Sentencing Snapshot 259: Sentencing Trends for Sexual Penetration of a Child Aged 12 to under 16 in the Higher Courts of Victoria 2015–16 to 2019–20

Date of Publication

Sentencing Snapshot no. 259 describes sentencing outcomes for the offence of sexual penetration of a child aged 12 to 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 sexual penetration of a child aged 12 to under 16  on SACStat.

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

 

 

Snapshot 259: Sexual Penetration of a Child Aged 12 to under 16

Introduction

This Sentencing Snapshot describes sentencing outcomes[1] for the offence of sexual penetration of a child aged 12 to under 16[2] (inclusive) 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 penetration of a child aged 12 to under 16 and other offences is available on Sentencing Advisory Council Statistics (SACStat).

A person who takes part in an act of sexual penetration of a child aged between 12 and under 16 is guilty of an indictable offence. Indictable offences are more serious offences triable before a judge and jury in the County or Supreme Court. The maximum penalty for this offence is 15 years’ imprisonment and/or a fine of 1,800 penalty units.[4]

Sexual penetration of a child aged 12 to under 16 is 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 6 years represents the middle of the range of objective seriousness for this offence.[6] In some sections, this Snapshot distinguishes charges and cases subject to standard sentence classification.

Sexual penetration of a child aged 12 to under 16 was the principal offence in 3.2% of cases sentenced in the higher courts between 2015-16 and 2019-20.

People Sentenced

From 2015-16 to 2019-20, 288 people were sentenced in the higher courts for a principal offence of sexual penetration of a child aged 12 to under 16.

Figure 1 shows the number of people sentenced for the principal offence of sexual penetration of a child aged 12 to under 16 by financial year. There were 55 people sentenced for this offence in 2019-20, the same as in the previous year. The number of people sentenced was highest in 2016-17 and 2017-18 (62 people in each year) and lowest in 2015-16 (54 people). There were 18 people whose offending attracted standard sentence classification.

Figure 1: The number of people sentenced for sexual penetration of a child aged 12 to under 16 by financial year

Financial Year Total Standard sentence
2015-16 54 0
2016-17 62 0
2017-18 62 0
2018-19 55 1
2019-20 55 17
Total 288 18

Sentence Types and Trends

Figure 2 shows the proportion of people who received a custodial sentence and non-custodial sentence for the principal offence of sexual penetration of a child aged 12 to under 16.

A custodial sentence involves at least some element of immediate imprisonment or detention.[7] The rate of custodial sentences was lowest in 2015-16 (44.4%) and highest in 2019-20 (87.3%). Over the five-year period, 62.2% of people were given a custodial sentence.

Figure 2: The percentage of people who received a custodial sentence and non-custodial sentence for sexual penetration of a child aged 12 to under 16 by financial year

Financial Year Immediate custodial sentence Non-custodial sentence
2015-16 44.4% 55.6%
2016-17 61.3% 38.7%
2017-18 58.1% 41.9%
2018-19 60.0% 40.0%
2019-20 87.3% 12.7%
Total 62.2% 37.8%

Table 1 shows the principal sentence imposed for sexual penetration of a child aged 12 to under 16 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. [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, most people sentenced for sexual penetration of a child aged 12 to under 16 received a principal sentence of imprisonment (59.7% or 172 of 288 people). The rate of imprisonment sentences was highest in 2019-20 (81.8%) and lowest in 2015-16 (42.6%). Fifteen of the 18 offenders whose offence attracted standard sentence classification received a sentence of imprisonment (83.3%).

Table 1: The number and percentage of people sentenced for sexual penetration of a child aged 12 to under 16 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 23 (42.6%) 37 (59.7%) 35 (56.5%) 31 (56.4%) 31 (56.4%) 157 (54.5%)
Youth justice centre order 1 (1.9%) 1 (1.6%) 1 (1.6%) 0 (0.0%) 1 (1.8%) 4 (1.4%)
Community correction order 24 (44.4%) 19 (30.6%) 20 (32.3%) 15 (27.3%) 4 (7.3%) 82 (28.5%)
Wholly suspended sentence 1 (1.9%) 1 (1.6%) 1 (1.6%) 5 (9.1%) 1 (1.8%) 9 (3.1%)
Adjourned undertaking 5 (9.3%) 4 (6.5%) 5 (8.1%) 2 (3.6%) 1 (1.8%) 17 (5.9%)
Other 0 (0.0%) 0 (0.0%) 0 (0.0%) 1 (1.8%) 0 (0.0%) 1 (0.3%)
Total non-standard sentence 54 62 62 54 38 270
Standard sentence
Imprisonment 0 (0.0%) 0 (0.0%) 0 (0.0%) 1 (1.8%) 14 (25.5%) 15 (5.2%)
Youth justice centre order 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 2 (3.6%) 2 (0.7%)
Community correction order 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 1 (1.8%) 1 (0.3%)
Total standard sentence 0 0 0 1 17 18
Total people sentenced 54 62 62 55 55 288

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 penetration of a child aged 12 to under 16 must be considered in this broader context.

