Sentencing Snapshot 281: Sentencing Trends for Persistent Sexual Abuse of a Child under 16 in the Higher Courts of Victoria 2017-18 to 2021-22

Date of Publication

Sentencing Snapshot no. 281 describes sentencing outcomes for the offence of persistent sexual abuse of a child under 16 in the County and Supreme Courts of Victoria from 2017-18 to 2021-22.

This is the latest Snapshot for this offence.

You can access case summaries for persistent sexual abuse offences from the Judicial College of Victoria’s Sentencing Manual Case Summaries.

You can also access statistics for persistent sexual abuse of a child under 16 on SACStat.

Authored and published by the Sentencing Advisory Council
© State of Victoria, Sentencing Advisory Council, 2023

Snapshot 281: 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 2017-18 to 2021-22.[2] Adjustments made by the Court of Appeal to sentence or conviction as at December 2022 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 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. For this offence, this classification means that courts must always impose a custodial sentence.[4] Persistent sexual abuse of a child under 16 is also a standard sentence offence if it was committed on or after 1 February 2018. 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.[5]

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.[6]

Persistent sexual abuse of a child under 16 was the principal offence in 0.6% of cases sentenced in the higher courts between 2017-18 and 2021-22.


Effect of COVID-19 on sentencing data

The data in this Snapshot is likely to have been affected by the COVID-19 pandemic. For instance:

  • the number of people sentenced since March 2020 may be lower than in previous years because the pandemic caused delays in court proceedings;
  • court backlogs may have led to prioritisation of more serious cases and therefore higher imprisonment rates than in previous years;
  • prison sentences may be shorter than in previous years to reflect the combined effect of:
    1. guilty pleas having an 'augmented mitigatory effect' (Worboyes v The Queen [2021] VSCA 169) because they help to relieve the strain on the justice system; and
    2. the experience of prison being more burdensome due to increased stress on prisoners and their families and changes in custodial conditions.

People sentenced

From 2017-18 to 2021-22, 48 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 7 people sentenced for this offence in 2021-22, down from 8 in the previous year. The number of people sentenced was highest in 2017-18 and 2018-19 (12 people each) and lowest in 2021-22 (7 people). There were 7 people whose offending attracted standard sentence classification.

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

Financial year Number Standard sentence number
2017-18 12 0
2018-19 12 0
2019-20 9 2
2020-21 8 2
2021-22 7 3
Total 48 7

Sentence types and trends

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

An immediate custodial sentence involves at least some element of immediate imprisonment or detention.[7] Over the five-year period, 93.8% of people were given an immediate custodial sentence.

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

Financial year Custodial sentence Non-custodial sentence
2017-18 91.7% 8.3%
2018-19 91.7% 8.3%
2019-20 88.9% 11.1%
2020-21 100.0% 0.0%
2021-22 100.0% 0.0%

Table 1 shows the principal sentence types imposed for the principal offence of persistent sexual abuse of a child under 16 from 2017-18 to 2021-22. The principal sentence is the most serious sentence imposed for the principal offence.[8]

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 (91.7% or 44 of 48 people). All offenders whose offence attracted standard sentence classification received 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 2017-18 2018-19 2019-20 2020-21 2021-22 Total
Non-standard sentence            
Imprisonment 11 (91.7%) 11 (91.7%) 6 (66.7%) 5 (62.5%) 4 (57.1%) 37 (77.1%)
Community correction order 1 (8.3%) 1 (8.3%) 1 (11.1%) 0 (0.0%) 0 (0.0%) 3 (6.3%)
Partially suspended sentence 0 (0.0%) 0 (0.0%) 0 (0.0%) 1 (12.5%) 0 (0.0%) 1 (2.1%)
Standard sentence            
Imprisonment 0 (0.0%) 0 (0.0%) 2 (22.2%) 2 (25.0%) 3 (42.9%) 7 (14.6%)
Total people sentenced 12 12 9 8 7 48

Principal and total effective sentences of imprisonment

The following sections analyse the use of imprisonment for the offence of persistent sexual abuse of a child under 16 from 2017-18 to 2021-22.

The principal sentence describes sentences for the offence at a charge level.

The total effective sentence is the sentence imposed for all charges in a case and applies at a case level. Where a case involves multiple charges, the total effective sentence will be either the same as or longer than the principal sentence.

Principal sentences of imprisonment

All 44 principal sentences of imprisonment for persistent sexual abuse of a child under 16 were non-aggregate imprisonment terms, that is, the imprisonment terms were not part of an aggregate sentence.[9] One person received a community correction order in addition to their imprisonment term.

The lengths of these imprisonment terms are shown in Figure 3. Imprisonment lengths ranged from 1 year to 13 years,[10] while the median imprisonment length was 7 years. The most common ranges of imprisonment lengths were 5 to less than 6 years and 6 to less than 7 years (8 principal sentences each).

