Sentencing Snapshot no. 283 describes sentencing outcomes for the offence of sexual penetration of a child aged under 12 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 child sexual penetration offences from the Judicial College of Victoria’s Sentencing Manual Case Summaries.
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, 2023
Snapshot 283: 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 aged under 12[2] in the County and Supreme Courts of Victoria (the higher courts) from 2017-18 to 2021-22.[3] 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 sexual penetration of a child aged under 12 and other offences is available on SACStat.
A person who takes part in an act of sexual penetration of a child aged under 12 is guilty of an indictable offence that carries a maximum penalty of 25 years' imprisonment.[4]
Sexual penetration of a child aged under 12 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.[5] Sexual penetration of a child aged under 12 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.[6]
This Snapshot focuses on cases where sexual penetration of a child aged under 12 was the principal offence, that is, cases where sexual penetration of a child aged under 12 was the offence that received the most severe sentence.[7]
Sexual penetration of a child aged under 12 was the principal offence in 0.9% 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:
- 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
- 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, 75 people were sentenced in the higher courts for a principal offence of sexual penetration of a child aged under 12.
Figure 1 shows the number of people sentenced for the principal offence of sexual penetration of a child aged under 12 by financial year. There were 23 people sentenced for this offence in 2021-22, up from 8 in the previous year. The number of people sentenced was highest in 2021-22 (23 people) and lowest in 2020-21 (8 people). There were 11 people whose offending attracted standard sentence offence classification.
Figure 1: The number of people sentenced for sexual penetration of a child aged under 12, by financial year
| Financial year | Number | Standard sentence number |
|---|---|---|
| 2017-18 | 16 | 0 |
| 2018-19 | 11 | 0 |
| 2019-20 | 17 | 4 |
| 2020-21 | 8 | 3 |
| 2021-22 | 23 | 4 |
| Total | 75 | 11 |
Sentence types and trends
Figure 2 shows the proportion of people who received an immediate custodial sentence and non-custodial sentence for the principal offence of sexual penetration of a child aged under 12.
An immediate custodial sentence involves at least some element of immediate imprisonment or detention.[8] The rate of immediate custodial sentences was lowest in 2017-18 (81.3%) and highest in 2021-22 (91.3%). Over the five-year period, 86.7% 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 sexual penetration of a child aged under 12, by financial year
| Financial year | Custodial sentence | Non-custodial sentence |
|---|---|---|
| 2017-18 | 81.3% | 18.8% |
| 2018-19 | 81.8% | 18.2% |
| 2019-20 | 88.2% | 11.8% |
| 2020-21 | 87.5% | 12.5% |
| 2021-22 | 91.3% | 8.7% |
Table 1 shows the principal sentence types imposed for sexual penetration of a child aged under 12 from 2017-18 to 2021-22. The principal sentence is the most serious sentence imposed for the charge that is the principal offence.[9]
Over the five-year period, most people sentenced for sexual penetration of a child aged under 12 received a principal sentence of imprisonment (81.3% or 61 of 75 people). Another 3 people received a community correction order (4.0%), 2 received an adjourned undertaking (2.6%)[10] and 1 received a youth justice centre order (1.3%). The rate of imprisonment was highest in 2019-20 (87.5%) and lowest in 2018-19 (72.7%). There was a higher rate of imprisonment for those offences that attracted standard sentence offence classification (90.9%). Other sentences were 3 partially suspended sentences and 5 wholly suspended sentences.
Table 1: The number and percentage of people sentenced for sexual penetration of a child aged under 12, by most serious principal sentence type, standard sentence classification and financial year
| Sentence type | 2017-18 | 2018-19 | 2019-20 | 2020-21 | 2021-22 | Total |
|---|---|---|---|---|---|---|
| Non-standard sentence | ||||||
| Imprisonment | 13 (81.3%) | 8 (72.7%) | 10 (58.8%) | 4 (50.0%) | 16 (69.6%) | 51 (68.0%) |
| Community correction order | 1 (6.3%) | 1 (9.1%) | 1 (5.9%) | 1 (12.5%) | 0 (0.0%) | 3 (4.0%) |
| Youth justice centre order | 0 (0.0%) | 1 (9.1%) | 0 (0.0%) | 0 (0.0%) | 0 (0.0%) | 1 (1.3%) |
| Adjourned undertaking | 1 (6.3%) | 0 (0.0%) | 0 (0.0%) | 0 (0.0%) | 0 (0.0%) | 1 (1.3%) |
| Other | 2 (12.5%) | 1 (9.1%) | 2 (11.8%) | 0 (0.0%) | 3 (13.0%) | 8 (10.7%) |
| Standard sentence | ||||||
| Imprisonment | 0 (0.0%) | 0 (0.0%) | 4 (23.5%) | 3 (37.5%) | 3 (13.0%) | 10 (13.3%) |
| Adjourned undertaking | 0 (0.0%) | 0 (0.0%) | 0 (0.0%) | 0 (0.0%) | 1 (4.3%) | 1 (1.3%) |
| Total people sentenced | 16 | 11 | 17 | 8 | 23 | 75 |
Principal and total effective sentences of imprisonment
The following sections analyse the use of imprisonment for the offence of sexual penetration of a child aged under 12 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 61 principal sentences of imprisonment for sexual penetration of a child aged under 12 were non-aggregate imprisonment terms, that is, the imprisonment terms were not part of an aggregate sentence.[11] This included 2 people who received a community correction order in addition to their term of imprisonment.
