders (without imprisonment) gradually declined within the first three years, decreasing from 17% in 2013–14 to 15% in 2015–16, before decreasing to 0% over the last two years of the five-year period.

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

Sentence type 2013–14 2014–15 2015–16 2016–17 2017–18 Total
Imprisonment 7 (58%) 14 (70%) 15 (75%) 4 (67%) 10 (83%) 50 (71%)
Community correction order 2 (17%) 3 (15%) 3 (15%) 0 (–) 0 (–) 8 (11%)
Wholly suspended sentence 2 (17%) 1 (5%) 0 (–) 0 (–) 1 (8%) 4 (6%)
Aggregate imprisonment 0 (–) 0 (–) 2 (10%) 0 (–) 0 (–) 2 (3%)
Imprisonment and community correction order (combined) 0 (–) 1 (5%) 0 (–) 0 (–) 1 (8%) 2 (3%)
Partially suspended sentence 0 (–) 1 (5%) 0 (–) 1 (17%) 0 (–) 2 (3%)
Youth justice centre order 1 (8%) 0 (–) 0 (–) 0 (–) 0 (–) 1 (1%)
Adjourned undertaking without conviction 0 (–) 0 (–) 0 (–) 1 (17%) 0 (–) 1 (1%)
People sentenced 12 20 20 6 12 70

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 under 12 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 under 12 from 2013–14 to 2017–18.

Principal sentence of imprisonment

A total of 54 people received a principal sentence of imprisonment for sexual penetration of a child aged under 12. Of these, 52 people received a non-aggregate term of imprisonment and 2 people received an aggregate term. There were 2 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.14 Imprisonment terms ranged from 5 months (combined with a community correction order) to 10 years, while the median length of imprisonment was 4 years (meaning that half of the imprisonment terms were below 4 years and half were above).

The most common length of imprisonment was 4 to less than 5 years (14 people).

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

Imprisonment length Number of people
Less than 1 year 1
1 to less than 2 years 1
2 to less than 3 years 7
3 to less than 4 years 11
4 to less than 5 years 14
5 to less than 6 years 11
6 to less than 7 years 4
7 to less than 8 years 1
8 to less than 9 years 1
9 to less than 10 years 0
10 to less than 11 years 1
People sentenced 52

As shown in Figure 4, the average (mean) length of imprisonment imposed on people sentenced for sexual penetration of a child aged under 12 ranged from 3 years and 6 months in 2014–15 to 6 years in 2016–17. Apart from 2016–17, the average length of imprisonment remained relatively steady, ranging from 3 years and 6 months to 4 years and 3 months. The number of people receiving a non-aggregate term of imprisonment for sexual penetration of a child aged under 12 increased from 7 people in 2013–14 to 15 people over the next two years, before decreasing to 4 people in 2016–17 and climbing again to 11 people in 2017–18.

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

Financial year Number of people Average length of imprisonment term
2013-14 7 4 years and 0 months
2014-15 15 3 years and 6 months
2015-16 15 4 years and 3 months
2016-17 4 6 years and 0 months
2017-18 11 4 years and 0 months

Other offences finalised at the same hearing

Sometimes people prosecuted for sexual penetration of a child aged under 12 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 under 12. The section includes data on all people sentenced for a principal offence of sexual penetration of a child aged under 12, 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 under 12 by the total number of sentenced offences per person. The number of sentenced offences per person ranged from 1 to 22, while the median was 4 offences. There were 15 people (21.4%) sentenced for the single offence of sexual penetration of a child aged under 12. The average number of offences per person was 5.10.

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

Number of offences Number of people
1 15
2 8
3 6
4 11
5-9 22
10-19 7
20+ 1
Total 70

Table 2 shows the 10 most common offences, by number and percentage, for people sentenced for sexual penetration of a child aged under 12. The last column sets out the average number of offences sentenced per person. For example, 45 of the total 70 people (64.3%) also received sentences for committing an indecent act with a child under 16. On average, they were sentenced for 2.91 counts of committing an 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 under 12, 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 under 12 70 100 1.91
2. Indecent act with a child under 16 45 64.3 2.91
3. Sexual penetration of a child aged 12 to 16 9 12.9 1.67
4. Sexual penetration of a child aged 12 to 16 and under care/supervision/authority 7 10.0 1.71
5. Indecent assault (Crimes Act 1958 (Vic) s 44 (repealed)) 6 8.6 2.67
6. Knowingly possess child pornography 6 8.6 1.00
7. Make or produce child pornography 5 7.1 1.60
8. Fail to comply with reporting obligations under Sex Offenders Registration Act 2004 (Vic) 4 5.7 1.00
9. Attempted sexual penetration of a child aged under 12 2 2.9 2.00
10. Indecent assault (Crimes Act 1958 (Vic) s 39 (repealed)) 2 2.9 1.50
People sentenced 70 100 5.10

Total effective imprisonment terms

Figure 6 shows the number of people sentenced to imprisonment for sexual penetration of a child aged under 12 by length of total effective imprisonment term. The total effective imprisonment terms ranged from 8 months (combined with a community correction order) to 17 years and 9 months, while the median total effective imprisonment term was 6 years and 5 months (meaning that half of the total effective imprisonment terms were below 6 years and 5 months and half were above).