The following sections analyse the use of imprisonment for the offence of sexual penetration of a child aged 12 to under 16 from 2015-16 to 2019-20.

Principal Sentence of Imprisonment

Table 2 shows that a total of 172 people received a principal sentence of imprisonment for sexual penetration of a child aged 12 to under 16, by whether the offending attracted standard sentence classification. Most people received a non-aggregate term of imprisonment (94.8% or 163 of 172 people).[12] There were 32 people who received a community correction order in addition to their term of imprisonment. All but one person whose offending attracted standard sentence classification received non-aggregate imprisonment terms.

Table 2: The number and percentage of people sentenced to imprisonment for sexual penetration of a child aged 12 to under 16 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 18 (78.3%) 26 (70.3%) 31 (88.6%) 27 (84.4%) 24 (53.3%) 126 (73.3%)
Imprisonment and community correction order (combined) 2 (8.7%) 9 (24.3%) 3 (8.6%) 4 (12.5%) 5 (11.1%) 23 (13.4%)
Total non-aggregate imprisonment 20 (87.0%) 35 (94.6%) 34 (97.1%) 31 (96.9%) 29 (64.4%) 149 (86.6%)
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) 3 (13.0%) 2 (5.4%) 1 (2.9%) 0 (0.0%) 2 (4.4%) 8 (4.7%)
Total aggregate imprisonment 3 (13.0%) 2 (5.4%) 1 (2.9%) 0 (0.0%) 2 (4.4%) 8 (4.7%)
Total non-standard sentence 23 37 35 31 31 157
Standard sentence
Imprisonment 0 (0.0%) 0 (0.0%) 0 (0.0%) 1 (3.1%) 13 (28.9%) 14 (8.1%)
Aggregate imprisonment and community correction order (combined) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 1 (2.2%) 1 (0.6%)
Total standard sentence 0 0 0 1 14 15
Total people sentenced 23 37 35 32 45 172

Figure 3 shows the length of imprisonment for the 163 people who received a non-aggregate term. Imprisonment terms ranged from 1 month to 7 years, while the median length of imprisonment was 3 years (meaning that half of the imprisonment terms were below 3 years and half were above).

Imprisonment terms imposed on the principal offences of sexual penetration of a child aged 12 to under 16 subject to the standard sentence ranged from 2 months to 7 years.

The most common range of imprisonment terms was 3 to less than 4 years (51 people).

Figure 3: The number of people sentenced to imprisonment for sexual penetration of a child aged 12 to under 16 by length of imprisonment term, 2015-16 to 2019-20

Imprisonment length Number of people Standard sentence
Less than 1 year 22 1
1 to less than 2 years 15 0
2 to less than 3 years 25 2
3 to less than 4 years 51 6
4 to less than 5 years 26 1
5 to less than 6 years 17 1
6 to less than 7 years 6 2
7 to less than 8 years 1 1
Total 163 14

Figure 4 shows the average length of imprisonment imposed on people sentenced for sexual penetration of a child aged 12 to under 16, for all people and those whose offending attracted the standard sentence. For all 163 people, the average imprisonment term ranged from 2 years and 4 months in 2016-17 to 3 years and 7 months in 2019-20. Over the five years, the average length of imprisonment for sexual penetration of a child aged 12 to under 16 was 3 years.

For the 14 charges subject to the standard sentence, the average sentence was 3 years and 10 months. The average term of standard sentence offences was higher than the overall average in both 2018-19 (1 charge) and 2019-20 (13 charges).

Figure 4: The average length of imprisonment imposed on people sentenced for sexual penetration of a child aged 12 to under 16, by financial year

Financial year Number of people Number of people - standard sentence Average (years) Average - standard sentence
2015-16 20 0 2 years and 7 months 0 years and 0 months
2016-17 35 0 2 years and 4 months 0 years and 0 months
2017-18 34 0 3 years and 2 months 0 years and 0 months
2018-19 32 1 2 years and 11 months 3 years and 6 months
2019-20 42 13 3 years and 7 months 3 years and 11 months

Other Offences Finalised at the Same Hearing

Sometimes people prosecuted for sexual penetration of a child aged 12 to 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 sexual penetration of a child aged 12 to under 16.