Figure 3 shows the imprisonment lengths for the principal offence of sexual penetration of a child aged under 12 for those 61 principal sentences. Imprisonment lengths ranged from 5 months to 12 years,[12] while the median imprisonment length was 5 years.
The most common ranges of imprisonment lengths were 5 to less than 6 years and 6 to less than 7 years (13 principal sentences each).
Figure 3: The number of principal sentences of imprisonment for sexual penetration of a child aged under 12, by range of imprisonment lengths, 2017-18 to 2021-22
| Imprisonment length | Number | Standard sentence number |
|---|---|---|
| Less than 1 year | 2 | 0 |
| 1 to less than 2 years | 0 | 0 |
| 2 to less than 3 years | 2 | 0 |
| 3 to less than 4 years | 7 | 0 |
| 4 to less than 5 years | 11 | 0 |
| 5 to less than 6 years | 13 | 1 |
| 6 to less than 7 years | 13 | 3 |
| 7 to less than 8 years | 6 | 2 |
| 8 to less than 9 years | 5 | 2 |
| 9 to less than 10 years | 1 | 1 |
| 10 to less than 11 years | 0 | 0 |
| 11 to less than 12 years | 0 | 0 |
| 12 to less than 13 years | 1 | 1 |
| Total | 61 | 10 |
Figure 4 shows the average imprisonment lengths for the principal offence of sexual penetration of a child aged under 12. The average imprisonment length ranged from 4 years and 4 months in 2017-18 to 5 years and 10 months in 2021-22. Over the five-year period, the average imprisonment length for all 61 principal offences of sexual penetration of a child aged under 12 was 5 years and 3 months. For the 10 charges subject to the standard sentence, the average imprisonment length was 7 years and 7 months.
The imprisonment lengths for sexual penetration of a child aged under 12 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'.[13] 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 sexual penetration of a child aged under 12, by financial year
| Financial year | Number | Standard sentence number | Average | Standard sentence average |
|---|---|---|---|---|
| 2017-18 | 13 | 0 | 4 years and 4 months | 0 |
| 2018-19 | 8 | 0 | 5 years and 0 months | 0 |
| 2019-20 | 14 | 4 | 5 years and 7 months | 6 years and 11 months |
| 2020-21 | 7 | 3 | 5 years and 0 months | 6 years and 3 months |
| 2021-22 | 19 | 3 | 5 years and 10 months | 9 years and 7 months |
| Total | 61 | 10 |
Total effective sentences of imprisonment
Figure 5 shows the lengths of total effective sentences of imprisonment for sexual penetration of a child aged under 12. Total effective sentences ranged from 8 months to 17 years and 9 months,[14] while the median total effective sentence was 8 years.
The most common range of total effective sentences was 6 to less than 7 years (9 people).
Figure 5: The number of people sentenced to imprisonment for sexual penetration of a child aged under 12, by length of total effective sentence, 2017-18 to 2021-22
| Total effective imprisonment length | Number | Standard sentence number |
|---|---|---|
| Less than 1 year | 2 | 0 |
| 1 to less than 2 years | 0 | 0 |
| 2 to less than 3 years | 0 | 0 |
| 3 to less than 4 years | 2 | 0 |
| 4 to less than 5 years | 7 | 0 |
| 5 to less than 6 years | 3 | 0 |
| 6 to less than 7 years | 9 | 0 |
| 7 to less than 8 years | 7 | 1 |
| 8 to less than 9 years | 5 | 1 |
| 9 to less than 10 years | 4 | 2 |
| 10 to less than 11 years | 6 | 2 |
| 11 to less than 12 years | 5 | 1 |
| 12 to less than 13 years | 6 | 1 |
| 13 to less than 14 years | 2 | 1 |
| 14 to less than 15 years | 1 | 0 |
| 15 to less than 16 years | 0 | 0 |
| 16 to less than 17 years | 1 | 1 |
| 17 to less than 18 years | 1 | 0 |
| Total | 61 | 10 |
Non-parole periods
If a person is sentenced to an imprisonment term of less than 1 year, the court cannot impose a non-parole period. For imprisonment terms between 1 year and less than 2 years, the court has the discretion to fix a non-parole period. 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.
