Sentencing Snapshot 255: Sentencing Trends for Rape in the Higher Courts of Victoria 2015–16 to 2019–20

Date of Publication

Sentencing Snapshot no. 255 describes sentencing outcomes for the offence of rape in the County and Supreme Courts of Victoria from 2015–16 to 2019–20.

This is the most recent Snapshot for this offence.

You can also access statistics for rape on SACStat.

Authored and published by the Sentencing Advisory Council
© State of Victoria, Sentencing Advisory Council, 2021

 

 

Snapshot 255: Rape

Introduction

This Sentencing Snapshot describes sentencing outcomes[1] for the offence of rape in the County and Supreme Courts of Victoria (the higher courts) from 2015-16 to 2019-20.[2] Adjustments made by the Court of Appeal to sentence or conviction as at June 2020 have been incorporated into the data in this Snapshot.

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

A person who intentionally sexually penetrates another person without that person’s consent is guilty of the offence of rape. Sexual penetration includes oral, anal and vaginal penetration and may be committed by and against both men and women. However, rape is overwhelmingly committed by men against women. Rape is an indictable offence that carries a maximum penalty of 25 years’ imprisonment.[3]

Rape is a Category 1 offence if it was committed on or after 20 March 2017.[4] For this offence, this classification means that courts must always impose a custodial sentence. Rape is also a standard sentence offence if it was committed on or after 1 February 2018.[5] This means that courts must take into account that a prison sentence of 10 years represents the middle of the range of objective seriousness for this offence.[6]

This Snapshot focuses on cases where rape was the principal offence, that is, cases where rape was the offence that received the most severe sentence.[7] In some sections, this Snapshot distinguishes charges and cases subject to standard sentence classification.

Rape was the principal offence in 2.4% of cases sentenced in the higher courts between 2015-16 and 2019-20.

People Sentenced

From 2015-16 to 2019-20, 214 people were sentenced in the higher courts for a principal offence of rape.

Figure 1 shows the number of people sentenced for the principal offence of rape by financial year. There were 42 people sentenced for this offence in 2019-20, down from 50 in the previous year. The number of people sentenced was highest in 2018-19 (50 people) and lowest in 2015-16 (39 people). There were 19 people whose offending attracted standard sentence classification.

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

Financial year Average total effective sentence length Average non-parole period
2015-16 39 0
2016-17 40 0
2017-18 43 0
2018-19 50 5
2019-20 42 14
Total 214 19

Sentence Types and Trends

Figure 2 shows the proportion of people who received a custodial or non-custodial sentence for the principal offence of rape.

A custodial sentence involves at least some element of immediate imprisonment or detention.[8] The rate of custodial sentences was lowest in 2015-16 (89.7%) and highest in 2019-20 (97.6%). Over the five-year period, 93.0% of people were given a custodial sentence.

Figure 2: The percentage of people who received a custodial sentence and non-custodial sentence for rape by financial year

Financial Year Immediate custodial sentence Non-custodial sentence
2015-16 89.7% 10.3%
2016-17 95.0% 5.0%
2017-18 90.7% 9.3%
2018-19 92.0% 8.0%
2019-20 97.6% 2.4%
Total 93.0% 7.0%

Table 1 shows the principal sentence imposed for rape from 2015-16 to 2019-20.[9] The principal sentence is the most serious sentence imposed for the charge that is the principal offence.[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]

Over the five-year period, most people sentenced for rape received a principal sentence of imprisonment (88.8% or 190 of 214 people). The rate of imprisonment sentences was highest in 2019-20 (90.5%) and lowest in 2018-19 (86.0%). All offenders whose offence attracted standard sentence classification received a custodial sentence.

Table 1: The number and percentage of people sentenced for rape by most serious principal sentence type, standard sentence classification and financial year

Sentence type 2015-16 2016-17 2017-18 2018-19 2019-20 Total
Non-standard sentence
Imprisonment 35 (89.7%) 36 (90.0%) 38 (88.4%) 39 (78.0%) 27 (64.3%) 175 (81.8%)
Youth justice centre order 0 (0.0%) 0 (0.0%) 1 (2.3%) 2 (4.0%) 0 (0.0%) 3 (1.4%)
Community correction order 4 (10.3%) 1 (2.5%) 2 (4.7%) 4 (8.0%) 0 (0.0%) 11 (5.1%)
Other 0 (0.0%) 3 (7.5%) 2 (4.7%) 0 (0.0%) 1 (2.4%) 6 (2.8%)
Total non-standard sentence 39 40 43 45 28 195
Standard sentence
Imprisonment 0 (0.0%) 0 (0.0%) 0 (0.0%) 4 (8.0%) 11 (26.2%) 15 (7.0%)
Youth justice centre order 0 (0.0%) 0 (0.0%) 0 (0.0%) 1 (2.0%) 3 (7.1%) 4 (1.9%)
Total standard sentence 0 0 0 5 14 19
Total people sentenced 39 40 43 50 42 214

Principal and Total Effective Sentences of Imprisonment

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 multiple charges receiving imprisonment is the sentence that results from the court ordering the individual sentences of imprisonment to be served concurrently (at the same time) or wholly or partially cumulatively (one after the other). The total effective sentence in a case with a single charge is the principal sentence.