Figure 3: The number of principal sentences of imprisonment for persistent sexual abuse of a child under 16, by range of imprisonment lengths, 2017-18 to 2021-22

Imprisonment length Number Standard sentence number
1 to less than 2 years 1 0
2 to less than 3 years 1 1
3 to less than 4 years 2 0
4 to less than 5 years 1 0
5 to less than 6 years 8 0
6 to less than 7 years 8 2
7 to less than 8 years 6 1
8 to less than 9 years 6 1
9 to less than 10 years 2 1
10 to less than 11 years 5 0
11 to less than 12 years 2 1
12 to less than 13 years 1 0
13 to less than 14 years 1 0
Total 44 7

Figure 4 shows the average imprisonment length for the principal offence of persistent sexual abuse of a child under 16. For all 44 people, average imprisonment lengths ranged from 6 years and 1 month in 2018-19 to 9 years and 1 month in 2021-22. Over the five-year period, the average imprisonment length for persistent sexual abuse of a child under 16 was 7 years. The average imprisonment length for persistent sexual abuse of a child under 16 as a standard sentence offence was 7 years and 2 months.

The imprisonment lengths for persistent sexual abuse of a child under 16 as a standard sentence offence are presented separately because courts sentencing standard sentence offences 'must only have regard to sentences previously imposed for the offence as a standard sentence offence'.[11] Courts sentencing non-standard sentence offences must have regard to sentences imposed when the offence both was and was not a standard sentence offence.

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

Financial year Number Standard sentence number Average Standard sentence average
2017-18 11 0 6 years and 8 months 0
2018-19 11 0 6 years and 1 month 0
2019-20 8 2 7 years and 6 months 4 years and 0 months
2020-21 7 2 6 years and 4 months 7 years and 3 months
2021-22 7 3 9 years and 1 month 9 years and 2 months
Total 44 7    

Total effective sentences of imprisonment

Figure 5 shows the lengths of total effective sentences of imprisonment in cases where persistent sexual abuse of a child under 16 was the principal offence. Total effective sentences ranged from 1 year and 1 month to 35 years,[12] while the median total effective sentence was 8 years.

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

Figure 5: The number of people sentenced to imprisonment for persistent sexual abuse of a child under 16, by length of total effective sentence, 2017-18 to 2021-22

Total effective imprisonment length Number Standard sentence number
1 to less than 2 years 1 0
2 to less than 3 years 1 1
3 to less than 4 years 2 0
4 to less than 5 years 1 0
5 to less than 6 years 6 0
6 to less than 7 years 6 1
7 to less than 8 years 3 0
8 to less than 9 years 4 1
9 to less than 10 years 3 0
10 to less than 11 years 3 0
11 to less than 12 years 2 0
12 to less than 13 years 5 3
13 to less than 14 years 1 0
14 to less than 15 years 0 0
15 to less than 16 years 2 0
16 to less than 17 years 2 1
17 to less than 18 years 0 0
18 to less than 19 years 0 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
29 to less than 30 years 0 0
30 years and more 1 0
Total 44 7

Non-parole periods

For imprisonment terms 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 44 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, 43 were given a non-parole period (97.7%).[13]

Figure 6 shows the lengths of non-parole periods for people sentenced to imprisonment for persistent sexual abuse of a child under 16. Non-parole periods ranged from 1 year to 28 years, while the median non-parole period was 5 years and 6 months.

The most common range of non-parole periods was 3 to less than 4 years (9 people).

Figure 6: The number of people sentenced to imprisonment for persistent sexual abuse of a child under 16, by length of non-parole period, 2017-18 to 2021-22

Non-parole period Number Standard sentence number
1 to less than 2 years 3 1
2 to less than 3 years 2 0
3 to less than 4 years 9 0
4 to less than 5 years 5 1
5 to less than 6 years 6 1
6 to less than 7 years 1 0
7 to less than 8 years 5 0
8 to less than 9 years 4 3
9 to less than 10 years 1 0
10 to less than 11 years 1 0
11 to less than 12 years 2 0
12 to less than 13 years 2 1
13 to less than 14 years 0 0
14 to less than 15 years 0 0
15 to less than 16 years 0 0
16 to less than 17 years 0 0
17 to less than 18 years 0 0
18 to less than 19 years 0 0
19 to less than 20 years 0 0
20 to less than 21 years 0 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 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 1 0
Total 44 7

Average total effective sentence of imprisonment and non-parole period

Figure 7 represents the average total effective sentence and average non-parole period for the 43 people who were sentenced to imprisonment for persistent sexual abuse of a child under 16 and received a non-parole period.

From 2017-18 to 2021-22, the average total effective sentence ranged from 7 years and 4 months in 2018-19 to 13 years and 1 month in 2019-20. Over the same period, the average non-parole period ranged from 4 years and 6 months in 2018-19 to 9 years and 6 months in 2019-20.

