Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (42 of 2010)
Schedule 1 Amendments relating to sexual offences against children
Part 2 Amendments relating to child sex offences involving postal or similar services, or carriage services
Criminal Code Act 1995
14 At the end of Division 471 of the Criminal Code
Add:
Subdivision B - Offences relating to use of postal or similar service for child pornography material or child abuse material
471.16 Using a postal or similar service for child pornography material
(1) A person commits an offence if:
(a) the person causes an article to be carried by a postal or similar service; and
(b) the article is, or contains, child pornography material.
Penalty: Imprisonment for 15 years.
(2) A person commits an offence if:
(a) the person requests another person to cause an article to be carried by a postal or similar service; and
(b) the article is, or contains, child pornography material.
Penalty: Imprisonment for 15 years.
471.17 Possessing, controlling, producing, supplying or obtaining child pornography material for use through a postal or similar service
(1) A person commits an offence if:
(a) the person:
(i) has possession or control of material; or
(ii) produces, supplies or obtains material; and
(b) the material is child pornography material; and
(c) the person has that possession or control, or engages in that production, supply or obtaining, with the intention that the material be used:
(i) by that person; or
(ii) by another person;
in committing an offence against section 471.16 (using a postal or similar service for child pornography material).
Penalty: Imprisonment for 15 years.
(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against section 471.16 (using a postal or similar service for child pornography material) is impossible.
(3) It is not an offence to attempt to commit an offence against subsection (1).
471.18 Defences in respect of child pornography material
(1) A person is not criminally responsible for an offence against section 471.16 (using a postal or similar service for child pornography material) or 471.17 (possessing etc. child pornography material for use through a postal or similar service) because of engaging in particular conduct if the conduct:
(a) is of public benefit; and
(b) does not extend beyond what is of public benefit.
In determining whether the person is, under this subsection, not criminally responsible for the offence, the question whether the conduct is of public benefit is a question of fact and the person’s motives in engaging in the conduct are irrelevant.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(2) For the purposes of subsection (1), conduct is of public benefit if, and only if, the conduct is necessary for or of assistance in:
(a) enforcing a law of the Commonwealth, a State or a Territory; or
(b) monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or a Territory; or
(c) the administration of justice; or
(d) conducting scientific, medical or educational research that has been approved by the Minister in writing for the purposes of this section.
(3) A person is not criminally responsible for an offence against section 471.16 (using a postal or similar service for child pornography material) or 471.17 (possessing etc. child pornography material for use through a postal or similar service) if:
(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and
(b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
471.19 Using a postal or similar service for child abuse material
(1) A person commits an offence if:
(a) the person causes an article to be carried by a postal or similar service; and
(b) the article is, or contains, child abuse material.
Penalty: Imprisonment for 15 years.
(2) A person commits an offence if:
(a) the person requests another person to cause an article to be carried by a postal or similar service; and
(b) the article is, or contains, child abuse material.
Penalty: Imprisonment for 15 years.
471.20 Possessing, controlling, producing, supplying or obtaining child abuse material for use through a postal or similar service
(1) A person commits an offence if:
(a) the person:
(i) has possession or control of material; or
(ii) produces, supplies or obtains material; and
(b) the material is child abuse material; and
(c) the person has that possession or control, or engages in that production, supply or obtaining, with the intention that the material be used:
(i) by that person; or
(ii) by another person;
in committing an offence against section 471.19 (using a postal or similar service for child abuse material).
Penalty: Imprisonment for 15 years.
(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against section 471.19 (using a postal or similar service for child abuse material) is impossible.
(3) It is not an offence to attempt to commit an offence against subsection (1).
471.21 Defences in respect of child abuse material
(1) A person is not criminally responsible for an offence against section 471.19 (using a postal or similar service for child abuse material) or 471.20 (possessing etc. child abuse material for use through a postal or similar service) because of engaging in particular conduct if the conduct:
(a) is of public benefit; and
(b) does not extend beyond what is of public benefit.
In determining whether the person is, under this subsection, not criminally responsible for the offence, the question whether the conduct is of public benefit is a question of fact and the person’s motives in engaging in the conduct are irrelevant.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(2) For the purposes of subsection (1), conduct is of public benefit if, and only if, the conduct is necessary for or of assistance in:
(a) enforcing a law of the Commonwealth, a State or a Territory; or
(b) monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or a Territory; or
(c) the administration of justice; or
(d) conducting scientific, medical or educational research that has been approved by the Minister in writing for the purposes of this section.
