Sentencing Snapshot 257: Sentencing Trends for Persistent Sexual Abuse of a Child under 16 in the Higher Courts of Victoria 2015–16 to 2019–20

Date of Publication

Sentencing Snapshot no. 257 describes sentencing outcomes for the offence of persistent sexual abuse of a child under 16 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 persistent sexual abuse on SACStat.

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

 

 

Snapshot 257: 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 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 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.[3]

Persistent sexual abuse of a child under 16 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. Persistent sexual abuse of a child under 16 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 persistent sexual abuse of a child under 16 was the principal offence, that is, cases where persistent sexual abuse of a child under 16 was the offence that received the most severe sentence.[7] In some sections, this Snapshot distinguishes charges and cases subject to the standard sentence.

Persistent sexual abuse of a child under 16 was the principal offence in 0.7% of cases sentenced in the higher courts between 2015-16 and 2019-20.

People sentenced

From 2015-16 to 2019-20, 66 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 9 people sentenced for this offence in 2019-20, down from 12 in the previous year. The number of people sentenced was highest in 2016-17 (17 people) and lowest in 2019-20 (9 people). There were 2 people whose offending attracted standard sentence classification (both sentenced in 2019-20).[8]

Figure 1: The number of people sentenced for persistent sexual abuse of a child under 16 by financial year

Financial Year Total Standard sentence
2015-16 16 0
2016-17 17 0
2017-18 12 0
2018-19 12 0
2019-20 9 2
Total 65 2

Sentence types and trends

Figure 2 shows the proportion of people who received a custodial or non-custodial sentence for the principal offence of persistent sexual abuse of a child under 16.

A custodial sentence involves at least some element of immediate imprisonment or detention.[9] Over the five-year period, 93.9% of people were given a custodial sentence.

Figure 2: The percentage of people who received a custodial sentence and non-custodial sentence for persistent sexual abuse of a child under 16 by financial year

Financial Year Immediate custodial sentence Non-custodial sentence
2015-16 100.0% 0.0%
2016-17 94.1% 5.9%
2017-18 91.7% 8.3%
2018-19 91.7% 8.3%
2019-20 88.9% 11.1%
Total 93.9% 6.1%

Table 1 shows the principal sentence imposed for the principal offence of persistent sexual abuse of a child under 16 from 2015-16 to 2019-20.[10] The principal sentence is the most serious sentence imposed for the charge that is the principal offence.[11] 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.[12] Changes to community correction orders may have also influenced the sentencing trends over the five years covered by this Snapshot.[13]

Over the five-year period, most people sentenced for persistent sexual abuse of a child under 16 as the principal offence received a principal sentence of imprisonment (92.4% or 61 of 66 people). Both offenders whose offence attracted standard sentence classification in 2019-20 received a sentence of imprisonment.

Table 1: The number and percentage of people sentenced for persistent sexual abuse of a child under 16 by principal sentence type and financial year

Sentence type 2015-16 2016-17 2017-18 2018-19 2019-20 Total
Imprisonment 15 (93.8%) 16 (94.1%) 11 (91.7%) 11 (91.7%) 8 (88.9%) 61 (92.4%)
Community correction order 0 (0.0%) 0 (0.0%) 1 (8.3%) 1 (8.3%) 1 (11.1%) 3 (4.5%)
Other 1 (6.2%) 1 (5.9%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 2 (3.0%)
Total people sentenced 16 17 12 12 9 66

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 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 2015-16 to 2019-20.

Principal sentence of imprisonment

Table 2 shows that a total of 61 people received a principal sentence of imprisonment for persistent sexual abuse of a child under 16. All 61 people received a non-aggregate term of imprisonment.[14] There were 3 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 persistent sexual abuse of a child under 16 by sentence type and financial year

Type of imprisonment sentence 2015-16 2016-17 2017-18 2018-19 2019-20 Total
Imprisonment 15 (100.0%) 14 (87.5%) 11 (100.0%) 10 (90.9%) 8 (100.0%) 58 (95.1%)
Imprisonment and community correction order (combined) 0 (0.0%) 2 (12.5%) 0 (0.0%) 1 (9.1%) 0 (0.0%) 3 (4.9%)
Total 15 16 11 11 8 61

Figure 3 shows the length of imprisonment for the 61 people who received a non-aggregate term. Imprisonment terms ranged from 1 year to 13 years, while the median term was 6 years and 6 months (meaning that half of imprisonment terms were below 6 years and 6 months and half were above).

Imprisonment terms imposed on the 2 principal offences of persistent sexual abuse of a child under 16 subject to standard sentence classification were 2 years and 6 years.

