Sentencing Snapshot 231: Sentencing Trends for Sexual Assault in the Higher Courts of Victoria 2013-14 to 2017-18

Date of Publication

Sentencing Snapshot no. 231 describes sentencing outcomes for the offence of sexual assault in the County Court of Victoria from 2013-14 to 2017-18.

You can also access statistics for sexual assault on SACStat.

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


Snapshot 231: Sexual Assault

Introduction

This Sentencing Snapshot describes sentencing outcomes[1] for the offence of sexual assault[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 assault and other offences is available on Sentencing Advisory Council Statistics (SACStat).

A person who intentionally touches another person in sexual circumstances and without the other person’s consent is guilty of the offence of sexual assault.

Sexual assault is an indictable offence that carries a maximum penalty of 10 years’ imprisonment[5and/or a fine of 1,200 penalty units.[6] Indictable offences are more serious offences triable before a judge and jury in the County or Supreme Court. Sexual assault can also be tried summarily by the Magistrates’ Court if the Magistrates’ Court considers it appropriate and the accused consents.

Sexual assault was the principal offence[7] in 1.1% of cases sentenced in the higher courts between 2013–14 and 2017–18.

People Sentenced

From 2013–14 to 2017–18, 94 people were sentenced in the higher courts for a principal offence of sexual assault.

Figure 1 shows the number of people sentenced for the principal offence of sexual assault by financial year. There were 16 people sentenced for this offence in 2017–18, the same number as the previous year. Both 2016–17 and 2017–18 saw the lowest number of people sentenced for this offence over the five years. The number of people sentenced was highest in 2015–16 (22 people).

Figure 1: The number of people sentenced for sexual assault, by financial year, 2013–14 to 2017–18

Financial Year Total
2013-14 21
2014-15 19
2015-16 22
2016-17 16
2017-18 16
Total 94

Sentence Types and Trends

Figure 2 shows the total number of people sentenced for sexual assault and the number receiving an immediate custodial sentence. An immediate custodial sentence involves at least some element of immediate imprisonment or detention.[8] Over the five-year period, 40% of people were given an immediate custodial sentence.

Figure 2: The number of people sentenced for sexual assault and the number receiving an immediate custodial sentence, 2013–14 to 2017–18

Financial Year Immediate custodial sentence People sentenced
2013-14 13 21
2014-15 7 19
2015-16 6 22
2016-17 8 16
2017-18 4 16
Total 38 94

Table 1 shows the number of people sentenced for sexual assault 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.[9] Changes to community correction orders have also influenced the sentencing trends over the five years covered by this Snapshot.[10]

Over the five-year period, just over one-third of people sentenced for sexual assault received a principal sentence of imprisonment (35% or 33 of 94 people). Of these, 23 people received a sentence of imprisonment alone, 7 people received imprisonment combined with a community correction order, 2 people received an aggregate sentence of imprisonment and 1 person 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.[11]

The percentage of people receiving any form of imprisonment for the principal offence of sexual assault declined sharply from 57% in 2013–14 to 19% in 2017–18. In particular, people receiving a term of imprisonment combined with a community correction order grew in the four years to 2016–17, increasing from 0% in 2013–14 to 19% in 2016–17, before declining to 6% in 2017–18. The use of community correction orders (without imprisonment) also grew over the five-year period, increasing from 29% in 2013–14 to 56% in 2017–18.

Table 1: The number and percentage of people sentenced for sexual assault, by sentence type, 2013–14 to 2017–18