Therefore, where a case involves multiple charges, the total effective sentence imposed on a person is sometimes longer than the principal sentence. Principal sentences for rape must be considered in this broader context.

The following sections analyse the use of imprisonment for the offence of rape from 2015-16 to 2019-20.

Principal Sentence of Imprisonment

Table 2 shows that a total of 190 people received a principal sentence of imprisonment for rape. Of these, 189 (99.5%) received a non-aggregate term of imprisonment and 1 person received an aggregate term.[13] There were 5 people who received a community correction order in addition to their term of imprisonment.

Table 2: The number and percentage of people sentenced to imprisonment for rape by sentence type, standard sentence classification and financial year

Type of imprisonment sentence 2015-16 2016-17 2017-18 2018-19 2019-20 Total
Non-standard sentence
Imprisonment 34 (97.1%) 34 (94.4%) 38 (100.0%) 38 (88.4%) 26 (68.4%) 170 (89.5%)
Imprisonment and community correction order (combined) 1 (2.9%) 1 (2.8%) 0 (0.0%) 1 (2.3%) 1 (2.6%) 4 (2.1%)
Total non-aggregate imprisonment 35 (100.0%) 35 (97.2%) 38 (100.0%) 39 (90.7%) 27 (71.1%) 174 (91.6%)
Aggregate imprisonment 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%)
Aggregate imprisonment and community correction order (combined) 0 (0.0%) 1 (2.8%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 1 (0.5%)
Total aggregate imprisonment 0 (0.0%) 1 (2.8%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 1 (0.5%)
Total non-standard sentence 35 36 38 39 27 175
Standard sentence
Imprisonment 0 (0.0%) 0 (0.0%) 0 (0.0%) 4 (9.3%) 11 (28.9%) 15 (7.9%)
Total standard sentence 0 0 0 4 11 15
Total people sentenced 35 36 38 43 38 190

Figure 3 shows the length of imprisonment for the 189 people who received a non-aggregate term. Imprisonment terms ranged from 1 month to 12 years, while the median length of imprisonment was 5 years and 6 months (meaning that half of the imprisonment terms were below 5 years and 6 months and half were above).

Imprisonment terms imposed on principal offences of rape subject to the standard sentence ranged from 4 years and 6 months to 12 years, with a median term of 6 years.

The most common ranges of imprisonment terms were 5 to less than 6 years and 6 to less than 7 years (38 people each).

Figure 3: The number of people sentenced to imprisonment for rape by length of imprisonment term, 2015-16 to 2019-20

Imprisonment length Number of people Standard sentence
Less than 1 year 2 0
1 to less than 2 years 2 0
2 to less than 3 years 4 0
3 to less than 4 years 17 0
4 to less than 5 years 35 1
5 to less than 6 years 38 6
6 to less than 7 years 38 2
7 to less than 8 years 26 1
8 to less than 9 years 14 3
9 to less than 10 years 4 0
10 to less than 11 years 2 0
11 to less than 12 years 3 1
12 to less than 13 years 4 1
Total 189 15

Figure 4 shows the average length of imprisonment imposed on people sentenced for rape, for all people and those whose offending attracted the standard sentence. For all 189 people, average imprisonment terms ranged from 4 years and 11 months in 2016-17 to 6 years and 6 months in 2017-18. Over the five years, the average length of imprisonment for rape was 5 years and 8 months.

For the 15 charges subject to the standard sentence, the average sentence was 6 years and 10 months. The average term of standard sentence offences was higher than the overall average in both 2018-19 (4 charges) and 2019-20 (11 charges).

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

Financial year Number of people Number of people - standard sentence Average (years) Average - standard sentence
2015-16 35 0 5 years and 4 months 0 years and 0 months
2016-17 35 0 4 years and 11 months 0 years and 0 months
2017-18 38 0 6 years and 6 months 0 years and 0 months
2018-19 43 4 5 years and 9 months 7 years and 2 months
2019-20 38 11 5 years and 11 months 6 years and 9 months

Other Offences Finalised at the Same Hearing

Sometimes people prosecuted for rape 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 rape.