Figure 7: The average total effective sentence and 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 Number Average total effective sentence length Average non-parole people
2017-18 11 8 years and 4 months 5 years and 7 months
2018-19 10 7 years and 4 months 4 years and 6 months
2019-20 8 13 years and 1 month 9 years and 6 months
2020-21 7 9 years and 3 months 6 years and 1 month
2021-22 7 11 years and 2 months 7 years and 8 months

Figure 8 represents the average total effective sentence and average non-parole period for the 7 people who were sentenced to imprisonment and received a non-parole period for persistent sexual abuse of a child under 16 as a standard sentence offence. The average total effective sentence ranged from 7 years in 2019-20 to 12 years in 2021-22. The average non-parole period ranged from 4 years and 10 months in 2019-20 to 8 years and 6 months in 2021-22.

Figure 8: The average total effective sentence and non-parole period for people sentenced to imprisonment for persistent sexual abuse of a child under 16 as a standard sentence offence, 2017-18 to 2021-22

Financial year Number Average total effective sentence length Average non-parole period
2019-20 2 7 years and 0 months 4 years and 10 months
2020-21 2 9 years and 3 months 6 years and 0 months
2021-22 3 12 years and 0 months 8 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 9 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 59, and the median was 3 offences. There were 19 people (39.6%) sentenced for the single offence of persistent sexual abuse of a child under 16. The average number of offences per person was 5.0.

Figure 9: 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, 2017-18 to 2021-22

Number of offences Number of people
1 19
2 4
3 5
4 4
5-9 12
10-19 2
20-49 1
50-59 1
Total 48

Table 2 shows the 10 most common offences co-sentenced alongside persistent sexual abuse of a child under 16. The last column sets out the average number of offences sentenced per person. For example, 12 of the total 48 people (25.0%) were also sentenced for indecent act with or in the presence of a child under 16. On average, those 12 people were sentenced for 2.7 charges of indecent act with or in the presence of a child under 16 per case.

Table 2: 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 alongside persistent sexual abuse of a child under 16, 2017-18 to 2021-22

Offence Number of cases Percentage of cases Average number of proven offences per case
1. Persistent sexual abuse of a child under 16 48 100.0% 1.3
2. Indecent act with or in the presence of a child under 16 12 25.0% 2.7
3. Make or produce child pornography 6 12.5% 1.2
4. Incest 6 12.5% 1.0
5. Knowingly possess child abuse material 6 12.5% 1.0
6. Knowingly possess child pornography 4 8.3% 1.0
7. Sexual penetration of a child under 16 3 6.3% 3.3
8. Common law assault 2 4.2% 4.0
9. Indecent assault 2 4.2% 1.5
10. Persistent contravention of a family violence intervention order or safety notice 2 4.2% 1.5
Total 48 100.0% 5.0

Summary

From 2017-18 to 2021-22, 48 people were sentenced in the higher courts for persistent sexual abuse of a child under 16. Of these people, 44 (91.7%) received a principal sentence of imprisonment, and the remaining people received either a community correction order (3 people) or a partially suspended sentence (1 person).

Total effective sentences ranged from 1 year and 1 month to 35 years, and non-parole periods ranged from 1 year to 28 years. The median total effective sentence of imprisonment was 8 years, while the median principal sentence of imprisonment was 7 years. On average, people sentenced for persistent sexual abuse of a child under 16 were found guilty of 5.0 offences each, with a maximum of 59 offences.

Of the 7 principal offences of persistent sexual abuse of a child under 16 subject to a standard sentence in this period, all received a sentence of imprisonment. The average imprisonment length for those 7 principal offences was 7 years and 2 months, which is higher than the overall average of 7 years for all 44 principal offences that received imprisonment during this period.

Further data on this offence is available on SACStat.

Endnotes

1. This Sentencing Snapshot is an update of Sentencing Snapshot no. 257, which describes sentencing trends for persistent sexual abuse of a child under 16 between 2015-16 and 2019-20.

2. Data on first-instance sentencing 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) but 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 reference period.

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

5. Crimes Act 1958 (Vic) s 49J(2A); Sentencing Act 1991 (Vic) ss 5(2)(ab), 5A-5B.

6. 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.

7. Immediate custodial sentences are mostly imprisonment, but they 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. 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.

9. A court may impose an aggregate sentence of imprisonment upon multiple charges sentenced at the same time. These sentences are a single imprisonment term, but the sentences imposed on individual charges are not specified. A case may include a combination of aggregate and non-aggregate sentences.

10. 2 of the longest imprisonment sentences for the principal offence of persistent sexual abuse of a child under 16 were imposed in DPP v Henderson (a pseudonym) [2021] VCC 17 (12 years) and DPP v Murphy (a pseudonym) [2021] VCC 1525 (11 years).

11. Sentencing Act 1991 (Vic) s 5B(2)(b).

12. R v Kunsevitsky [2020] VSC 41. The next longest total effective sentence was imposed in DPP v Henderson (a pseudonym) [2021] VCC 17 (28 years).

13. A non-parole period was not set for 1 person who was eligible for a non-parole period.