(3) A person is not criminally responsible for an offence against section 471.19 (using a postal or similar service for child abuse material) or 471.20 (possessing etc. child abuse material for use through a postal or similar service) if:
(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and
(b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
471.22 Aggravated offence - offence involving conduct on 3 or more occasions and 2 or more people
(1) A person commits an offence against this section if:
(a) the person commits an offence against one or more of the following provisions on 3 or more separate occasions:
(i) section 471.16 (using a postal or similar service for child pornography material);
(ii) section 471.17 (possessing etc. child pornography material for use through a postal or similar service);
(iii) section 471.19 (using a postal or similar service for child abuse material);
(iv) section 471.20 (possessing etc. child abuse material for use through a postal or similar service); and
(b) the commission of each such offence involves 2 or more people.
Penalty: Imprisonment for 25 years.
(2) There is no fault element for any of the physical elements described in paragraph (1)(a) other than the fault elements (however described), if any, for the offence against section 471.16, 471.17, 471.19 or 471.20.
(3) To avoid doubt, a person does not commit an offence against section 471.16, 471.17, 471.19 or 471.20 for the purposes of paragraph (1)(a) if the person has a defence to that offence.
Offence or conduct need not be the same
(4) For the purposes of subsection (1), it is immaterial whether the offence, or the conduct constituting the offence, is the same on each occasion.
Double jeopardy etc.
(5) A person who has been convicted or acquitted of an offence (the aggravated offence ) against this section may not be convicted of an offence against section 471.16, 471.17, 471.19 or 471.20 in relation to the conduct that constituted the aggravated offence.
(6) Subsection (5) does not prevent an alternative verdict under section 471.23.
(7) A person who has been convicted or acquitted of an offence (the underlying offence ) against section 471.16, 471.17, 471.19 or 471.20 may not be convicted of an offence against this section in relation to the conduct that constituted the underlying offence.
471.23 Alternative verdict if aggravated offence not proven
If, on a trial for an offence (the aggravated offence ) against subsection 471.22(1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the aggravated offence; but
(b) is satisfied beyond reasonable doubt that he or she is guilty of an offence (the underlying offence ) against section 471.16, 471.17, 471.19 or 471.20;
it may find the defendant not guilty of the aggravated offence but guilty of the underlying offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
Subdivision C - Offences relating to use of postal or similar service involving sexual activity with person under 16
471.24 Using a postal or similar service to procure persons under 16
(1) A person (the sender ) commits an offence if:
(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient ); and
(b) the sender does this with the intention of procuring the recipient to engage in sexual activity with the sender; and
(c) the recipient is someone who is, or who the sender believes to be, under 16; and
(d) the sender is at least 18.
Penalty: Imprisonment for 15 years.
(2) A person (the sender ) commits an offence if:
(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient ); and
(b) the sender does this with the intention of procuring the recipient to engage in sexual activity with another person (the participant ); and
(c) the recipient is someone who is, or who the sender believes to be, under 16; and
(d) the participant is someone who is, or who the sender believes to be, at least 18.
Penalty: Imprisonment for 15 years.
(3) A person (the sender ) commits an offence if:
(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient ); and
(b) the sender does this with the intention of procuring the recipient to engage in sexual activity with another person; and
(c) the recipient is someone who is, or who the sender believes to be, under 16; and
(d) the other person referred to in paragraph (b) is someone who is, or who the sender believes to be, under 18; and
(e) the sender intends that the sexual activity referred to in paragraph (b) will take place in the presence of:
(i) the sender; or
(ii) another person (the participant ) who is, or who the sender believes to be, at least 18.
Penalty: Imprisonment for 15 years.
471.25 Using a postal or similar service to “groom” persons under 16
(1) A person (the sender ) commits an offence if:
(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient ); and
(b) the sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with the sender; and
(c) the recipient is someone who is, or who the sender believes to be, under 16; and
(d) the sender is at least 18.
Penalty: Imprisonment for 12 years.
(2) A person (the sender ) commits an offence if:
(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient ); and
(b) the sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with another person (the participant ); and
(c) the recipient is someone who is, or who the sender believes to be, under 16; and
(d) the participant is someone who is, or who the sender believes to be, at least 18.
Penalty: Imprisonment for 12 years.