Of the 61 people who were sentenced to imprisonment for sexual penetration of a child aged under 12, 59 were eligible to have a non-parole period fixed and all 59 received one.[15] Figure 6 shows the lengths of non-parole periods for those 59 people. Note that it was not possible to determine the length of the non-parole period for 1 person.[16] Non-parole periods ranged from 2 years to 13 years, while the median non-parole period was 5 years and 6 months.
The most common ranges of non-parole periods were 4 to less than 5 years and 5 to less than 6 years (9 people each).
Figure 6: The number of people sentenced to imprisonment for the principal offence of sexual penetration of a child aged under 12, by length of non-parole period, 2017-18 to 2021-22
| Non-parole period | Number | Standard sentence number |
|---|---|---|
| 2 to less than 3 years | 8 | 0 |
| 3 to less than 4 years | 5 | 0 |
| 4 to less than 5 years | 9 | 1 |
| 5 to less than 6 years | 9 | 2 |
| 6 to less than 7 years | 7 | 2 |
| 7 to less than 8 years | 7 | 2 |
| 8 to less than 9 years | 8 | 1 |
| 9 to less than 10 years | 2 | 1 |
| 10 to less than 11 years | 2 | 1 |
| 11 to less than 12 years | 0 | 0 |
| 12 to less than 13 years | 0 | 0 |
| 13 to less than 14 years | 1 | 0 |
| Undetermined | 1 | 0 |
| No non-parole period | 2 | 0 |
| Total | 61 | 10 |
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 58 people who were sentenced to imprisonment for sexual penetration of a child aged under 12 and received a non-parole period that could be determined.
From 2017-18 to 2021-22, the average total effective sentence ranged from 6 years and 11 months in 2017-18 to 9 years and 7 months in 2021-22. Over the same period, the average non-parole period ranged from 4 years and 10 months in 2017-18 to 6 years and 3 months in 2020-21 and 2021-22.
Figure 7: The average total effective sentence and non-parole period for people sentenced to imprisonment with a non-parole period for sexual penetration of a child aged under 12 by financial year
| Financial year | Number | Average total effective sentence length | Average non-parole period |
|---|---|---|---|
| 2017-18 | 11 | 6 years and 11 months | 4 years and 10 months |
| 2018-19 | 8 | 8 years and 8 months | 5 years and 10 months |
| 2019-20 | 14 | 8 years and 3 months | 5 years and 5 months |
| 2020-21 | 6 | 9 years and 3 months | 6 years and 3 months |
| 2021-22 | 19 | 9 years and 7 months | 6 years and 3 months |
Figure 8 represents the average total effective sentence and average non-parole period for the 10 people who were sentenced to imprisonment and received a non-parole period for sexual penetration of a child aged under 12 as a standard sentence offence. The average total effective sentence ranged from 9 years and 2 months in 2019-20 to 14 years and 2 months in 2021-22. The average non-parole period ranged from 6 years in 2019-20 to 8 years and 10 months in 2021-22.
Figure 8: The average total effective sentence and non-parole period for people sentenced to imprisonment for sexual penetration of a child aged under 12 as a standard sentence offence, 2017-18 to 2021-22
| Financial year | Number | Average total effective sentence length | Average non-parole period |
|---|---|---|---|
| 2019-20 | 4 | 9 years and 2 months | 6 years and 0 months |
| 2020-21 | 3 | 9 years and 9 months | 6 years and 5 months |
| 2021-22 | 3 | 14 years and 2 months | 8 years and 10 months |
Other offences finalised at the same hearing
Sometimes people prosecuted for sexual penetration of a child aged 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 aged under 12.
Figure 9 shows the number of people sentenced for the principal offence of sexual penetration of a child aged under 12 by the total number of sentenced offences per person. The number of sentenced offences per person ranged from 1 to 23, and the median was 5 offences. There were 13 people (17.3%) sentenced for the single offence of sexual penetration of a child aged under 12. The average number of offences per person was 6.3.