Figure 5 shows the number of people sentenced for the principal offence of rape by the total number of sentenced offences per person. The number of sentenced offences per person ranged from 1 to 35, and the median was 2 offences. There were 67 people (31.3%) sentenced for the single offence of rape. The average number of offences per person was 4.06.

Figure 5: The number of people sentenced for the principal offence of rape by the number of sentenced offences per person, 2015-16 to 2019-20

Number of offences Number of people
1 67
2 41
3 18
4 28
5-9 43
10-19 13
20+ 4
Total 214

Table 3 shows the 10 most common offences, by number and percentage, for people sentenced for rape. The last column sets out the average number of offences sentenced per person. For example, 48 of the total 214 people (22.4%) also received sentences for sexual assault. On average, they were sentenced for 2.08 charges of sexual assault per case.

Table 3: The number and percentage of people sentenced for the principal offence of rape by the most common offences that were sentenced and the average number of those offences that were sentenced, 2015-16 to 2019-20

Offence Number of cases Percentage of cases Average number of proven offences per case
1. Rape 214 100.0% 1.86
2. Sexual assault 48 22.4% 2.08
3. Common law assault 28 13.1% 2.54
4. Make threat to kill 23 10.7% 1.22
5. Causing injury intentionally 17 7.9% 1.65
6. Theft 14 6.5% 1.21
7. Aggravated burglary 13 6.1% 1.08
8. False imprisonment 10 4.7% 1.10
9. Indecent act with or in the presence of a child aged under 16 9 4.2% 3.67
10. Attempted rape 8 3.7% 1.38
People sentenced 214 100.0% 4.06

Total Effective Imprisonment Terms

Figure 6 shows the number of people sentenced to imprisonment for rape by length of their total effective sentence. Total effective sentences ranged from 1 month to 24 years and 1 month, while the median total effective sentence was 6 years and 11 months (meaning that half of the total effective sentences were below 6 years and 11 months and half were above).

Total effective sentences for cases where the principal offence of rape was subject to standard sentence classification ranged from 4 years and 6 months to 14 years, with a median total effective sentence of 7 years and 8 months.

The most common ranges of total effective sentences were 5 to less than 6 years, 6 to less than 7 years, and 7 to less than 8 years (25 people each).

Figure 6: The number of people sentenced to imprisonment for rape by length of total effective sentence, 2015-16 to 2019-20

Total effective sentence Number of people Standard sentence
Less than 1 year 2 0
1 to less than 2 years 3 0
2 to less than 3 years 4 0
3 to less than 4 years 12 0
4 to less than 5 years 24 1
5 to less than 6 years 25 4
6 to less than 7 years 25 1
7 to less than 8 years 25 2
8 to less than 9 years 24 4
9 to less than 10 years 12 0
10 to less than 11 years 7 0
11 to less than 12 years 5 0
12 to less than 13 years 6 2
13 to less than 14 years 4 0
14 to less than 15 years 4 1
15 to less than 16 years 2 0
16 to less than 17 years 1 0
17 to less than 18 years 0 0
18 to less than 19 years 1 0
19 to less than 20 years 1 0
20 to less than 21 years 1 0
21 to less than 22 years 1 0
22 to less than 23 years 0 0
23 to less than 24 years 0 0
24 to less than 25 years 1 0
Total 190 15

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 190 people who were sentenced to imprisonment for rape, 188 were eligible to have a non-parole period fixed.[14] Of these people, 185 were given a non-parole period (98.4%).[15]

Figure 7 shows the number of people sentenced to imprisonment for rape, by length of non-parole period. Non-parole periods ranged from 10 months to 17 years, while the median non-parole period was 4 years and 6 months (meaning that half of the non-parole periods were below 4 years and 6 months and half were above).

The non-parole period for cases where the principal offence of rape was subject to standard sentence classification ranged from 2 years and 6 months to 10 years, with a median non-parole period of 5 years and 3 months.

The most common range of non-parole periods was 3 to less than 4 years (33 people).

Note that it was not possible to determine the length of the non-parole period for 1 person.[16]

Figure 7: The number of people sentenced to imprisonment for rape by length of non-parole period, 2015-16 to 2019-20

Non-parole period Number of people Standard sentence
Less than 1 year 1 0
1 to less than 2 years 10 0
2 to less than 3 years 26 2
3 to less than 4 years 33 4
4 to less than 5 years 30 1
5 to less than 6 years 27 2
6 to less than 7 years 23 3
7 to less than 8 years 8 0
8 to less than 9 years 6 2
9 to less than 10 years 5 0
10 to less than 11 years 3 1
11 to less than 12 years 6 0
12 to less than 13 years 1 0
13 to less than 14 years 1 0
14 to less than 15 years 0 0
15 to less than 16 years 1 0
16 to less than 17 years 2 0
17 to less than 18 years 1 0
Undetermined 1 0
No non-parole period 5 0
Total 190 15

Total Effective Sentences of Imprisonment and Non-Parole Periods

Figure 8 represents the 184 people who were sentenced to imprisonment for rape and for whom the non-parole period could be determined. Figure 8 shows the average total effective sentence and average non-parole period for these people by financial year.