The most common total effective imprisonment term was 7 to less than 8 years (11 people).

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

Total effective imprisonment length Number of people
Less than 1 year 1
1 to less than 2 years 1
2 to less than 3 years 1
3 to less than 4 years 6
4 to less than 5 years 5
5 to less than 6 years 6
6 to less than 7 years 9
7 to less than 8 years 11
8 to less than 9 years 5
9 to less than 10 years 4
10 to less than 11 years 0
11 to less than 12 years 2
12 to less than 13 years 2
13 to less than 14 years 0
14 to less than 15 years 0
15 to less than 16 years 0
16 to less than 17 years 0
17 to less than 18 years 1
People sentenced 54

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 54 people who were sentenced to imprisonment for sexual penetration of a child aged under 12, 53 were eligible to have a non-parole period fixed.15 Of these people, 49 were given a non-parole period (92%).16 Figure 7 shows the number of people sentenced to imprisonment for sexual penetration of a child aged under 12 by length of non-parole period. Non-parole periods ranged from 1 year and 6 months to 13 years, while the median non-parole period was 4 years and 3 months (meaning that half of the non-parole periods were below 4 years and 3 months and half were above).

The most common non-parole periods imposed was 2 to less than 3 years and 4 to less than 5 years (11 people each).

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

Non-parole period Number of people
1 to less than 2 years 2
2 to less than 3 years 11
3 to less than 4 years 6
4 to less than 5 years 11
5 to less than 6 years 10
6 to less than 7 years 3
7 to less than 8 years 1
8 to less than 9 years 1
9 to less than 10 years 3
10 to less than 11 years 0
11 to less than 12 years 0
12 to less than 13 years 0
13 to less than 14 years 1
No non-parole period 2
Total people 51

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 2013–14 to 2017–18, the average length of total effective sentences for all people ranged from 5 years and 11 months in 2014–15 to 8 years and 10 months in 2016–17. Over the same period, the average length of non-parole periods ranged from 4 years and 1 month in 2014–15 to 6 years in 2016–17. The average total effective sentence length in Figure 8 coincides with the trends observed in the non-average imprisonment lengths in Figure 4, whereby the average length remained relatively stable over the five years, aside from 2016–17.

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 under 12, 2013–14 to 2017–18

Financial year Average total effective length Average non-parole period
2013-14 7 years and 0 months 4 years and 3 months
2014-15 5 years and 11 months 4 years and 1 month
2015-16 6 years and 7 months 4 years and 5 months
2016-17 8 years and 10 months 6 years and 0 months
2017-18 6 years and 1 month 4 years and 9 months

Further data on total effective sentences of imprisonment and corresponding non-parole periods for sexual penetration of a child aged under 12 is available on SACStat.

Summary

From 2013–14 to 2017–18, 70 people were sentenced for sexual penetration of a child aged under 12 in the higher courts. Of these people, 54 (77%) were given a principal sentence of imprisonment.

People with a principal offence of sexual penetration of a child aged under 12 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 6 years and 5 months, while the median principal imprisonment length was 4 years.

Total effective imprisonment lengths ranged from 8 months (combined with a community correction order) to 17 years and 9 months, and non-parole periods (where imposed) ranged from 1 year and 6 months to 13 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 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. 210, which describes sentencing trends for sexual penetration of a child aged under 12 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. The offence of sexual penetration of a child aged under 12 has undergone several changes over time. Prior to 17 March 2010, this offence was known as ‘sexual penetration of a child under the age of 10’ (section 45(2)(a) Crimes Act 1958 (Vic)) and had a maximum penalty of 25 years’ imprisonment. On 17 March 2010, the offence was renamed to ‘sexual penetration of a child under the age of 12’. On 1 July 2017, this offence was transferred to section 49A of the Crimes Act 1958 (Vic), retaining the maximum penalty of 25 years’ imprisonment. This Snapshot includes all three versions of this offence, provided they were 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 under the age of 12 was an offence under section 45(2)(a) of the Crimes Act 1958 (Vic) and had a maximum penalty of 25 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 12’ under section 49A of the Crimes Act 1958 (Vic) with the same maximum penalty of 25 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. Sentencing Act 1991 (Vic) s 5(2G) requires a custodial sentence (imprisonment or another form of custody) to be imposed for this offence when committed on or after 20 March 2017. The court is not allowed to impose an order of imprisonment combined with a community correction order or a non-custodial order such as a community correction order or a fine.

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

9. 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.

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

11. 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.

12. 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.

13. Refer to Endnote 9.

14. 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 under 12.

15. One person was not eligible to have a non-parole period fixed because they were given a total effective sentence length of less than 1 year.

16. 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 1 person who was eligible for a non-parole period.