Sentencing Snapshot 260: Sentencing Trends for Sexual Penetration of a Child Aged under 12 in the Higher Courts of Victoria 2015–16 to 2019–20

Date of Publication

Sentencing Snapshot no. 260 describes sentencing outcomes for the offence of sexual penetration of a child aged under 12  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 under 12  on SACStat.

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

 

 

Snapshot 260: Sexual Penetration of a Child Aged under 12

Introduction

This Sentencing Snapshot describes sentencing outcomes[1] for the offence of sexual penetration of a child under 12[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 penetration of a child under 12 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 under 12 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 25 years’ imprisonment.

Sexual penetration of a child under 12 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. Sexual penetration of a child under 12 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] In some sections, this Snapshot distinguishes charges and cases subject to standard sentence classification.

Sexual penetration of a child under 12 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, 64 people were sentenced in the higher courts for a principal offence of sexual penetration of a child under 12.

Figure 1 shows the number of people sentenced for the principal offence of sexual penetration of a child under 12 by financial year. There were 18 people sentenced for this offence in 2019-20, twice as many as in the previous year. The number of people sentenced was highest in 2015-16 and 2019-20 (18 people in each year) and lowest in 2016-17 (7 people). There were 6 people whose offending attracted standard sentence classification.

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

Financial Year Total Standard sentence
2015-16 18 0
2016-17 7 0
2017-18 12 0
2018-19 9 0
2019-20 18 6
Total 64 6

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 penetration of a child under 12.

A custodial sentence involves at least some element of immediate imprisonment or detention.[7] The rate of custodial sentences was lowest in 2016-17 (85.7%) and highest in 2015-16 (94.4%). Over the five-year period, 90.6% 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 under 12 by financial year

Financial Year Immediate custodial sentence Non-custodial sentence
2015-16 94.4% 5.6%
2016-17 85.7% 14.3%
2017-18 91.7% 8.3%
2018-19 88.9% 11.1%
2019-20 88.9% 11.1%
Total 90.6% 9.4%

Table 1 shows the principal sentence imposed for sexual penetration of a child under 12 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 under 12 received a principal sentence of imprisonment (87.5% or 56 of 64 people). The rate of imprisonment sentences was highest in 2015-16 (94.4%) and lowest in 2016-17 (71.4%). All offenders whose offence attracted standard sentence classification received a sentence of imprisonment.

Table 1: The number and percentage of people sentenced for sexual penetration of a child under 12 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 17 (94.4%) 5 (71.4%) 11 (91.7%) 7 (77.8%) 10 (55.6%) 50 (78.1%)
Youth justice centre order 0 (0.0%) 0 (0.0%) 0 (0.0%) 1 (11.1%) 0 (0.0%) 1 (1.6%)
Community correction order 1 (5.6%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 1 (5.6%) 2 (3.1%)
Partially suspended sentence 0 (0.0%) 1 (14.3%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 1 (1.6%)
Wholly suspended sentence 0 (0.0%) 0 (0.0%) 1 (8.3%) 1 (11.1%) 1 (5.6%) 3 (4.7%)
Adjourned undertaking 0 (0.0%) 1 (14.3%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 1 (1.6%)
Total non-standard sentence 18 7 12 9 12 58
Standard sentence
Imprisonment 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 6 (33.3%) 6 (9.4%)
Total standard sentence 0 0 0 0 6 6
Total people sentenced 18 7 12 9 18 64

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 under 12 must be considered in this broader context.

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

Principal Sentence of Imprisonment

Table 2 shows that a total of 56 people received a principal sentence of imprisonment for sexual penetration of a child under 12. Most people received a non-aggregate term of imprisonment (96.4%, or 54 of 56 people).[12] There was 1 person who received a community correction order in addition to their term of imprisonment. All people 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 under 12 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 15 (88.2%) 5 (100.0%) 10 (90.9%) 7 (100.0%) 10 (62.5%) 47 (83.9%)
Imprisonment and community correction order (combined) 0 (0.0%) 0 (0.0%) 1 (9.1%) 0 (0.0%) 0 (0.0%) 1 (1.8%)
Total non-aggregate imprisonment 15 (88.2%) 5 (100.0%) 11 (100.0%) 7 (100.0%) 10 (62.5%) 48 (85.7%)
Aggregate imprisonment 2 (11.8%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 2 (3.6%)
Total aggregate imprisonment 2 (11.8%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 2 (3.6%)
Total non-standard sentence 17 5 11 7 10 50
Standard sentence
Imprisonment 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 6 (37.5%) 6 (10.7%)
Total standard sentence 0 0 0 0 6 6
Total people sentenced 17 5 11 7 16 56

Figure 3 shows the length of imprisonment for the 54 people who received a non-aggregate term. Imprisonment terms ranged from 5 months to 10 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).