From 2015-16 to 2019-20, the average total effective sentence ranged from 6 years and 4 months in 2016-17 to 8 years and 8 months in 2017-18. Over the same period, the average non-parole period ranged from 4 years and 1 month in 2016-17 to 5 years and 11 months in 2017-18.

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

Financial year Average total effective sentence length Average non-parole period
2015-16 6 years and 10 months 4 years and 5 months
2016-17 6 years and 4 months 4 years and 0 months
2017-18 8 years and 7 months 5 years and 11 months
2018-19 8 years and 0 months 5 years and 5 months
2019-20 7 years and 4 months 4 years and 11 months

Figure 9 represents the 15 people who were sentenced to imprisonment for rape, were subject to standard sentence classification and received a non-parole period. Figure 9 shows the average total effective sentence and average non-parole period for these people by financial year.

The average total effective sentence was 9 years and 11 months in 2018-19 (4 cases) and 7 years and 1 month in 2019-20 (11 cases). The average non-parole period was 6 years and 2 months in 2018-19 and 4 years and 11 months in 2019-20.

Figure 9: The average total effective sentence and the average non-parole period imposed on people sentenced to imprisonment for rape, subject to the standard sentence 2015-16 to 2019-20

Financial year Average total effective sentence length Average non-parole period
2018-19 9 years and 11 months 6 years and 2 months
2019-20 7 years and 1 months 4 years and 11 months

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

Summary

From 2015-16 to 2019-20, 214 people were sentenced for rape in the higher courts. Of these people, 190 (88.8%) were given a principal sentence of imprisonment.

The number and range of offences for which people with a principal offence of rape were sentenced help explain why imprisonment sentence lengths were longer for the total effective sentence than for the principal sentence. Total effective sentences ranged from 1 month to 24 years and 1 month and non-parole periods ranged from 10 months to 17 years. The median total effective sentence was 6 years and 11 months, while the median principal imprisonment length was 5 years and 6 months.

On average, people sentenced for rape were found guilty of 4.06 offences each, with a maximum of 35 offences.

Of the 19 principal offences of rape subject to the standard sentence in this period, all received a custodial sentence and 15 received a prison term (78.9%). The median imprisonment term for those charges was 6 years, the median total effective sentence was 7 years and 8 months, and the median non-parole period was 5 years and 3 months.

Endnotes

1. This Sentencing Snapshot is an update of Sentencing Snapshot no. 230, which describes sentencing trends for rape between 2013-14 and 2017-18.

2. Data on first-instance sentence outcomes presented 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 Snapshot is accurate, the data is subject to revision.

3. Crimes Act 1958 (Vic) s 38(1).

4. Sentencing Act 1991 (Vic) ss 3(d) (definition of Category 1 offence), 5(2G)-(2GC).

5. Crimes Act 1958 (Vic) s 38(3).

6. Sentencing Act 1991 (Vic) ss 5(2)(ab), 5A-5B.

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. Custodial sentences are mostly imprisonment, but can also include partially suspended sentences, youth justice centre orders, hospital security orders, residential treatment orders, custodial supervision orders, and combined custody and treatment orders.

9. Principal sentence types can include 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 outcomes and in the count of people sentenced. These are not sentencing orders as they are imposed in cases in which the accused is found unfit to stand trial or not guilty because of mental impairment. However, they are included in this Snapshot as they are an important form of disposition of criminal charges.

10. For example, if the principal offence receives a combined order of imprisonment and a community correction order pursuant to section 44 of the Sentencing Act 1991 (Vic), imprisonment is recorded as the principal 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. However, rape offences classified as Category 1 offences can no longer receive combined orders of imprisonment and a community correction order.

13. A court may impose an aggregate sentence of imprisonment on multiple charges sentenced at the same time. These sentences are a single term of imprisonment in which the parts of the term attributable to the individual charges are not specified. A case may include a combination of aggregate and non-aggregate sentences.

14. Two 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 eligible for a non-parole period but did not receive one.

16. One person was given a non-parole period that related to more than one case (for example, they may have already been serving a prison sentence at the time). It was not possible to separately determine the non-parole periods that related to each individual case.

 
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