Sentence type 2013–14 2014–15 2015–16 2016–17 2017–18 Total
Community correction order 6 (29%) 6 (32%) 13 (59%) 5 (31%) 9 (56%) 39 (41%)
Imprisonment 10 (48%) 5 (26%) 3 (14%) 3 (19%) 2 (13%) 23 (24%)
Imprisonment and community correction order (combined) 0 (–) 1 (5%) 3 (14%) 2 (13%) 1 (6%) 7 (7%)
Wholly suspended sentence 2 (10%) 1 (5%) 1 (5%) 1 (6%) 0 (–) 5 (5%)
Fine 0 (–) 1 (5%) 1 (5%) 1 (6%) 1 (6%) 4 (4%)
Partially suspended sentence 1 (5%) 1 (5%) 0 (–) 1 (6%) 0 (–) 3 (3%)
Adjourned undertaking without conviction 0 (–) 2 (11%) 0 (–) 1 (6%) 0 (–) 3 (3%)
Aggregate imprisonment 2 (10%) 0 (–) 0 (–) 0 (–) 0 (–) 2 (2%)
Adjourned undertaking with conviction 0 (–) 0 (–) 1 (5%) 0 (–) 1 (6%) 2 (2%)
Non-custodial supervision order 0 (–) 1 (5%) 0 (–) 0 (–) 1 (6%) 2 (2%)
Aggregate imprisonment and community correction order (combined) 0 (–) 0 (–) 0 (–) 1 (6%) 0 (–) 1 (1%)
Custodial supervision order 0 (–) 0 (–) 0 (–) 0 (–) 1 (6%) 1 (1%)
Residential treatment order 0 (–) 0 (–) 0 (–) 1 (6%) 0 (–) 1 (1%)
Unconditional release 0 (–) 1 (5%) 0 (–) 0 (–) 0 (–) 1 (1%)
People sentenced 21 19 22 16 16 94

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 assault must be considered in this broader context.

The following sections analyse the use of imprisonment for the offence of sexual assault from 2013–14 to 2017–18.

Principal Sentence of Imprisonment

A total of 33 people received a principal sentence of imprisonment for sexual assault. Of these, 30 people received a non-aggregate term of imprisonment and 3 people received an aggregate term. There were 8 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.[12] Imprisonment terms ranged from 3 months to 4 years and 6 months, while the median length of imprisonment was 1 year (meaning that half of the imprisonment terms were below 1 year and half were above).

The most common length of imprisonment was 1 to less than 2 years (17 people).

Figure 3: The number of people sentenced to imprisonment for sexual assault, by length of imprisonment term, 2013–14 to 2017–18

Imprisonment length Number of people
Less than 1 year 9
1 to less than 2 years 17
2 to less than 3 years 1
3 to less than 4 years 2
4 to less than 5 years 1
People sentenced 30

As shown in Figure 4, the average (mean) length of imprisonment imposed on people sentenced for sexual assault ranged from 8 months in 2014–15 to 2 years and 2 months in 2017–18. Between 2014–15 and 2017–18, the average length of imprisonment for sexual assault grew incrementally in each year. In comparison, the number of people sentenced to non-aggregate imprisonment for sexual assault dropped almost three-quarters over the five-year period, decreasing from 10 people in 2013–14 to 3 people in 2017–18.

Figure 4: The average (mean) length of imprisonment imposed on people sentenced for sexual assault, 2013–14 to 2017–18

Financial year Number of people Average length of imprisonment term
2013-14 10 1 year and 5 months
2014-15 6 8 months
2015-16 6 1 year and 1 month
2016-17 5 1 year and 7 months
2017-18 3 2 years and 2 months

Other Offences Finalised at the Same Hearing

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

Figure 5 shows the number of people sentenced for the principal offence of sexual assault by the total number of sentenced offences per person. The number of sentenced offences per person ranged from 1 to 13, while the median was 2 offences. There were 43 people (46%) sentenced for the single offence of sexual assault. The average number of offences per person was 2.50.

Figure 5: The number of people sentenced for the principal offence of sexual assault, by the number of sentenced offences per person, 2013–14 to 2017–18

Number of offences Number of people
1 43
2 26
3 9
4 3
5-9 10
10+ 3
Total 94

Table 2 shows the 10 most common offences, by number and percentage, for people sentenced for sexual assault. The last column sets out the average number of offences sentenced per person. For example, 6 of the total 94 people (6.4%) also received sentences for intentionally destroying or damaging property. On average, they were sentenced for 1.50 counts of intentionally destroying or damaging property.

Table 2: The number and percentage of people sentenced for the principal offence of sexual assault, by the most common offences that were sentenced and the average number of those offences sentenced, 2013–14 to 2017–18

Offence Number of cases Percentage of cases Average number of proven offences per case
1. Sexual assault 94 100 1.54
2. Intentionally destroy/damage property (criminal damage) 6 6.4 1.50
3. Causing injury recklessly 5 5.3 1.20
4. Common Law assault 5 5.3 1.00
5. Stalking 3 3.2 1.33
6. Making threat to kill 3 3.2 1.33
7. Theft 3 3.2 1.00
8. Causing injury intentionally 3 3.2 1.00
9. Fail to answer bail 2 2.1 1.50
10. Make threat to inflict serious injury 2 2.1 1.50
People sentenced 94 100 2.50

Total Effective Imprisonment Terms

Figure 6 shows the number of people sentenced to imprisonment for sexual assault by length of total effective imprisonment term. The total effective imprisonment terms ranged from 2 months and 5 days (combined with a community correction order) to 4 years and 9 months, while the median total effective imprisonment term was 1 year and 6 months (meaning that half of the total effective imprisonment terms were below 1 year and 6 months and half were above).

