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Sexual offences against children are widely considered to be amongst the most heinous offences in criminal law. The maximum penalties for sexual offences against children in NSW are significant, carrying lengthy periods of imprisonment, including life sentences as maximum penalties for certain offences. This article examines a number of offences of sexual touching and sexual intercourse with children in NSW, their maximum penalties and potential defences.
Sexual touching of a child under 10 years of age
Under section 66DA of the Crimes Act 1900 (NSW) a person who intentionally:
- sexually touches a child under the age of 10 years of age, or
- incites a child who is under the age of 10 years or age to sexually touch them, or
- incites a child who is under the age of 10 years to sexually touch another person or
- incites another person to sexually touch a child under the age of 10 years of age,
is guilty of an offence. The maximum penalty for a charge of sexually touching a child under the age of 10 years of age is 16 years imprisonment.
Sexual touching of a child between 10 and 16 years of age
Under section 66DB of the Crimes Act 1900 (NSW) a person who intentionally:
- sexually touches a child aged between 10 and 16 years of age, or
- incites a child aged between 10 and 16 years of age to sexually touch them, or
- incites a child aged between 10 and 16 years of age to sexually touch another person or
- incites another person to sexually touch a child aged between 10 and 16 years of age,
is guilty of an offence. The maximum penalty for a charge of sexually touching a child aged between 10 and 16 years of age is 10 years imprisonment.
Sexual intercourse with a child under 10 years of age
Under section 66A of the Crimes Act 1900 (NSW) any person who has sexual intercourse with a child aged under the age of 10 years of age is guilty of an offence. The maximum penalty for an offence of sexual intercourse with a child under the age of 10 years of age is life imprisonment.
Under section 66B of the Crimes Act 1900 (NSW) any person who attempts to have sexual intercourse with a child aged under the age of 10 years of age or assaults a child who is under the age of 10 years of age with intent to have sexual intercourse is guilty of an offence carrying a maximum penalty of 25 years imprisonment.
Sexual intercourse with a child aged between 10 and 16 years of age
The law provides different penalties for offences involving sexual intercourse with children aged between 10 and 16 years of age.
Under section 66C(1) of the Crimes Act 1900 (NSW) a person who has sexual intercourse with a child who is aged between 10 and 14 years of age commits an offence. The maximum penalty for this offence is 16 years imprisonment. Under section 66C(2) of the Act, the aggravated form of an offence of sexual intercourse with a child aged between 10 and 14 years imprisonment carries a maximum sentence of 20 years imprisonment.
Under section 66C(3) a person who has sexual intercourse with a child who is aged between 14 and 16 years of age commits an offence. The maximum penalty for this offence is 10 years imprisonment. Under section 66C(4) of the Act the aggravated form of an offence of sexual intercourse with a child aged between 14 and 16 years imprisonment carries a maximum sentence of 12 years imprisonment.
What constitutes an aggravated form of the sexual offence?
Under section 66C(5) of the Act, an offence of sexual intercourse with a child is committed in circumstances of aggravation if:
(a) at the time of, or immediately before or after, the commission of the offence, the accused intentionally or recklessly inflicted actual bodily harm on the child or any other person who was present or nearby, or
(b) at the time of, or immediately before or after, the commission of the offence, the accused threatened to inflict actual bodily harm on the child or any other person who was present or nearby by means of an offensive weapon or instrument, or
(c) the accused was in the company of another person or persons, or
(d) the child was (whether generally or at the time of the commission of the offence) under the authority of the accused, or
(e) the child has a serious physical disability, or
(f) the child has a cognitive impairment, or
(g) the accused took advantage of the child being under the influence of alcohol or a drug in order to commit the offence, or
(h) the accused deprived the child of his or her liberty for a period before or after the commission of the offence, or
(i) the accused broke and entered into any dwelling-house or other building = with the intention of committing the offence or any other serious indictable offence.
Unlawful sexual relationships with children and persistent sexual abuse of a child
Under section 66EA of the Crimes Act 1900 (NSW) an adult, being a person aged 18 years of age or above who maintains an unlawful sexual relationship with a child aged under the age of 16 years of age is guilty of an offence. An unlawful sexual relationship is defined as a relationship in which an adult engages in 2 or more sexual acts with or towards a child under the age of 16 years of age over any period. The maximum penalty for this offence is life imprisonment.
Sentences for child sex offences
Given the overwhelming seriousness of sexual offences against children, courts have routinely stated that deterrence is of great importance with the law requiring that offenders be severely punished. When sentencing offenders for sexual offences against children, courts recognise the vulnerability of children given their age, the breach of trust which often arises between perpetrators and victims as well the irreparable harm done to victims of child sexual offences. Parliament has imposed significant standard non-parole periods for sexual offences against children. Sentencing offenders for sexual offences against children is not an easy task. The very serious nature of the offence needs to be considered as well as the personal characteristics of an offender.
What are the potential defences available for Sexual Offences Against Children in NSW?
Although defences of consent are available in sexual touching and sexual intercourse matters generally, the defence of consent does not apply to sexual offences against children. In some cases, a defence of honest and reasonable mistake may be raised where an accused is charged with a sexual offence against a child however the accused reasonably believed that the child was above the age of 16 years of age. Such defences are however not straightforward and claims of honest and reasonable mistake need to be carefully examined. Other defences may also be available at law depending on the offence(s) charged and the circumstances of a particular case. It is important to have an experienced criminal defence lawyer conduct a detailed examination of your case to determine the availability of any potential defences to your case.
Practical considerations
Being convicted of an offence involving the sexual abuse of a child is very serious, with the prospect of lengthy sentences of imprisonment being likely on conviction. A conviction for a child sexual assault offence will inevitably result in an offender being placed on a Child Protection Register, requiring an offender to register a wide variety of information to police and being subject to stringent requirements pursuant to their registration. Any breach of an offender’s obligations pursuant to a Child Protection Register is a serious criminal offence.
Charges involving sexual offences against children can be complex given the manner in which evidence involving children is presented in court. There may also be defences available to an accused, depending on the circumstances of a case. It is vital that anyone suspected of a sexual offence against children consult with an experienced criminal defence lawyer as soon as possible.
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The content contained within this guide is expressed as a general guide as to this area of law and is not intended to contain legal advice specific to an individual’s case. If you, or someone you know has been charged with a criminal offence and requires legal advice, do not hesitate to contact Australian Lawyers and Advocates to discuss any criminal law or traffic law matters further.
