Sentencing Snapshot 242: Sentencing Trends for Incest in the Higher Courts of Victoria 2014-15 to 2018-19

Date of Publication

Sentencing Snapshot no. 242 describes sentencing outcomes for the offence of incest in the County and Supreme Courts of Victoria from 2014-15 to 2018-19.

This is the most recent Snapshot for this offence.

You can also access statistics for this offence on SACStat.

Authored and published by the Sentencing Advisory Council
© State of Victoria, Sentencing Advisory Council, 2020

Snapshot 242: Incest

Introduction

This Sentencing Snapshot describes sentencing outcomes[1] for the offence of incest[2] in the County and Supreme Courts of Victoria (the higher courts) from 2014-15 to 2018-19.[3] Adjustments made by the Court of Appeal to sentence or conviction as at June 2019 have been incorporated into the data in this Snapshot.[4]

Detailed data on incest and other offences is available on Sentencing Advisory Council Statistics (SACStat).

A person who engages in an act of sexual penetration with a person whom they know to be their child or other lineal descendant or their step-child is guilty of incest. Similarly, a person who takes part in an act of sexual penetration with a person aged under 18 whom they know to be the child or other lineal descendant (or the step-child) of their de facto spouse is guilty of incest.

Incest is an indictable offence and is triable before a judge and jury in the County or Supreme Court. The maximum penalty for this offence is 25 years’ imprisonment and/or 3,000 penalty units.[5] Indictable offences are more serious offences triable before a judge and jury in the County or Supreme Court.

Incest is a Category 1 offence, which means that a court must impose a custodial sentence for that offence.[6] Classification as a Category 1 offence would have applied to any charges of this offence committed  on or after 20 March 2017.

Incest is also a standard sentence offence if the victim was aged under 18 at the time of the offence. This means that courts must take into account that parliament considers a prison sentence of 10 years to represent the middle of the range of objective seriousness for this offence.[7] Classification as a standard sentence offence would have applied to any charges of this offence committed  on or after 1 February 2018.

This Snapshot focuses on cases where incest was the principal offence, that is, cases where incest was the offence that received the most severe sentence.[8]

Incest was the principal offence in 0.8% of cases sentenced in the higher courts between 2014-15 and 2018-19.

People sentenced

From 2014-15 to 2018-19, 114 people were sentenced in the higher courts for a principal offence of incest.

Figure 1 shows the number of people sentenced for the principal offence of incest by financial year. There were 14 people sentenced for this offence in 2018-19, down by 7 people from the previous year. The number of people sentenced was highest in 2014-15 (29 people) and lowest in 2018-19 (14 people).

Figure 1: The number of people sentenced for incest by financial year

Financial year Total
2014-15 29
2015-16 24
2016-17 26
2017-18 21
2018-19 14
Total 114

Sentence types and trends

Figure 2 shows the proportion of people who received an immediate custodial sentence and non-custodial sentence for the principal offence of incest.

An immediate custodial sentence involves at least some element of immediate imprisonment or detention.[9] Over the five-year period, 96.5% of people were given an immediate custodial sentence. The highest proportion of custodial sentences was handed down in both 2017-18 and 2018-19, when 100% of people received an immediate custodial sentence.

Figure 2: The percentage of people who received an immediate custodial sentence and non-custodial sentence for incest by financial year

Financial year Immediate custodial sentence People sentenced Immediate custodial sentence Non-custodial sentence
2014-15 28 29 96.6% 3.4%
2015-16 23 24 95.8% 4.2%
2016-17 24 26 92.3% 7.7%
2017-18 21 21 100.0% 0.0%
2018-19 14 14 100.0% 0.0%
Total 110 114 96.5% 3.5%

Table 1 shows the number of people sentenced for incest from 2014-15 to 2018-19 by the most serious type of sentence imposed.[10] 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 may have also influenced the sentencing trends over the five years covered by this Snapshot.[12] Sentencing for some offences, including incest, during the five years covered by this Snapshot is subject to further restrictions.[13]

Over the five-year period, the large majority of people sentenced for incest received a principal sentence of imprisonment (95.6% or 109 of 114 people). The principal sentence is the sentence imposed for the charge that is the principal offence. The proportion of imprisonment sentences increased slightly over the five years, from 96.6% in 2014-15 to 100% in 2018-19.