The most common range of imprisonment terms was 6 to less than 7 years (13 people).

Figure 3: The number of people sentenced to imprisonment for persistent sexual abuse of a child under 16 by length of imprisonment term, 2015-16 to 2019-20

Imprisonment length Number of people Standard sentence
1 to less than 2 years 3 0
2 to less than 3 years 1 1
3 to less than 4 years 2 0
4 to less than 5 years 5 0
5 to less than 6 years 8 0
6 to less than 7 years 13 1
7 to less than 8 years 7 0
8 to less than 9 years 8 0
9 to less than 10 years 4 0
10 to less than 11 years 7 0
11 to less than 12 years 1 0
12 to less than 13 years 1 0
13 to less than 14 years 1 0
Total 61 2

Figure 4 shows the average length of imprisonment imposed on people sentenced for persistent sexual abuse of a child under 16. For all 61 people, imprisonment terms ranged from 6 years and 1 month in 2018-19 to 7 years and 6 months in 2019-20. Over the five years, the average length of imprisonment for persistent sexual abuse of a child under 16 was 6 years and 8 months.

Figure 4: The average length of imprisonment imposed on people sentenced for persistent sexual abuse of a child under 16, by financial year

Financial year Number of people Average (years)
2015-16 15 7 years and 4 months
2016-17 16 6 years and 2 months
2017-18 11 6 years and 8 months
2018-19 11 6 years and 1 month
2019-20 7 7 years and 6 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.

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, and the median was 2 offences. There were 27 people (40.9%) sentenced for the single offence of persistent sexual abuse of a child under 16. The average number of offences per person was 5.79.

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, 2015-16 to 2019-20

Number of offences Number of people
1 27
2 6
3 6
4 8
5-9 10
10-19 5
20+ 4
Total 66

Table 3 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, 16 of the total 66 people (24.2%) were also sentenced for indecent act with or in the presence of a child under 16. On average, they were sentenced for 2.62 charges of indecent act with or in the presence of a child under 16 per case.

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

Offence Number of cases Percentage of cases Average number of proven offences per case
1. Persistent sexual abuse of a child under 16 66 100.0% 1.29
2. Indecent act with or in the presence of a child under the age of 16 16 24.2% 2.62
3. Make or produce child pornography 12 18.2% 2.67
4. Knowingly possess child pornography 7 10.6% 1.00
5. Incest with a child, step-child or lineal descendant 4 6.1% 2.25
6. Common law assault 3 4.5% 7.33
7. Sexual penetration of a child under 12 3 4.5% 5.00
8. Persistent contravention of a family violence order or notice 3 4.5% 1.33
9. Sexual penetration of a child aged 16 or 17 and under care, supervision or authority of the offender 3 4.5% 1.33
10. Knowingly possess child abuse material 3 4.5% 1.00
People sentenced 66 100.0% 5.79

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 their total effective sentence. Total effective sentences ranged from 1 year to 35 years, while the median total effective sentence was 8 years (meaning that half of the total effective sentences were below 8 years and half were above).

Total effective sentences for the 2 cases where the principal offence of persistent sexual abuse of a child under 16 was subject to standard sentence classification were 2 years and 12 years and 2 months.

The most common ranges of total effective sentences were 5 to less than 6 years and 9 to less than 10 years (8 people in each category).

Figure 6: The number of people sentenced to imprisonment for persistent sexual abuse of a child under 16 by length of total effective sentence, 2015-16 to 2019-20

Total effective sentence Number of people Standard sentence
1 to less than 2 years 3 0
2 to less than 3 years 1 1
3 to less than 4 years 2 0
4 to less than 5 years 2 0
5 to less than 6 years 8 0
6 to less than 7 years 7 0
7 to less than 8 years 4 0
8 to less than 9 years 4 0
9 to less than 10 years 8 0
10 to less than 11 years 5 0
11 to less than 12 years 3 0
12 to less than 13 years 3 1
13 to less than 14 years 4 0
14 to less than 15 years 0 0
15 to less than 16 years 2 0
16 to less than 17 years 2 0
17 to less than 18 years 0 0
18 to less than 19 years 1 0
19 to less than 20 years 0 0
20 to less than 21 years 0 0
21 to less than 22 years 0 0
22 to less than 23 years 1 0
23 to less than 24 years 0 0
24 to less than 25 years 0 0
25 to less than 26 years 0 0
26 to less than 27 years 0 0
27 to less than 28 years 0 0
28 to less than 29 years 0 0
29 to less than 30 years 0 0
30 to less than 31 years 0 0
31 to less than 32 years 0 0
32 to less than 33 years 0 0
33 to less than 34 years 0 0
34 to less than 35 years 0 0
35 to less than 36 years 1 0
Total 61 2

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 of the 61 people sentenced to imprisonment for persistent sexual abuse of a child under 16 were eligible to have a non-parole period fixed. Of these people, 58 were given a non-parole period (95.1%).[15]

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 to 28 years, while the median non-parole period was 5 years and 11 months (meaning that half of the non-parole periods were below 5 years and 11 months and half were above).