Figure 5 shows the number of people sentenced for the principal offence of sexual penetration of a child aged 12 to under 16 by the total number of sentenced offences per person. The number of sentenced offences per person ranged from 1 to 29, and the median was 3 offences. There were 81 people (28.1%) sentenced for the single offence of sexual penetration of a child aged 12 to under 16. The average number of offences per person was 3.96.

Figure 5: The number of people sentenced for the principal offence of sexual penetration of a child aged 12 to under 16 by the number of sentenced offences per person, 2015-16 to 2019-20

Number of offences Number of people
1 81
2 54
3 41
4 27
5-9 62
10-19 21
20+ 2
Total 288

Table 3 shows the 10 most common offences, by number and percentage, for people sentenced for sexual penetration of a child aged 12 to under 16. The last column sets out the average number of offences sentenced per person. For example, 18 of the total 288 people (6.3%) also received sentences for knowingly possess child pornography. On average, they were sentenced for 1.17 charges of knowingly possess child pornography per case.

Table 3: The number and percentage of people sentenced for the principal offence of sexual penetration of a child aged 12 to 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. Sexual penetration of a child aged 12 to under 16 288 100.0% 1.94
2. Indecent act with or in the presence of a child under the age of 16 81 28.1% 2.45
3. Knowingly possess child pornography 18 6.3% 1.17
4. Use a carriage service to transmit indecent communications to a child under 16 years of age 12 4.2% 2.08
5. Sexual assault of a child aged under 16 12 4.2% 1.83
6. Contravene a conduct condition of bail 10 3.5% 2.10
7. Fail to comply with reporting obligations 9 3.1% 2.56
8. Commit an indictable offence while on bail 9 3.1% 1.22
9. Persistent contravention of a family violence intervention notice or order 9 3.1% 1.11
10. Groom a child aged under 16 for a sexual offence 9 3.1% 1.00
People sentenced 288 100.0% 3.96

Total Effective Imprisonment Terms

Figure 6 shows the number of people sentenced to imprisonment for sexual penetration of a child aged 12 to under 16 by length of their total effective sentence. Total effective sentences ranged from 1 month to 11 years and 6 months, while the median total effective sentence was 4 years (meaning that half of the total effective sentences were below 4 years and half were above).

Total effective sentences for the 15 cases where the principal offence of sexual penetration of a child aged 12 to under 16 was subject to the standard sentence ranged from 2 months to 9 years and 10 months.

The most common ranges of total effective sentences were less than 1 year and 4 to less than 5 years (28 people each).

Figure 6: The number of people sentenced to imprisonment for sexual penetration of a child aged 12 to under 16 by length of total effective sentence, 2015-16 to 2019-20

Total effective sentence Number of people Standard sentence
Less than 1 year 28 2
1 to less than 2 years 13 0
2 to less than 3 years 18 0
3 to less than 4 years 21 4
4 to less than 5 years 28 2
5 to less than 6 years 18 4
6 to less than 7 years 20 0
7 to less than 8 years 7 0
8 to less than 9 years 6 2
9 to less than 10 years 4 1
10 to less than 11 years 6 0
11 to less than 12 years 3 0
Total 172 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 172 people who were sentenced to imprisonment for sexual penetration of a child aged 12 to under 16, 144 were eligible to have a non-parole period fixed.[13] Of these people, 131 were given a non-parole period (91.0%).[14]

Figure 7 shows the number of people sentenced to imprisonment for sexual penetration of a child aged 12 to under 16, by length of non-parole period. Non-parole periods ranged from 6 months to 8 years, while the median non-parole period was 3 years (meaning that half of the non-parole periods were below 3 years and half were above).

The non-parole period for the 13 cases where the principal offence of sexual penetration of a child aged 12 to under 16 was subject to the standard sentence, and the person was given a non-parole period, ranged from 1 year and 8 months to 7 years and 2 months.[15]

The most common range of non-parole period was 2 to less than 3 years (34 people).

