Despite successfully recommending major changes to the law, the Victorian Sentencing Advisory Council still believes sentences for the s-xual penetration of children under 16 are inadequate.

In its 2009-10 annual report, the council has revealed its role in recommending legislative changes so that children aged between 10 and 12 are treated the same as those under 10.

Under those changes, which came into effect in March, offenders who s-xually penetrate an 11-year-old face a maximum penalty of 25 years in prison, instead of the 10-year penalty under old legislation.

However, the report also suggests that the sentences that are actually being handed down by Victoria’s courts are so lenient that increasing statutory maximums is not a complete solution.

A study conducted by the council found the average term of imprisonment in recent years for an individual charge of s-xual penetration of a child under 10 was just 3.3 years and the maximum for a single charge was 6.7 years.

The report says these figures “would suggest that increases in the maximum penalty for the other forms of this offence would not necessarily lead to more appropriate sentences”.

The Sentencing Advisory Council is an independent statutory authority that advises the Victorian Court of Appeal on sentencing matters. It has suggested the court is the best body to bring about change.

“The council was of the view that consideration of current sentencing practices in an appropriate appeal case may be a more effective way to address the disparity between sentencing practices and the maximum penalty itself.”

The disparity between the maximum penalty and the average sentence is most stark in cases involving children under 10 — or now under 12 — years of age. This is described as the “no defence” age. However, in other categories there are also big gaps.

In cases involving children between 10 and 16, where the child was under the care, supervision or authority of the offender, a maximum penalty of 15 years applied. But the average sentence between 2006-08 was just 3.6 years and the longest sentence just eight years.

In cases involving children aged between 10 and 16, where the offender was not in a role of responsibility, a maximum penalty of 10 years applied. But the average sentence was just 2.3 years and the longest just five years.

The council has opted to keep these 10- and 15-year penalties for the new age groups of 12-16-year-olds, and has decided against legislation, despite acknowledging that longer maximum sentences would likely be an indication to judges that the sentences being given were not long enough.

“Although recognising that an increase in a statutory maximum penalty is generally considered to be an indication by Parliament that longer sentences should be imposed, the council does not believe that increasing the statutory maximum penalties would have a significant effect on current sentencing practices for the offence of s-xual penetration with a child under 16,” it said.

The council consulted with stakeholders including victims and families of victims, offenders, legal practitioners, psychologists, workers from Centres Against S-xual Assault, the Victorian Association for the Care and Resettlement of Offenders, County Court judges, the Child Witness Service and the Witness Assistance Service at the Office of Public Prosecutions and members of Victoria Police.

The council’s study, Maximum Penalties for S-xual Penetration with a Child under 16, stated that the call for harsher maximum penalties was almost unanimous.

“… an overwhelming majority thought that sentences imposed for offences involving the s-xual penetration of children were low, or even inadequate, in relation to the existing maximum penalties,” it said.

Peter Fray

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