Table 1: The number and percentage of people sentenced for incest by most serious principal sentence type and financial year

Sentence type 2014-15 2015-16 2016-17 2017-18 2018-19 Total
Imprisonment 28 (96.6%) 23 (95.8%) 23 (88.5%) 21 (100.0%) 14 (100.0%) 109 (95.6%)
Community correction order 1 (3.4%) 0 (0.0%) 2 (7.7%) 0 (0.0%) 0 (0.0%) 3 (2.6%)
Other 0 (0.0%) 1 (4.2%) 1 (3.8%) 0 (0.0%) 0 (0.0%) 2 (1.8%)
Total people sentenced 29 24 26 21 14 114

Principal and total effective sentences

The principal sentence describes sentences for the offence at a charge level (as described in the previous section). The total effective sentence describes sentences at a case level.

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 incest must be considered in this broader context.

The following sections analyse the use of imprisonment for the offence of incest from 2014-15 to 2018-19.

Principal sentence of imprisonment

Table 2 shows that a total of 109 people received a principal sentence of imprisonment for incest. All 109 people received a non-aggregate term of imprisonment.

Table 2: The number and percentage of people sentenced to imprisonment for incest by sentence type and financial year

Type of imprisonment sentence 2014-15 2015-16 2016-17 2017-18 2018-19 Total
Imprisonment 28 (100.0%) 23 (100.0%) 23 (100.0%) 21 (100.0%) 14 (100.0%) 109 (100.0%)
Total people sentenced to imprisonment 28 23 23 21 14 109

Figure 3 shows the length of imprisonment for the 109 people who received a non-aggregate term.[14] Imprisonment terms ranged from 1 year to 11 years, while the median length of imprisonment was 5 years (meaning that half of the imprisonment terms were below 5 years and half were above).

The most common range of imprisonment term lengths was 5 to less than 6 years (33 people).

Figure 3: The number of people sentenced to imprisonment for incest by length of imprisonment term, 2014-15 to 2018-19

Imprisonment length Number of people
1 to less than 2 years 1
2 to less than 3 years 0
3 to less than 4 years 15
4 to less than 5 years 22
5 to less than 6 years 33
6 to less than 7 years 21
7 to less than 8 years 8
8 to less than 9 years 4
9 to less than 10 years 4
10 to less than 11 years 0
11 to less than 12 years 1
Total people sentenced 109

As shown in Figure 4, the average length of imprisonment imposed on people sentenced for incest ranged from 4 years and 4 months in 2014-15 to 6 years and 6 months in 2018-19. Over the five years, the average length of imprisonment for incest was 5 years and 4 months.

Other offences finalised at the same hearing

Sometimes people prosecuted for incest 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 incest.

Figure 4: The average length of imprisonment imposed on people sentenced for incest by financial year

Financial year Number of people Average length of imprisonment term
2014-15 28 4 years and 4 months
2015-16 23 4 years and 10 months
2016-17 23 5 years and 8 months
2017-18 21 5 years and 7 months
2018-19 14 6 years and 6 months
Total 109 5 years and 4 months

Figure 5 shows the number of people sentenced for the principal offence of incest by the total number of sentenced offences per person. The number of sentenced offences per person ranged from 1 to 39, while the median was 5 offences. There were 9 people (7.9%) sentenced for the single offence of incest. The average number of offences per person was 6.22.

Figure 5: The number of people sentenced for the principal offence of incest by the number of sentenced offences per person, 2014-15 to 2018-19

Number of offences Number of people
1 9
2 12
3 15
4 11
5-9 51
10-19 13
20+ 3
Total 114

Table 3 shows the 10 most common offences, by number and percentage, for people sentenced for incest. The last column sets out the average number of offences sentenced per person. For example, 59 of the total 114 people (51.8%) also received sentences for indecent act with a child under 16. On average, they were sentenced for 3.37 counts of indecent act with a child under 16.

