Sentencing Snapshot 232: Sentencing Trends for Persistent Sexual Abuse of a Child under 16 in the Higher Courts of Victoria 2013-14 to 2017-18

Date of Publication

Sentencing Snapshot no. 232 describes sentencing outcomes for the offence of persistent sexual abuse of 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 persistent sexual abuse on SACStat.

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


Snapshot 232: Persistent Sexual Abuse of a Child under 16

Introduction

This Sentencing Snapshot describes sentencing outcomes[1] for the offence of persistent sexual abuse of a child under 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 persistent sexual abuse of a child under 16 and other offences is available on Sentencing Advisory Council Statistics (SACStat).

A person who is involved in at least three relevant sexual offences with a child under the age of 16 over a specific period is guilty of the offence of persistent sexual abuse of a child under 16. It is not necessary to prove any of the acts with the same degree of specificity as to the date, time, place, circumstances or occasion as would be required if each act were charged as a separate offence.

Persistent sexual abuse of a child under 16 is an indictable offence that carries a maximum penalty of 25 years’ imprisonment[5] and/or a fine of 3,000 penalty units.[6] Indictable offences are more serious offences triable before a judge and jury in the County or Supreme Court. Persistent sexual abuse of a child under 16 is a Category 1 offence, which means that a court must impose a custodial sentence for that offence.[7] Offences of persistent sexual abuse of a child under 16 committed on or after 1 February 2018 are subject to a standard sentence of 10 years.[8]

Persistent sexual abuse of a child under 16 was the principal offence[9] in 0.8% of cases sentenced in the higher courts between 2013–14 and 2017–18.

People Sentenced

From 2013–14 to 2017–18, 69 people were sentenced in the higher courts for a principal offence of persistent sexual abuse of a child under 16.

Figure 1 shows the number of people sentenced for the principal offence of persistent sexual abuse of a child under 16 by financial year. There were 12 people sentenced for this offence in 2017–18, down by 5 people from the previous year. The number of people sentenced was highest in 2016–17 (17 people) and lowest in 2013–14 (9 people).

Figure 1: The number of people sentenced for persistent sexual abuse of a child under 16, by financial year, 2013–14 to 2017–18

Financial Year Total
2013-14 9
2014-15 15
2015-16 16
2016-17 17
2017-18 12
Total 69

Sentence Types and Trends

Figure 2 shows the total number of people sentenced for persistent sexual abuse of a child under 16 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, 93% of people were given an immediate custodial sentence.

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

Financial Year Immediate custodial sentence People sentenced
2013-14 7 9
2014-15 14 15
2015-16 16 16
2016-17 16 17
2017-18 11 12
Total 64 69

Table 1 shows the number of people sentenced for persistent sexual abuse of a child under 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.[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 persistent sexual abuse of a child under 16 received a principal sentence of imprisonment (91% or 63 of 69 people). Of these, 61 people received a sentence of imprisonment alone and 2 people received imprisonment combined with a community correction order. The principal sentence is the sentence imposed for the charge that is the principal offence.[13]

The percentage of people receiving a principal sentence of imprisonment (including imprisonment combined with a community correction order) for this offence increased from 78% of sentencing outcomes in 2013–14 to above 90% for the remaining four years to 2017–18. Over the five years, only two people received a term of imprisonment combined with a community correction order. Similarly, community correction orders (without imprisonment) were utilised very sparingly over the same period, and were only imposed once in 2013–14 (11%), 2014–15 (7%) and 2017–18 (8%).

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

Sentence type 2013–14 2014–15 2015–16 2016–17 2017–18 Total
Imprisonment 7 (78%) 14 (93%) 15 (94%) 14 (82%) 11 (92%) 61 (88%)
Community correction order 1 (11%) 1 (7%) 0 (–) 0 (–) 1 (8%) 3 (4%)
Imprisonment and community correction order (combined) 0 (–) 0 (–) 0 (–) 2 (12%) 0 (–) 2 (3%)
Wholly suspended sentence 1 (11%) 0 (–) 0 (–) 1 (6%) 0 (–) 2 (3%)
Partially suspended sentence 0 (–) 0 (–) 1 (6%) 0 (–) 0 (–) 1 (1%)
People sentenced 9 15 16 17 12 69

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 persistent sexual abuse of a child under 16 must be considered in this broader context.