The most common total effective imprisonment term was 1 to less than 2 years (14 people).

Figure 6: The number of people sentenced to imprisonment for sexual assault, by length of total effective imprisonment term, 2013–14 to 2017–18

Total effective imprisonment length Number of people
Less than 1 year 9
1 to less than 2 years 14
2 to less than 3 years 6
3 to less than 4 years 1
4 to less than 5 years 3
People sentenced 33

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 33 people who were sentenced to imprisonment for sexual assault, 24 were eligible to have a non-parole period fixed.[13] Of these people, 16 were given a non-parole period (67%).[14] Figure 7 shows the number of people sentenced to imprisonment for sexual assault by length of non-parole period. Non-parole periods ranged from 6 months to 3 years and 2 months, while the median non-parole period was 1 year and 1 month (meaning that half of the non-parole periods were below 1 year and 1 month and half were above).

The most common non-parole period was 1 to less than 2 years (9 people); however, the most common outcome was that no non-parole period was imposed (16 people).

Figure 7: The number of people sentenced to imprisonment for sexual assault, by length of non-parole period, 2013–14 to 2017–18

Non-parole period Number of people
Less than 1 year 3
1 to less than 2 years 9
2 to less than 3 years 3
3 to less than 4 years 1
No non-parole period 16
Total people 32

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.[15]

From 2013–14 to 2017–18, the average length of total effective sentences for all people ranged from 11 months in 2014–15 to 2 years and 8 months in 2017–18. Over the same period, the average length of non-parole periods ranged from 11 months in 2015–16 to 2 years and 4 months in 2016–17. There was a gradual increase in total effective sentence lengths in the four years to 2017–18, increasing from 11 months in 2014–15 to 2 years and 8 months in 2017–18. The average total effective sentence in Figure 8 concurs with the trends observed for the average non-aggregate imprisonment lengths in Figure 4.

Figure 8: The average total effective sentence and the average non-parole period imposed on people sentenced to imprisonment for sexual assault, 2013–14 to 2017–18

Financial year Average total effective length Average non-parole period
2013-14 2 years and 1 month 1 year and 2 months
2014-15 11 months 1 year and 0 months
2015-16 1 year and 1 month 11 months
2016-17 1 year and 8 months 2 years and 4 months
2017-18 2 year and 8 months 2 years and 2 months

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

Summary

From 2013–14 to 2017–18, 94 people were sentenced for sexual assault in the higher courts. Of these people, 33 (35%) were given a principal sentence of imprisonment.

People with a principal offence of sexual assault 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 1 year and 6 months, while the median principal imprisonment length was 1 year.

Total effective imprisonment lengths ranged from 2 months and 5 days (combined with a community correction order) to 4 years and 9 months, and non-parole periods (where imposed) ranged from 6 months to 3 years and 2 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. 208, which describes sentencing trends for sexual assault (formerly known as ‘indecent assault’) 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. Sexual assault is currently located in section 40 of the Crimes Act 1958 (Vic). Prior to 1 July 2015, the offence was located in section 39 of the Crimes Act 1958 (Vic) and was called ‘indecent assault’. This Snapshot includes both versions of this offence if they were sentenced during the five-year reference period.

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, 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.

5Crimes Act 1958 (Vic) s 40 and Crimes Act 1958 (Vic) s 39 (repealed).

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. 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.

8. An immediate custodial sentence includes imprisonment, imprisonment combined with a community correction order, aggregate imprisonment, aggregate imprisonment combined with a community correction order, a custodial supervision order, a residential treatment order and a partially suspended sentence.

9. 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.

10. 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.

11. Refer to Endnote 7.

12. 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 assault.

13. A total of 9 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.

14. One person was 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 this case. The non-parole period for this person is excluded from the analysis. A non-parole period was not set for 7 people who were eligible for a non-parole period.

15. In 2014–15 and 2016–17, the average total effective imprisonment lengths was lower than the average non-parole periods. This may occur when a large number of the cases receive short sentences of imprisonment without a non-parole period.

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