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The justice system often exacts a heavy toll on victim-survivors of sexual offences. Historically low conviction rates for rape and the likelihood of a long and re-traumatising court process deter some complainants from ever coming forward.
Even if they decide to report their attacker and prosecutors secure a conviction in court, there is no guarantee that victims will regard the sentence handed down by the court as reflective of the gravity of the crime.
Sentencing statistics obtained exclusively by this masthead’s court reporter Clare Sibthorpe from the Bureau of Crime Statistics and Research paint a worrying picture in this respect.
They show community correction orders (CCOs) – effectively good behaviour bonds – made up nearly 4 per cent, or 19, of NSW sentences where the principal offence was unlawful sexual penetration of an adult. The figures cover a four-year period to March 2026.
The use of CCOs for some convicted rapists appears to be an unintended consequence of sentencing reforms by the former NSW Liberal government, which took effect in 2018 and were billed by the then Attorney-General Mark Speakman as “tough and smart”.
Those reforms took a sentencing option known as an intensive correction order (ICO) off the table for offenders sentenced to imprisonment for serious crimes including sexual assault.
The changes were designed to ensure those offenders went to prison rather than serving a sentence in the community.
An ICO, imposed for up to two years, is tougher than a CCO. It is categorised as a custodial sentence, even though it is served in the community. It involves strict supervision and potentially home detention.
Speakman said when introducing the reforms that the government “considers that an offence that is serious enough to warrant a prison sentence of more than two years should be served in full‑time custody”, rather than by way of an ICO.
But, in a shock to many complainants, it now appears that judges in some cases are opting for a much more lenient CCO for some convicted rapists. The legislation does not rule it out.
David Heilpern, Southern Cross University dean of Law and former magistrate of 22 years, told Sibthorpe that it was “outrageous” for a convicted rapist to avoid jail.
Heilpern said parliament could not have imagined its “zero tolerance” decision to remove ICOs for serious crimes, including sexual assault, would mean some judges resorted to the lower CCOs instead of imprisonment.
“A CCO is what you get for a second shoplift or pushing and shoving in a pub,” he said.
Sexual intercourse without consent carries a maximum prison term of 14 years with a standard non-parole period of seven years.
It appears contrary to parliament’s will for the courts to decide that an order akin to a good behaviour bond reflects the gravity of that crime in all but rare cases. But the legislature has been unclear, and banning ICOs appears to have distorted sentencing outcomes.
Heilpern’s strongly worded comments are a wake-up call that further, careful reform may be required. The Sun-Herald does not support mandatory sentencing but an urgent review of the provisions by the Minns government is essential.
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