The following sections analyse the use of imprisonment for the offence of persistent sexual abuse of a child under 16 from 2013–14 to 2017–18.

Principal Sentence of Imprisonment

All 63 people who received a principal sentence of imprisonment for persistent sexual abuse of a child under 16 were sentenced to a non-aggregate term of imprisonment. There were 2 people who received a community correction order in addition to their term of imprisonment.

Figure 3 shows the length of the imprisonment terms for these people. Imprisonment terms ranged from 1 year (combined with a community correction order) to 13 years, while the median length of imprisonment was 6 years (meaning that half of the imprisonment terms were below 6 years and half were above).

The most common lengths of imprisonment were 5 to less than 6 years and 6 to less than 7 years (11 people each).

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

Imprisonment length Number of people
1 to less than 2 years 2
2 to less than 3 years 2
3 to less than 4 years 3
4 to less than 5 years 5
5 to less than 6 years 11
6 to less than 7 years 11
7 to less than 8 years 9
8 to less than 9 years 9
9 to less than 10 years 5
10 to less than 11 years 3
11 to less than 12 years 1
12 to less than 13 years 1
13 to less than 14 years 1
People sentenced 63

As shown in Figure 4, the average (mean) length of imprisonment imposed on people sentenced for persistent sexual abuse of a child under 16 ranged from 5 years and 4 months in 2013–14 to 7 years and 4 months in 2015–16. The average length of imprisonment for persistent sexual abuse of a child under 16 grew incrementally during the initial three years, increasing from 5 years and 4 months in 2013–14 to a peak of 7 years and 4 months in 2015–16. It then fell to 6 years and 2 months in 2016–17 before rising slightly to 6 years and 10 months in 2017–18. The number of people receiving a non-aggregate term of imprisonment more than doubled in the four years to 2016–17, increasing from 7 people in 2013–14 to 16 people in 2016–17, before decreasing to 11 people in 2017–18.

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

Financial year Number of people Average length of imprisonment term
2013-14 7 5 years and 4 months
2014-15 14 6 years and 2 months
2015-16 15 7 years and 4 months
2016-17 16 6 years and 2 months
2017-18 11 6 years and 10 months

Other Offences Finalised at the Same Hearing

Sometimes people prosecuted for persistent sexual abuse of a child under 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 persistent sexual abuse of a child under 16. The section includes data on all people sentenced for a principal offence of persistent sexual abuse of a child under 16, not just those who received imprisonment.

Figure 5 shows the number of people sentenced for the principal offence of persistent sexual abuse of a child under 16 by the total number of sentenced offences per person. The number of sentenced offences per person ranged from 1 to 67, while the median was 2 offences. There were 30 people (43.5%) sentenced for the single offence of persistent sexual abuse of a child under 16. The average number of offences per person was 4.71.

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

Number of offences Number of people
1 30
2 9
3 7
4 8
5-9 7
10-19 5
20-49 2
50+ 1
Total 69

Table 2 shows the 10 most common offences, by number and percentage, for people sentenced for persistent sexual abuse of a child under 16. The last column sets out the average number of offences sentenced per person. For example, 18 of the total 69 people (26.1%) also received sentences for indecent act with a child under 16. On average, they were sentenced for 2.39 counts of indecent act with a child under 16.

Table 2: The number and percentage of people sentenced for the principal offence of persistent sexual abuse of a child under 16, 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. Persistent sexual abuse of a child under 16 69 100 1.22
2. Indecent act with a child under 16 18 26.1 2.39
3. Make or produce child pornography 13 18.8 2.46
4. Knowingly possess child pornography 9 13.0 1.00
5. Incest by parent/step-parent/lineal ancestor 5 7.2 3.80
6. Sexual penetration of a child aged 12 to 16 5 7.2 2.80
7. Sexual penetration of a child aged under 12 3 4.3 4.00
8. Indecent assault (Crimes Act 1958 (Vic) s 39 (repealed)) 3 4.3 2.00
9. Common Law assault 2 2.9 7.50
10. Fail to comply with reporting obligations under Sex Offenders Registration Act 2004 (Vic) 2 2.9 4.00
People sentenced 69 100 4.71

Total Effective Imprisonment Terms

Figure 6 shows the number of people sentenced to imprisonment for persistent sexual abuse of a child under 16 by length of total effective imprisonment term. The total effective imprisonment terms ranged from 1 year (combined with a community correction order) to 22 years, while the median total effective imprisonment term was 8 years (meaning that half of the total effective imprisonment terms were below 8 years and half were above).