The non-parole periods for the 2 cases where the principal offence of persistent sexual abuse of a child under 16 was subject to standard sentence classification were 1 year and 8 years and 9 months.

The most common range of non-parole period was 3 to less than 4 years (12 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, 2015-16 to 2019-20

Non-parole period Number of people Standard sentence
1 to less than 2 years 3 1
2 to less than 3 years 3 0
3 to less than 4 years 12 0
4 to less than 5 years 6 0
5 to less than 6 years 5 0
6 to less than 7 years 5 0
7 to less than 8 years 8 0
8 to less than 9 years 3 1
9 to less than 10 years 3 0
10 to less than 11 years 4 0
11 to less than 12 years 1 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 0 0
17 to less than 18 years 0 0
18 to less than 19 years 1 0
19 to less than 20 years 0 0
20 to less than 21 years 0 0
21 to less than 22 years 0 0
22 to less than 23 years 0 0
23 to less than 24 years 0 0
24 to less than 25 years 0 0
25 to less than 26 years 0 0
26 to less than 27 years 0 0
27 to less than 28 years 0 0
28 to less than 29 years 1 0
No non-parole period 3 0
Total people 61 2

Total effective sentences of imprisonment and non-parole periods

Figure 8 represents the 58 people who were sentenced to imprisonment for persistent sexual abuse of a child under 16 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 2018-19, the average total effective sentence decreased from 10 years and 1 month in 2015-16 to 7 years and 4 months in 2018-19. Over the same period, the average non-parole period decreased from 7 years and 4 months in 2015-16 to 4 years and 6 months in 2018-19. In 2019-20 the average total effective sentence and average non-parole period significantly increased from those in 2018-19. The increases in 2019-20 were largely driven by 1 case (out of 7) in which a 35-year total effective sentence and a 28-year non-parole period were applied.[16]

Figure 8: The average total effective sentence and the average non-parole period for people sentenced to imprisonment with a non-parole period for persistent sexual abuse of a child under 16 by financial year

Financial year Average total effective sentence length Average non-parole period
2015-16 10 years and 1 month 7 years and 4 months
2016-17 9 years 6 years and 4 months
2017-18 8 years and 2 months 5 years and 6 months
2018-19 7 years and 4 months 4 years and 6 months
2019-20 13 years and 1 month 9 years and 6 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 2015-16 to 2019-20, 66 people were sentenced for persistent sexual abuse of a child under 16 in the higher courts. Of these people, 61 (92.4%) were given a principal sentence of imprisonment.

The number and range of offences for which people with a principal offence of persistent sexual abuse of a child under 16 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 year to 35 years and non-parole periods ranged from 1 year to 28 years. The median total effective sentence was 8 years, while the median principal imprisonment length was 6 years and 6 months.

On average, people sentenced for persistent sexual abuse of a child under 16 were found guilty of 5.79 offences each, with a maximum of 67 offences.

Both of the principal offences of persistent sexual abuse of a child under 16 subject to a standard sentence in this period received a prison term. The imprisonment terms on each of the charges were 2 years and 6 years, while their total effective sentences were 2 years and 12 years and 2 months.

Endnotes

1. This Sentencing Snapshot is an update of Sentencing Snapshot no. 232, which describes sentencing trends for persistent sexual abuse of a child under 16 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 49J. Prior to 1 July 2017, the 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) and 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 period.

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

5. Crimes Act 1958 (Vic) s 49J(2A).

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

7. If a person is sentenced for a case with a single charge, 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. The sentencing remarks for 1 of the 2 standard sentence cases are publicly available: DPP v Snow (A Pseudonym) [2020] VCC 146 (25 February 2020).

9. 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.

10. 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.

11. 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.

12. 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.

13. 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, when a persistent sexual abuse of a child under 16 offence is classified as a Category 1 offence, it can no longer receive a combined order of imprisonment and a community correction order: Sentencing Act 1991 (Vic) s 5(2G).

14. 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.

15. A non-parole period was not set for 3 people who were eligible for a non-parole period.

16. R v Kunsevitsky [2020] VSC 41 (29 January 2020).