Imprisonment terms imposed on the 6 principal offences of sexual penetration of a child under 12 subject to the standard sentence ranged from 4 years to 9 years.

The most common range of imprisonment terms was 4 to less than 5 years (11 people).

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

Imprisonment length Number of people Standard sentence
Less than 1 year 1 0
1 to less than 2 years 0 0
2 to less than 3 years 5 0
3 to less than 4 years 6 0
4 to less than 5 years 11 2
5 to less than 6 years 10 0
6 to less than 7 years 10 1
7 to less than 8 years 7 1
8 to less than 9 years 2 1
9 to less than 10 years 1 1
10 to less than 11 years 1 0
Total 54 6

Figure 4 shows the average length of imprisonment imposed on people sentenced for sexual penetration of a child under 12, for all people and those whose offending attracted the standard sentence. For all 54 people, the average imprisonment term ranged from 4 years and 1 month in 2017-18 to 6 years in 2016-17. Over the five years, the average length of imprisonment for sexual penetration of a child under 12 was 5 years.

For the 6 charges subject to the standard sentence, the average sentence was 6 years and 6 months. The average term of standard sentence offences was higher than the overall average in 2019-20.

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

Financial year Number of people Number of people - standard sentence Average (years) Average - standard sentence
2015-16 15 0 4 years and 3 months 0 years and 0 months
2016-17 5 0 6 years and 0 months 0 years and 0 months
2017-18 11 0 4 years and 1 month 0 years and 0 months
2018-19 7 0 5 years and 9 months 0 years and 0 months
2019-20 16 6 5 years and 10 months 6 years and 6 months

Other Offences Finalised at the Same Hearing

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

Figure 5 shows the number of people sentenced for the principal offence of sexual penetration of a child under 12 by the total number of sentenced offences per person. The number of sentenced offences per person ranged from 1 to 22, and the median was 4 offences. There were 10 people (15.6%) sentenced for the single offence of sexual penetration of a child under 12. The average number of offences per person was 5.11.

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

Number of offences Number of people
1 10
2 11
3 5
4 13
5-9 17
10-19 7
20+ 1
Total 64

Table 3 shows the 10 most common offences, by number and percentage, for people sentenced for sexual penetration of a child under 12. The last column sets out the average number of offences sentenced per person. For example, 41 of the total 64 people (64.1%) also received sentences for indecent act with or in the presence of a child under 16. On average, they were sentenced for 2.59 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 sexual penetration of a child under 12 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 under 12 64 100.0% 1.77
2. Indecent act with or in the presence of a child under the age of 16 41 64.1% 2.59
3. Sexual penetration of a child aged 12 to under 16 14 21.9% 2.29
4. Make or produce child pornography 7 10.9% 1.86
5. Sexual assault of a child under 16 6 9.4% 1.50
6. Knowingly possess child abuse material 5 7.8% 1.20
7. Knowingly possess child pornography 4 6.2% 1.00
8. Sexual assault 3 4.7% 1.33
9. Fail to comply with reporting obligations 2 3.1% 4.50
10. Produce child abuse material 2 3.1% 2.00
People sentenced 64 100.0% 5.11

Total Effective Imprisonment Terms

Figure 6 shows the number of people sentenced to imprisonment for sexual penetration of a child under 12 by length of their total effective sentence. Total effective sentences ranged from 8 months to 15 years and 6 months, while the median total effective sentence was 7 years (meaning that half of the total effective sentences were below 7 years and half were above).

Total effective sentences for the 6 cases where the principal offence of sexual penetration of a child under 12 was subject to the standard sentence ranged from 4 years and 6 months to 11 years and 4 months.

The most common range of total effective sentences was 7 to less than 8 years (9 people).