Figure 9: The number of people sentenced for the principal offence of sexual penetration of a child aged under 12, by the number of sentenced offences per person, 2017-18 to 2021-22
| Number of offences | Number of people |
|---|---|
| 1 | 13 |
| 2 | 5 |
| 3 | 3 |
| 4 | 16 |
| 5-9 | 23 |
| 10-19 | 12 |
| 20-23 | 3 |
| Total | 75 |
Table 2 shows the 10 most common offences co-sentenced alongside sexual penetration of a child aged under 12. The last column sets out the average number of offences sentenced per person. For example, 12 of the total 75 people (16.0%) also received sentences for sexual penetration of a child aged 12 to under 16. On average, those 12 people were sentenced for 2.8 charges of sexual penetration of a child aged 12 to under 16 per case.
Table 2: The number and percentage of people sentenced for the principal offence of sexual penetration of a child aged under 12, by the most common offences that were sentenced alongside sexual penetration of a child aged under 12, 2017-18 to 2021-22
| Offence | Number of cases | Percentage of cases | Average number of proven offences per case |
|---|---|---|---|
| 1. Sexual penetration of a child aged under 12 | 75 | 100.0% | 1.9 |
| 2. Indecent act with or in the presence of a child under 16 | 50 | 66.7% | 3.1 |
| 3. Sexual penetration of a child aged 12 to under 16 | 12 | 16.0% | 2.8 |
| 4. Knowingly possess child abuse material | 11 | 14.7% | 1.2 |
| 5. Sexual assault of a child aged under 16 | 9 | 12.0% | 3.2 |
| 6. Make or produce child pornography | 7 | 9.3% | 2.0 |
| 7. Produce child abuse material | 6 | 8.0% | 3.0 |
| 8. Attempt sexual penetration of a child aged under 16 | 5 | 6.7% | 1.0 |
| 9. Distribute child abuse material | 3 | 4.0% | 1.0 |
| 10. Groom a child aged under 16 for a sexual offence | 3 | 4.0% | 1.0 |
| Total | 75 | 100.0% | 6.3 |
Summary
From 2017-18 to 2021-22, 75 people were sentenced in the higher courts for the principal offence of sexual penetration of a child aged under 12. Of those 75 people, 61 (81.3%) received a principal sentence of imprisonment.
Total effective sentences ranged from 8 months to 17 years and 9 months, and non-parole periods ranged from 2 years to 13 years. The median total effective sentence was 8 years, while the median non-parole period was 5 years and 6 months. On average, people sentenced for the principal offence of sexual penetration of a child aged under 12 were found guilty of 6.3 offences each, with a maximum of 23 offences.
Of the 11 principal offences of sexual penetration of a child aged under 12 subject to the standard sentence in this period, 10 received an imprisonment term (90.9%) and 1 received an adjourned undertaking (9.1%). The average imprisonment length for those 10 principal offences was 7 years and 7 months, the average total effective sentence was 10 years and 11 months, and the average non-parole period was 7 years.
Further data on this offence is available on SACStat.
Endnotes
1. This Sentencing Snapshot is an update of Sentencing Snapshot no. 260, which describes sentencing trends for sexual penetration of a child aged under 12 between 2015-16 and 2019-20.
2. The offence of sexual penetration of a child aged under 12 has changed 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 2017-18 to 2021-22.
3. 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.
The data does not always specify whether the child was aged under 12 or aged 12 to under 16. In order to determine the specific offence in those cases, the Council reviews sentencing remarks. At the time of publication, sentencing remarks for 12 of 362 cases (3.3% of cases) were unavailable or provided insufficient detail to identify the age of the victim. These cases have been excluded from both this Sentencing Snapshot and Sentencing Snapshot no. 282, which describes sentencing trends for sexual penetration of a child aged 12 to under 16.
4. Crimes Act 1958 (Vic) s 49A(2).
5. Sentencing Act 1991 (Vic) ss 3(f) (definition of category 1 offence), 5(2G).
6. Crimes Act 1958 (Vic) s 49A(3); 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. 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.
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. Sentencing remarks are publicly available in one of those cases: DPP v Harrison [2018] VCC 759.
11. 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, but the sentences imposed on individual charges are not specified. A case may include a combination of aggregate and non-aggregate sentences.
12. DPP v Case (a pseudonym) [2021] VCC 1488.
13. Sentencing Act 1991 (Vic) s 5B(2)(b).
14. DPP v Riley (a pseudonym) & Anor [2018] VCC 296 (17 years and 9 months). The next longest total effective sentences were imposed in DPP v Roe (a pseudonym) [2022] VCC 533 (16 years and 8 months) and DPP v Franz (a pseudonym) [2022] VCC 532 (14 years).
15. 2 people were not eligible to have a non-parole period fixed because they were given a total effective sentence of less than 1 year.
16. 1 person was given a non-parole period that related to more than 1 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.