The most common total effective imprisonment term was 5 to less than 6 years (11 people).

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

Total effective imprisonment length Number of people
1 to less than 2 years 2
2 to less than 3 years 1
3 to less than 4 years 3
4 to less than 5 years 2
5 to less than 6 years 11
6 to less than 7 years 6
7 to less than 8 years 6
8 to less than 9 years 6
9 to less than 10 years 8
10 to less than 11 years 6
11 to less than 12 years 3
12 to less than 13 years 1
13 to less than 14 years 4
14 to less than 15 years 0
15 to less than 16 years 1
16 to less than 17 years 1
17 to less than 18 years 0
18 to less than 19 years 1
19 to less than 20 years 0
20 to less than 21 years 0
21 to less than 22 years 0
22 to less than 23 years 1
People sentenced 63

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.

All 63 people who were sentenced to imprisonment for persistent sexual abuse of a child under 16 were eligible to have a non-parole period fixed. Of these, 60 were given a non-parole period (95%).[14] Figure 7 shows the number of people sentenced to imprisonment for persistent sexual abuse of a child under 16 by length of non-parole period. Non-parole periods ranged from 1 year and 6 months to 18 years, while the median non-parole period was 5 years and 6 months (meaning that half of the non-parole periods were below 5 years and 6 months and half were above).

The most common non-parole period was 3 to less than 4 years (14 people).

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

Non-parole period Number of people
1 to less than 2 years 3
2 to less than 3 years 3
3 to less than 4 years 14
4 to less than 5 years 6
5 to less than 6 years 7
6 to less than 7 years 7
7 to less than 8 years 9
8 to less than 9 years 1
9 to less than 10 years 3
10 to less than 11 years 4
11 to less than 12 years 0
12 to less than 13 years 0
13 to less than 14 years 1
14 to less than 15 years 0
15 to less than 16 years 1
16 to less than 17 years 0
17 to less than 18 years 0
18 to less than 19 years 1
No non-parole period 2
Total people 62

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 6 years in 2013–14 to 10 years and 1 month in 2015–16. Over the same period, the average length of non-parole periods ranged from 3 years and 11 months in 2013–14 to 7 years and 4 months in 2015–16. The average total effective sentence initially grew in the three years to 2015–16, before declining in 2016–17 and increasing again slightly in 2017–18. The average total effective sentence in Figure 8 reflects a similar trend observed in 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 persistent sexual abuse of a child under 16, 2013–14 to 2017–18

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

Further data on total effective sentences of imprisonment and corresponding non-parole periods for persistent sexual abuse of a child under 16 is available on SACStat.

Summary

From 2013–14 to 2017–18, 69 people were sentenced for persistent sexual abuse of a child under 16 in the higher courts. Of these people, 63 (91%) were given a principal sentence of imprisonment.

People with a principal offence of persistent sexual abuse of a child under 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 8 years, while the median principal imprisonment length was 6 years.

Total effective imprisonment lengths ranged from 1 year (combined with a community correction order) to 22 years, and non-parole periods (where imposed) ranged from 1 year and 6 months to 18 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. 205, which describes sentencing trends for persistent sexual abuse of 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. Persistent sexual abuse of a child is currently located in section 49J of the Crimes Act 1958 (Vic). Prior to 1 July 2017, the same offence was located in section 47A of the Crimes Act 1958 (Vic). Prior to 1 December 2006, the offence was located in section 47A of the Crimes Act 1958 (Vic) but was called ‘maintaining a sexual relationship with a child under the age of 16’. This Snapshot includes all three versions of this offence if 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 49J and s 47A (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.

7Sentencing 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 and a partially suspended sentence.

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. 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 2 people who were eligible for a non-parole period.