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

Total effective sentence Number of people Standard sentence
Less than 1 year 1 0
1 to less than 2 years 0 0
2 to less than 3 years 1 0
3 to less than 4 years 4 0
4 to less than 5 years 7 2
5 to less than 6 years 6 0
6 to less than 7 years 6 0
7 to less than 8 years 9 1
8 to less than 9 years 5 0
9 to less than 10 years 6 2
10 to less than 11 years 3 0
11 to less than 12 years 3 1
12 to less than 13 years 3 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
Total 56 6

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 56 people who were sentenced to imprisonment for the principal offence of sexual penetration of a child under 12, 55 were eligible to have a non-parole period fixed.[13] All of these 55 people were given a non-parole period.

Figure 7 shows the number of people sentenced to imprisonment for sexual penetration of a child under 12, by length of non-parole period. Non-parole periods ranged from 1 year and 6 months to 11 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).

The non-parole period for the 6 cases where the principal offence of sexual penetration of a child under 12 was subject to the standard sentence ranged from 2 years and 10 months to 8 years.

The most common range of non-parole periods was 5 to less than 6 years (11 people).

Note that it was not possible to determine the length of the non-parole period for 1 person.[14]

Figure 7: The number of people sentenced to imprisonment for sexual penetration of a child under 12 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 2 0
2 to less than 3 years 10 1
3 to less than 4 years 5 1
4 to less than 5 years 8 1
5 to less than 6 years 11 1
6 to less than 7 years 7 1
7 to less than 8 years 4 0
8 to less than 9 years 3 1
9 to less than 10 years 3 0
10 to less than 11 years 0 0
11 to less than 12 years 1 0
Undetermined 1 0
No non-parole period 1 0
Total 56 6

Total Effective Sentences of Imprisonment and Non-Parole Periods

Figure 8 represents the 54 people who were sentenced to imprisonment for sexual penetration of a child under 12 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 6 years and 6 months in 2017-18 to 8 years and 9 months in 2018-19. Over the same period, the average non-parole period ranged from 4 years and 5 months in 2015-16 to 6 years in 2018-19.

The average total effective sentence for the 6 cases subject to the standard sentence and that received a non-parole period was 7 years and 8 months, and their average non-parole period was 5 years.

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 under 12 by financial year

Financial year Average total effective sentence length Average non-parole period
2015-16 6 years and 7 months 4 years and 5 months
2016-17 8 years and 4 months 5 years and 7 months
2017-18 6 years and 6 months 4 years and 6 months
2018-19 8 years and 9 months 6 years and 0 months
2019-20 7 years and 10 months 5 years and 1 month

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

Summary

From 2015-16 to 2019-20, 64 people were sentenced for sexual penetration of a child under 12 in the higher courts. Of these people, 56 (87.5%) 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 under 12 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 8 months to 15 years and 6 months, and non-parole periods ranged from 1 year and 6 months to 11 years. The median total effective sentence was 7 years, while the median principal imprisonment length was 5 years.

On average, people sentenced for sexual penetration of a child under 12 were found guilty of 5.11 offences each, with a maximum of 22 offences.

All of the 6 principal offences of sexual penetration of a child under 12 subject to standard sentence classification in this period received a prison term. Their median imprisonment sentence was 6 years and 10 months, their median total effective sentence was 8 years and 3 months, and their median non-parole period was 5 years and 2 months.

Endnotes

1. This Sentencing Snapshot is an update of Sentencing Snapshot no. 235, which describes sentencing trends for sexual penetration of a child under 12 between 2013-14 and 2017-18.

2. The offence of sexual penetration of a child aged under 12 has undergone several changes over time. Prior to 17 March 2010, this offence was known as ‘sexual penetration of a child under the age of 10’ (Crimes Act 1958 (Vic) s 45(2)(a)) and had a maximum penalty of 25 years’ imprisonment. On 17 March 2010, the offence was renamed to ‘sexual penetration of a child under the age of 12’. On 1 July 2017, this offence was transferred to section 49A of the Crimes Act 1958 (Vic), retaining the maximum penalty of 25 years’ imprisonment. This Snapshot includes all three versions of this offence, provided they were 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 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. 259, which describes sentencing trends for sexual penetration of a child aged 12 to under 16.

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

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. 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 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. However, sexual penetration of a child under the age of 12 offences classified as Category 1 offences can no longer receive combined orders of imprisonment and a community correction order: Sentencing Act 1991 (Vic) s 5(2G).

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. One person was not eligible to have a non-parole period fixed because they were given a total effective sentence length of less than 1 year.

14. 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.