(3) A person (the sender ) commits an offence if:
(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient ); and
(b) the sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with another person; and
(c) the recipient is someone who is, or who the sender believes to be, under 16; and
(d) the other person referred to in paragraph (b) is someone who is, or who the sender believes to be, under 18; and
(e) the sender intends that the sexual activity referred to in paragraph (b) will take place in the presence of:
(i) the sender; or
(ii) another person (the participant ) who is, or who the sender believes to be, at least 18.
Penalty: Imprisonment for 15 years.
471.26 Using a postal or similar service to send indecent material to person under 16
(1) A person (the sender ) commits an offence if:
(a) the sender causes an article to be carried by a postal or similar service to another person (the recipient ); and
(b) the article is, or contains, material that is indecent; and
(c) the recipient is someone who is, or who the sender believes to be, under 16; and
(d) the sender is at least 18.
Penalty: Imprisonment for 7 years.
(2) In a prosecution for an offence against subsection (1), whether material is indecent is a matter for the trier of fact.
(3) In this section:
indecent means indecent according to the standards of ordinary people.
471.27 Age-related provisions relating to offences against this Subdivision
Application of absolute liability
(1) For the purposes of an offence against this Subdivision, absolute liability applies to the physical element of circumstance of the offence that the recipient is someone who is under 16.
Note 1: For absolute liability, see section 6.2.
Note 2: For a defence based on belief about age, see section 471.29.
(2) For the purposes of an offence against subsection 471.24(2) or (3) or 471.25(2) or (3), absolute liability applies to the physical element of circumstance of the offence that the participant is at least 18.
Note 1: For absolute liability, see section 6.2.
Note 2: For a defence based on belief about age, see section 471.29.
Proof of belief about age - evidence of representation
(3) For the purposes of this Subdivision, evidence that the recipient was represented to the sender as being under or of a particular age is, in the absence of evidence to the contrary, proof that the sender believed the recipient to be under or of that age.
(4) For the purposes of sections 471.24 and 471.25, evidence that the participant was represented to the sender as being:
(a) at least 18; or
(b) over or of a particular age;
is, in the absence of evidence to the contrary, proof that the sender believed the participant to be at least 18 or over or of that particular age.
Determining age - admissible evidence
(5) In determining for the purposes of this Subdivision how old a person is or was at a particular time, a jury or court may treat any of the following as admissible evidence:
(a) the person’s appearance;
(b) medical or other scientific opinion;
(c) a document that is or appears to be an official or medical record from a country outside Australia;
(d) a document that is or appears to be a copy of such a record.
(6) Subsection (5) does not make any other kind of evidence inadmissible, and does not affect a prosecutor’s duty to do all he or she can to adduce the best possible evidence for determining the question.
(7) If, on a trial for an offence against this Subdivision, evidence may be treated as admissible because of subsection (5), the court must warn the jury that it must be satisfied beyond reasonable doubt in determining the question.
471.28 Other provisions relating to offences against this Subdivision
Impossibility of sexual activity taking place
(1) A person may be found guilty of an offence against section 471.24 or 471.25 even if it is impossible for the sexual activity referred to in that section to take place.
Fictitious recipient
(2) For the purposes of an offence against this Subdivision, it does not matter that the recipient to whom the sender believes the sender is causing an article to be carried is a fictitious person represented to the sender as a real person.
Attempt not offence
(3) It is not an offence to attempt to commit an offence against section 471.24 or 471.25.
471.29 Defences to offences against this Subdivision
Belief that recipient at least 16
(1) It is a defence to a prosecution for an offence against this Subdivision if the defendant proves that, at the time he or she caused the article to be carried, the defendant believed that the recipient was at least 16.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Offences involving procuring or “grooming” child for sexual activity with other participant - belief that participant under 18
(2) It is a defence to a prosecution for an offence against subsection 471.24(2) or (3) or 471.25(2) or (3) if the defendant proves that, at the time he or she caused the article to be carried, the defendant believed that the participant was under 18.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Trier of fact may take into account whether belief reasonable
(3) In determining whether the defendant had the belief mentioned in subsection (1) or (2), the trier of fact may take into account whether the alleged belief was reasonable in the circumstances.
Subdivision D - Miscellaneous
471.30 Geographical jurisdiction
Section 15.1 (extended geographical jurisdiction - category A) applies to an offence against Subdivision B or C of this Division.
471.31 Definition of carry by post does not apply
To avoid doubt, the definition of carry by post in section 470.1 does not apply in relation to Subdivision B or C of this Division.