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July 2015 Sentencing for Child Sexual Abuse in Institutional Contexts

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July 2015 Sentencing for Child Sexual Abuse in Institutional Contexts Report for the Royal Commission into Institutional Responses to Child Sexual Abuse JULY 2015 SENTENCING FOR CHILD SEXUAL ABUSE IN INSTITUTIONAL CONTEXTS ARIE FREIBERG FACULTY OF LAW, MONASH UNIVERSITY HUGH DONNELLY JUDICIAL COMMISSION OF NEW SOUTH WALES KAREN GELB CONSULTANT CRIMINOLOGIST Sentencing for Child Sexual Abuse in Institutional Contexts Arie Freiberg Emeritus Professor, Faculty of Law, Monash University Hugh Donnelly Director, Research and Sentencing, Judicial Commission of New South Wales Karen Gelb Consultant Criminologist July 2015 The Royal Commission into Institutional Responses to Child Sexual Abuse commissioned and funded this research project. The following researchers carried it out: Arie Freiberg, LLD Hugh Donnelly, LLM Karen Gelb, PhD Disclaimer The views and findings expressed in this report are those of the author(s) and do not necessarily reflect those of the Royal Commission, or of the Judicial Commission of NSW. This report reflects the law as at 1 May 2015. Copyright information Freiberg, A, Donnelly, H and Gelb, K, 2015, Sentencing for Child Sexual Assault in Institutional Contexts, Royal Commission into Institutional Responses to Child Sexual Abuse, Sydney. ISBN: 978-1-925289-20-6 © Commonwealth of Australia 2015 All material in this report is provided under a Creative Commons Attribution 4.0 Australia licence. Please see www.creativecommons.org/licenses for conditions and the full legal code relating to this licence. Published date July 2015 Preface On Friday, 11 January 2013, the Governor-General appointed a six-member Royal Commission to inquire into how institutions with a responsibility for children have managed and responded to allegations and instances of child sexual abuse. The Royal Commission is tasked with investigating where systems have failed to protect children, and making recommendations on how to improve laws, policies and practices to prevent and better respond to child sexual abuse in institutions. The Royal Commission has developed a comprehensive research program to support its work and to inform its findings and recommendations. The program focuses on eight themes: 1. Why does child sexual abuse occur in institutions? 2. How can child sexual abuse in institutions be prevented? 3. How can child sexual abuse be better identified? 4. How should institutions respond when child sexual abuse has occurred? 5. How should government and statutory authorities respond? 6. What are the treatment and support needs of victims/survivors and their families? 7. What is the history of particular institutions of interest? 8. How do we ensure the Royal Commission has a positive impact? This research report falls within theme five. The research program means the Royal Commission can: obtain relevant background information fill key evidence gaps explore what is known and what works develop recommendations that are informed by evidence, can be implemented and respond to contemporary issues. For more on this program visit: www.childabuseroyalcommission.gov.au/research Executive Summary............................................................................................... 1 Introduction ...................................................................................................... 1 The scope of this report ................................................................................. 1 Sentencing and the Criminal Justice System ....................................................... 1 Sentencing and attrition rates........................................................................ 1 Purposes of Sentencing ..................................................................................... 2 Sentencing Factors ............................................................................................ 2 Sentencing Standards ........................................................................................ 4 The Institutional CSA Sentencing Study .......................................................... 4 Perceptions of Child Sexual Abuse Offences, Sentencing and Sanctions.............. 5 Ancillary Orders and Special Provisions for Sex Offenders .................................. 6 Institutional Offending: The Limits of the Law.................................................... 7 Chapter 1 .............................................................................................................. 9 Sentencing: Background and Context .................................................................... 9 Introduction ...................................................................................................... 9 The scope of this report ............................................................................... 10 Definitions................................................................................................... 12 Child sexual abuse in institutions ................................................................. 13 Sentencing individualism ............................................................................. 14 Dangerousness, Sex Offenders and Sentencing ................................................ 15 Sentencing and the Criminal Justice System ..................................................... 18 Sentencing and attrition rates...................................................................... 18 Prosecution and victims ............................................................................... 19 Sentencing and prosecution ......................................................................... 20 Charge negotiations generally ..................................................................... 21 Delay in charging and stay of proceedings .................................................... 22 Overcharging and severance ........................................................................ 24 Representative charges ............................................................................... 25 Rolled-up charges ........................................................................................ 28 Taking admitted offences into account ........................................................ 30 Chapter 2 ............................................................................................................ 36 Principles and Purposes of Sentencing ................................................................. 36 Purposes of Sentencing ................................................................................... 36 Just deserts/proportionality ........................................................................ 37 Victoria ............................................................................................................. 38 South Australia ................................................................................................. 38 Denunciation ............................................................................................... 39 Deterrence .................................................................................................. 42 Community protection ................................................................................ 45 Victoria ............................................................................................................. 46 South Australia ................................................................................................. 46 Tasmania .......................................................................................................... 47 Queensland ...................................................................................................... 47 Northern Territory ........................................................................................... 48 Western Australia ............................................................................................ 48 Rehabilitation .............................................................................................. 48 Victims, restoration and reparation ............................................................. 50 Effectiveness ................................................................................................... 50 Chapter 3 ............................................................................................................ 52 Sentencing Factors .............................................................................................. 52 Introduction .................................................................................................... 52 The Nature of the Crime .................................................................................. 52 Maximum penalty ....................................................................................... 52 Culpability and degree of responsibility ....................................................... 58 Effect of mental disorder ............................................................................. 58 Prior sexual abuse ....................................................................................... 60 Vow of celibacy ........................................................................................... 60 Method of commission: grooming ............................................................... 61 Commonwealth ................................................................................................ 61 Victoria ............................................................................................................
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