Sentencing Snapshot 256: Sentencing Trends for Sexual Assault in the Higher Courts of Victoria 2015–16 to 2019–20

Date of Publication

Sentencing Snapshot no. 256 describes sentencing outcomes for the offence of sexual assault 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 sexual assault on SACStat.

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

 

 

Snapshot 256: Sexual Assault

Introduction

This Sentencing Snapshot describes sentencing outcomes[1] for the offence of sexual assault[2] in the County and Supreme Courts of Victoria (the higher courts) from 2015-16 to 2019-20.[3] 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 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 and/or a fine of 1,200 penalty units.[4] It can be tried summarily in the Magistrates’ Court.[5]

This Snapshot focuses on cases where sexual assault was the principal offence, that is, cases where sexual assault was the offence that received the most severe sentence.[6]

Sexual assault 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, 97 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 24 people sentenced for this offence in 2019-20, up from 19 in the previous year. The number of people sentenced was highest in 2019-20 (24 people) and lowest in 2017-18 (15 people).

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

Financial Year Total
2015-16 23
2016-17 16
2017-18 15
2018-19 19
2019-20 24
Total 97

Sentence Types and Trends

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

A custodial sentence involves at least some element of immediate imprisonment or detention.[7] The rate of custodial sentences was lowest in 2015-16 (26.1%) and highest in 2018-19 (84.2%). Over the five-year period, 46.4% of people were given a custodial sentence.

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

Financial Year Immediate custodial sentence Non-custodial sentence
2015-16 26.1% 73.9%
2016-17 50.0% 50.0%
2017-18 26.7% 73.3%
2018-19 84.2% 15.8%
2019-20 45.8% 54.2%
Total 46.4% 53.6%

Table 1 shows the principal sentence imposed for the principal offence of sexual assault from 2015-16 to 2019-20.[8] The principal sentence is the most serious sentence imposed for the charge that is the principal offence.[9] The availability of different sentence types has changed over time. Most notably, wholly and partially suspended sentences have now been abolished for offences committed after a certain date.[10] Changes to community correction orders may have also influenced the sentencing trends over the five years covered by this Snapshot.[11]

Over the five-year period, less than half of all people sentenced for sexual assault as the principal offence received a principal sentence of imprisonment (43.3% or 42 of 97 people). The rate of imprisonment sentences was highest in 2018-19 (84.2%) and lowest in 2017-18 (20.0%).

Table 1: The number and percentage of people sentenced for sexual assault by principal sentence type and financial year

Sentence type 2015-16 2016-17 2017-18 2018-19 2019-20 Total
Imprisonment 6 (26.1%) 6 (37.5%) 3 (20.0%) 16 (84.2%) 11 (45.8%) 42 (43.3%)
Community correction order 14 (60.9%) 5 (31.3%) 8 (53.3%) 3 (15.8%) 8 (33.3%) 38 (39.2%)
Other 3 (13.0%) 5 (31.3%) 4 (26.7%) 0 (0.0%) 5 (20.8%) 17 (17.5%)
Total people sentenced 23 16 15 19 24 97

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 sexual assault must be considered in this broader context.

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

Principal Sentence of Imprisonment

Table 2 shows that a total of 42 people received a principal sentence of imprisonment for sexual assault. Of these, 40 (99.5%) received a non-aggregate term of imprisonment and 2 people received an aggregate term.[12] There were 16 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 sexual assault by sentence type and financial year

Type of imprisonment sentence 2015-16 2016-17 2017-18 2018-19 2019-20 Total
Imprisonment 3 (50.0%) 3 (50.0%) 2 (66.7%) 10 (62.5%) 7 (63.6%) 25 (59.5%)
Imprisonment and community correction order (combined) 3 (50.0%) 3 (50.0%) 1 (33.3%) 5 (31.3%) 3 (27.3%) 15 (35.7%)
Total non-aggregate imprisonment 6 (100.0%) 6 (100.0%) 3 (100.0%) 15 (93.8%) 10 (90.9%) 40 (95.2%)
Aggregate imprisonment 0 (0.0%) 0 (0.0%) 0 (0.0%) 1 (6.3%) 0 (0.0%) 1 (2.4%)
Aggregate imprisonment and community correction order (combined) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 1 (9.1%) 1 (2.4%)
Total aggregate imprisonment 0 (0.0%) 0 (0.0%) 0 (0.0%) 1 (6.3%) 1 (9.1%) 2 (4.8%)
Total people sentenced  6 6 3 16 11 42

Figure 3 shows the length of imprisonment for the 40 people who received a non-aggregate term. Imprisonment terms ranged from 2 months to 4 years and 6 months, while the median length of imprisonment was 1 year and 3 months (meaning that half of the imprisonment terms were below 1 year and 3 months and half were above).

The most common range of imprisonment terms was 1 to less than 2 years (15 people).