Table 3: The number and percentage of people sentenced for the principal offence of incest by the most common offences that were sentenced and the average number of those offences that were sentenced, 2014-15 to 2018-19

Offence Number of cases Percentage of cases Average number of proven offences per case
1. Incest 114 100.0% 2.73
2. Indecent act with a child under 16 59 51.8% 3.37
3. Indecent assault 11 9.6% 1.55
4. Knowingly possess child pornography 11 9.6% 1.18
5. Indecent act with a child aged under 16 10 8.8% 2.1
6. Common law assault 8 7.0% 3.62
7. Make or produce child pornography 8 7.0% 1.25
8. Sexual penetration of a child aged 16 or 17 under care, supervision or authority 6 5.3% 1.67
9. Attempted incest 4 3.5% 1
10. Making threat to kill 3 2.6% 1.67
People sentenced 114 100.0% 6.22

Total effective imprisonment terms

Figure 6 shows the number of people sentenced to imprisonment for incest by length of total effective imprisonment term. The total effective imprisonment terms ranged from 1 year to 21 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 range of total effective imprisonment terms was 5 to less than 6 years (19 people).

Figure 6: The number of people sentenced to imprisonment for incest by length of total effective imprisonment term, 2014-15 to 2018-19

Total effective imprisonment length Number of people
1 to less than 2 years 1
2 to less than 3 years 0
3 to less than 4 years 3
4 to less than 5 years 7
5 to less than 6 years 19
6 to less than 7 years 10
7 to less than 8 years 14
8 to less than 9 years 11
9 to less than 10 years 14
10 to less than 11 years 10
11 to less than 12 years 8
12 to less than 13 years 4
13 to less than 14 years 1
14 to less than 15 years 3
15 to less than 16 years 2
16 to less than 17 years 0
17 to less than 18 years 0
18 to less than 19 years 0
19 to less than 20 years 0
20 to less than 21 years 1
21 to less than 22 years 1
Total people sentenced 109

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 109 people who were sentenced to imprisonment for incest were eligible to have a non-parole period fixed. Of these people, 108 were given a non-parole period (99.1%).

Figure 7 shows the number of people sentenced to imprisonment for incest, by length of non-parole period. Non-parole periods ranged from 1 year to 18 years, while the median non-parole period was 5 years (meaning that half of the non-parole periods were below 5 years and half were above). There was 1 person sentenced to imprisonment for incest who did not have a non-parole period imposed.

The most common range for non-parole periods was 3 to less than 4 years (19 people).

Note that it was not possible to determine the length of the non-parole period for 4 people.[15]

Figure 7: The number of people sentenced to imprisonment for incest by length of non-parole period, 2014-15 to 2018-19

Non-parole period Number of people
1 to less than 2 years 4
2 to less than 3 years 8
3 to less than 4 years 19
4 to less than 5 years 14
5 to less than 6 years 14
6 to less than 7 years 10
7 to less than 8 years 13
8 to less than 9 years 13
9 to less than 10 years 4
10 to less than 11 years 1
11 to less than 12 years 1
12 to less than 13 years 1
13 to less than 14 years 0
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
Undetermined 4
No non-parole period 1
Total people 109

Total effective sentences of imprisonment and non-parole periods

Figure 8 represents the 104 people who were sentenced to imprisonment for incest and for whom the non-parole period could be determined. Figure 8 compares the average length of total effective sentences with the average length of non-parole periods for these people by financial year.[16]

From 2014-15 to 2018-19, the average length of total effective sentences for all people ranged from 7 years and 1 month in 2015-16 to 9 years and 10 months in 2018-19. Over the same period, the average length of non-parole periods ranged from 4 years and 7 months in 2015-16 to 6 years and 10 months in 2018-19.

Figure 8: The average total effective sentence length and the average non-parole period for people sentenced to imprisonment with a non-parole period for incest by financial year

Financial year Average total effective sentence length Average non-parole period
2014-15 7 years and 4 months 4 years and 10 months
2015-16 7 years and 1 month 4 years and 7 months
2016-17 8 years and 6 months 5 years and 9 months
2017-18 9 years and 3 months 6 years and 5 months
2018-19 9 years and 10 months 6 years and 10 months

Further data on total effective sentences of imprisonment and corresponding non-parole periods for incest is available on SACStat.