Note that it was not possible to determine the length of the non-parole period for 6 people.[16]

Figure 7: The number of people sentenced to imprisonment for sexual penetration of a child aged 12 to under 16 by length of non-parole period, 2015-16 to 2019-20

Non-parole period Total Standard sentence
Less than 1 year 3 0
1 to less than 2 years 23 1
2 to less than 3 years 34 5
3 to less than 4 years 27 4
4 to less than 5 years 17 0
5 to less than 6 years 6 2
6 to less than 7 years 8 0
7 to less than 8 years 6 1
8 to less than 9 years 1 0
Undetermined 6 0
No non-parole period 41 2
Total 172 15

Total Effective Sentences of Imprisonment and Non-Parole Periods

Figure 8 represents the 125 people who were sentenced to imprisonment for sexual penetration of a child aged 12 to 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 2019-20, the average total effective sentence ranged from 4 years and 3 months in 2016-17 to 5 years and 9 months in 2019-20. Over the same period, the average non-parole period ranged from 2 years and 6 months in 2016-17 to 3 years and 7 months in 2019-20.

The average total effective sentence for the 13 cases subject to the standard sentence and that received a non-parole period was 5 years and 4 months, and their average non-parole period was 3 years and 4 months

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 penetration of a child aged 12 to under 16 by financial year

Financial year Average total effective sentence length Average non-parole period
2015-16 5 years and 3 months 3 years and 2 months
2016-17 4 years and 3 months 2 years and 6 months
2017-18 5 years and 5 months 3 years and 4 months
2018-19 5 years and 2 months 3 years and 2 months
2019-20 5 years and 9 months 3 years and 7 months

Further data on total effective sentences of imprisonment and corresponding non-parole periods for sexual penetration of a child aged 12 to under 16 is available on SACStat.

Summary

From 2015-16 to 2019-20, 288 people were sentenced for sexual penetration of a child aged 12 to under 16 in the higher courts. Of these people, 172 (59.7%) were given a principal sentence of imprisonment.

The number and range of offences for which people with a principal offence of sexual penetration of a child aged 12 to 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 month to 11 years and 6 months, and non-parole periods ranged from 6 months to 8 years. The median total effective sentence was 4 years, while the median principal imprisonment length was 3 years.

On average, people sentenced for sexual penetration of a child aged 12 to under 16 were found guilty of 3.96 offences each, with a maximum of 29 offences.

Of the 18 principal offences of sexual penetration of a child aged 12 to under 16 subject to the standard sentence in this period, 15 received a prison term (83.3%). Their median imprisonment sentence was 3 years and 6 months, and their median total effective sentence was 4 years and 9 months. The median non-parole period was 3 years for the 13 cases given a non-parole period.

Endnotes

1. This Sentencing Snapshot is an update of Sentencing Snapshot no. 234, which describes sentencing trends for sexual penetration of a child aged 12 to under 16 between 2013-14 and 2017-18.

2. The offence of sexual penetration of a child aged 12 to under 16 has undergone several changes over time. Prior to 17 March 2010, this offence was known as ‘sexual penetration of a child aged between 10 and 16’ (Crimes Act 1958 (Vic) s 45(2)(c)) and had a maximum penalty of 10 years’ imprisonment. On 17 March 2010, the offence was renamed ‘sexual penetration of a child aged between 12 and 16’. On 1 July 2017, this offence was transferred to section 49B of the Crimes Act 1958 (Vic), with a new maximum penalty of 15 years’ imprisonment. Additionally, the separate offence of ‘sexual penetration of a child aged 12 and 16 under care, supervision or authority’ was repealed on the same date, with any new charges of this offence to be prosecuted under section 49B (with the ‘care, supervision or authority’ of the offender acting as a possible aggravating factor for sentencing purposes). To maintain meaningful comparison over the period, this Snapshot includes the offence of sexual penetration of a child aged between 10 and 16, sexual penetration of a child aged between 12 and 16 and sexual penetration of a child aged between 12 and 16 under care, supervision, or authority, provided the offence was sentenced in the higher courts of Victoria from 2015-16 to 2019-20.

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.

The raw data used for offences of sexual penetration of a child aged under 16 does not always specify whether the child was aged under 12 or aged 12 to 15. In order to determine the specific offence in those cases, the Council reviews sentencing remarks. However, at the time of publication, sentencing remarks for some cases were unavailable or provided insufficient detail to identify the age of the victim (21 of 392 cases or 5%). These cases have been excluded from both this Sentencing Snapshot and Sentencing Snapshot no. 260, which describes sentencing trends for sexual penetration of a child aged under 12.

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. Crimes Act 1958 (Vic) s 49B(3).

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

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. 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 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 principal sentence.

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. 28 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. 13 people were eligible to have a non-parole period but did not receive one.

15. Two people whose offending attracted standard sentence classification received total effective sentences of less than 1 year and did not have a non-parole period fixed.

16. Six people were 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.