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

Imprisonment length Number of people
Less than 1 year 13
1 to less than 2 years 15
2 to less than 3 years 6
3 to less than 4 years 3
4 to less than 5 years 3
Total 40

Figure 4 shows the average length of imprisonment imposed on people sentenced for sexual assault. Imprisonment terms ranged from 1 year and 1 month in 2015-16 to 1 year and 10 months in 2018-19. Over the five years, the average length of imprisonment for sexual assault was 1 year and 6 months.

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

Financial year Number of people Average (years)
2015-16 6 1 year and 1 month
2016-17 6 1 year and 4 months
2017-18 3 1 year and 9 months
2018-19 15 1 year and 10 months
2019-20 10 1 year and 5 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.

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 16, and the median was 1 offence. There were 49 people (50.5%) sentenced for the single offence of sexual assault. The average number of offences per person was 2.37.

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

Number of offences Number of people
1 49
2 23
3 11
4 3
5-9 9
10+ 2
Total 97

Table 3 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, 5 of the total 97 people (5.2%) were also sentenced for common law assault. On average, they were sentenced for 1.40 charges of common law assault per case.

Table 3: 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 that were sentenced, 2015-16 to 2019-20

Offence Number of cases Percentage of cases Average number of proven offences per case
1. Sexual assault 97 100.0% 1.42
2. Common law assault 5 5.2% 1.40
3. Fail to comply with reporting obligations 4 4.1% 1.00
4. Make threat to kill 4 4.1% 1.00
5. Theft 4 4.1% 1.00
6. Possess a drug of dependence 3 3.1% 1.67
7. Causing injury intentionally 3 3.1% 1.00
8. Causing injury recklessly 3 3.1% 1.00
9. Contravene a conduct condition of bail 2 2.1% 2.00
10. Indecent assault (pre-1991) 2 2.1% 1.50
People sentenced 97 100.0% 2.37

Total Effective Imprisonment Terms

Figure 6 shows the number of people sentenced to imprisonment for sexual assault by length of their total effective sentence. Total effective sentences ranged from 2 months to 7 years and 3 months, while the median total effective sentence was 1 year and 6 months (meaning that half of the total effective sentences were below 1 year and 6 months and half were above).

The most common range of total effective sentences was 1 to less than 2 years (15 people).

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

Total effective sentence Number of people
Less than 1 year 13
1 to less than 2 years 15
2 to less than 3 years 5
3 to less than 4 years 3
4 to less than 5 years 3
5 to less than 6 years 2
6 to less than 7 years 0
7 to less than 8 years 1
Total 42

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 42 people who were sentenced to imprisonment for sexual assault, 29 were eligible to have a non-parole period fixed.[13] Of these people, 19 were given a non-parole period (65.5%).[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 7 months to 4 years and 6 months, while the median non-parole period was 1 year and 8 months (meaning that half of the non-parole periods were below 1 year and 8 months and half were above).

The most common range of non-parole periods was 1 to less than 2 years (7 people).

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

Non-parole period Number of people
Less than 1 year 3
1 to less than 2 years 7
2 to less than 3 years 5
3 to less than 4 years 2
4 to less than 5 years 2
No non-parole period 23
Total 42

Total Effective Sentences of Imprisonment and Non-Parole Periods

Figure 8 represents the 19 people who were sentenced to imprisonment for sexual assault and received a non-parole period. 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 1 year and 6 months in 2015-16 to 3 years and 8 months in 2016-17 and 2018-19. Over the same period, the average non-parole period ranged from 11 months in 2015-16 to 2 years and 4 months in 2016-17 and 2018-19.

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

Financial year Average total effective sentence length Average non-parole period
2015-16 1 year and 6 months 11 months
2016-17 3 years and 8 months 2 years and 4 months
2017-18 2 years and 7 months 1 year and 8 months
2018-19 3 years and 8 months 2 years and 4 months
2019-20 3 years 1 year and 10 months

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

Summary

From 2015-16 to 2019-20, 97 people were sentenced for sexual assault in the higher courts. Of these people, 42 (43.3%) were given a principal sentence of imprisonment.

The number and range of offences for which people with a principal offence of sexual assault 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 2 months to 7 years and 3 months, and non-parole periods ranged from 7 months to 4 years and 6 months. The median total effective sentence was 1 year and 6 months, while the median principal imprisonment length was 1 year and 3 months.

On average, people sentenced for sexual assault were found guilty of 2.37 offences each, with a maximum of 16 offences.

Endnotes

1. This Sentencing Snapshot is an update of Sentencing Snapshot no. 231, which describes sentencing trends for sexual assault between 2013-14 and 2017-18.

2. Crimes Act 1958 (Vic) s 40. 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 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.

4. The value of a penalty unit changes each year and can be found in the Victorian Government Gazette and on the Victorian legislation website.

5. Criminal Procedure Act 2009 (Vic) s 28.

6. 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.

7. 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.

8. 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.

9. 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 most serious sentence type.

This Snapshot 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 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. 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.

11. 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.

12. 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.

13. Thirteen 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. Ten people were eligible to have a non-parole period fixed but did not receive one.

 
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