Summary

From 2014-15 to 2018-19, 114 people were sentenced for incest in the higher courts. Of these people, 109 (95.6%) were given a principal sentence of imprisonment.

The number and range of offences for which people with a principal offence of incest were sentenced 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 5 years.

Total effective imprisonment lengths ranged from 1 year to 21 years, and non-parole periods ranged from 1 year to 18 years.

Endnotes

1. This Sentencing Snapshot is an update of Sentencing Snapshot no. 217, which describes sentencing trends for incest between 2012-13 and 2016-17.

2. This Snapshot discusses the offence of incest sentenced between 1 July 2014 and 30 June 2019. This includes offences of incest under the historical sections 44(1) and 44(2) of the Crimes Act 1958 (Vic), and offenses of incest under the new sections 50C and 50D, which replaced the offences listed in sections 44(1) and 44(2) as at 1 July 2017. The offences under the historical sections 44(3) and 44(4) of the Crimes Act 1958 (Vic) are different types of incest that have a statutory maximum penalty of 5 years’ imprisonment and are excluded from this report. Sections 50E and 50F replaced the offences listed in sections 44(3) and 44(4) as at 1 July 2017. The maximum penalties for each type of incest offence remain the same. In the five-year period of this Snapshot, one incest offence was sentenced under the new sections.

The sentencing database used for this analysis was compiled using conviction returns. Due to some incomplete information found on incest conviction returns in relation to the specific type of incest, an exercise was undertaken to verify the offence on the conviction return against the offence stated in sentencing remarks. Of the 127 conviction returns that had an incest offence as the principal offence in the five-year period, 117 sentencing remarks were located. For these cases, the sentencing remarks enabled the classification of incest into the subsections of the Act. For the remaining 10 incest cases where no sentencing remarks were located, the offence stated on the conviction return was used to define the specific incest offence. As a result of this exercise, 114 cases were classified as having a principal offence that corresponded to section 44(1), 44(2) or 50D of the Crimes Act 1958 (Vic). The remaining 13 cases were classified as having a principal offence corresponding to sections 44(3) and 44(4) and are excluded from this Snapshot.

3. Data on first-instance sentence outcomes presented in this Snapshot were 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 June 2016, the Court of Appeal held that there was a need to uplift sentencing practices for incest: Dalgliesh (A Pseudonym) v The Queen [2016] VSCA 148. Further, in October 2017, the High Court held that where current sentencing practices are shown to be inadequate, the courts should change their practices immediately, not incrementally: Dalgliesh (A Pseudonym) v The Queen [2017] HCA 41. Although both of these judgments occurred partway through the reference period in this Snapshot, they may have resulted in considerable changes to sentencing practices for cases sentenced subsequently.

5. 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.

6. Sentencing Act 1991 (Vic) ss 3(j) (definition of category 1 offence), 5(2G).

7. Crimes Act 1958 (Vic) ss 50C(3), 50D(3); Sentencing Act 1991 (Vic) s 5(2)(ab).

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. For the principal offence of incest, an immediate custodial sentence included imprisonment and a partially suspended sentence.

10. For example, if the principal offence has a sentence that includes imprisonment combined with a community correction order, imprisonment is the most serious sentence type.

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. Under section 5(2G) of the Sentencing Act 1991 (Vic), a court cannot impose a community correction order (or another non-custodial order) for Category 1 offences, including incest, if the offence was committed on or after 20 March 2017. Likewise, under section 5(2H) of the Sentencing Act 1991 (Vic), a court cannot impose a community correction order (or another non-custodial order) for Category 2 offences where the offence was committed on or after 20 March 2017, unless there are special reasons for doing so.

14. Figures 3 and 4 only report on non-aggregate sentences of imprisonment for the principal offence of incest.

15. Four people were given a non-parole period that related to more than one case. It was not possible to separately determine the length of the non-parole periods that related to each individual case.

16. Figure 8 only includes cases where the total effective sentence is an imprisonment term and a non-parole period is applied.

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