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

29   After section 474.25 of the Criminal Code

Insert:

Subdivision F - Offences relating to use of carriage service involving sexual activity with person under 16

474.25A Using a carriage service for sexual activity with person under 16 years of age

Engaging in sexual activity with child using a carriage service

(1) A person commits an offence if:

(a) the person engages in sexual activity with another person (the child ) using a carriage service; and

(b) the child is under 16 years of age; and

(c) the person is at least 18 years of age.

Penalty: Imprisonment for 15 years.

Causing child to engage in sexual activity with another person

(2) A person (the defendant ) commits an offence if:

(a) the defendant engages in conduct in relation to another person (the child ); and

(b) that conduct causes the child to engage in sexual activity with another person (the participant ) using a carriage service; and

(c) the child is under 16 years of age when the sexual activity is engaged in; and

(d) the participant is at least 18 years of age when the sexual activity is engaged in.

Penalty: Imprisonment for 15 years.

(3) The fault element for paragraph (2)(b) is intention.

Defence - child present but defendant does not intend to derive gratification

(4) It is a defence to a prosecution for an offence against subsection (1) or (2) if:

(a) the conduct constituting the offence consists only of the child being in the presence of a person while sexual activity is engaged in; and

(b) the defendant proves that he or she did not intend to derive gratification from the presence of the child during that activity.

Note 1: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.

Note 2: For other defences relating to this offence, see section 474.29.

474.25B Aggravated offence - child with mental impairment or under care, supervision or authority of defendant

(1) A person commits an offence against this section if:

(a) the person commits an offence against either of the following provisions in relation to another person (the child ):

(i) subsection 474.25A(1) (engaging in sexual activity with child using a carriage service);

(ii) subsection 474.25A(2) (causing child to engage in sexual activity with another person); and

(b) either or both of the following apply at the time the person commits the offence:

(i) the child has a mental impairment;

(ii) the person is in a position of trust or authority in relation to the child, or the child is otherwise under the care, supervision or authority of the person.

Penalty: Imprisonment for 25 years.

(2) To avoid doubt, a person does not commit the offence against subsection 474.25A(1 or (2) for the purposes of paragraph (1)(a) if the person has a defence to that offence.

Alternative verdicts

(3) If, on a trial for an offence (the aggravated offence ) against subsection (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 subsection 474.25A(1) or (2);

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.