Child Sexual offences Lawyers

Sexual intercourse with a child

In New South Wales, child sexual offenses are taken very seriously, and the penalties for these offenses can be severe. The specific penalties will depend on the nature and severity of the offense, as well as the offender's criminal history and other relevant factors.

The law states that a child is incapable of giving informed consent to any sexual activity. The age of sexual consent is 16 years old, which provides that anyone aged 16 years or older can legally consent to sexual intercourse with another person also aged 16 years or older.

The Crimes Act 1900 (NSW) sets out a range of offenses related to child sexual abuse, mainly dealt with under sections 66A, 66B, 66C and 66D including:

• Sexual assault of a child under 16Indecent assault of a child under 16

• Sexual intercourse with a child under 10

• Sexual assault of a child under 16Indecent assault of a child under 16

• Aggravated sexual assault of a child under 16

What the proscution needs to prove

Generally, the prosecution are required to prove, beyond reasonable doubt, that:

• You had sexual intercourse (i.e., sexual penetration of a person’s genitalia or anus, or oral sex), 

• The complainant was under 16 (or a younger age specified in the charge).

Penalties

The penalties for these offenses can include lengthy terms of imprisonment, ranging from several years to life imprisonment, depending on the offence. In addition to imprisonment, offenders may also be subject to fines, community service, and other penalties.

The applicable maximum penalties are for sexual assault against a child are:

• Child under the age of 10 = life imprisonment,

• Child between the age of 10 and under 14 years (in circumstances of aggravation) = 20 years imprisonment, 

• Child between the age of 10 and under 14 years = 16 years imprisonment,

• Child between the age of 14 and under 16 years (in circumstances of aggravation) = 12 years imprisonment,

• Child between the age of 14 and under 16 years = 10 years imprisonment. 

Circumstances of aggravation refer to circumstances in which, the accused person:

• at the time of, or immediately before or after, the commission of the offence, intentionally or recklessly inflicts actual bodily harm on the complainant or any other person who is present or nearby (including by using an offensive weapon or instrument),

• is in the company of another person or persons,

• took advantage of the complainant being under the influence of alcohol or a drug in order to commit the offence,

• deprives the complainant of their liberty for a period before or after the commission of the offence, or 

• breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence.

It also includes where the complainant:

• is (whether generally or at the time of the commission of the offence) under the authority of the accused person, 

• has a serious physical disability, or

• has a cognitive impairment. 

Defences for Child sexual offences

• False allegation

• Mistaken belief of age (honest and reasonable mistake of fact) 

• Similar age difference 

• Mistaken identity

• No evidence of sexual intercourse performed 

• Mental illness

Sexual touching of a child

This is dealt with under sections 66DA and 66DB of the Crimes Act 1900 (NSW). A person may be charged with an offence of sexual touching, where the actions do not amount to sexual intercourse, but still are a form of sexual touching. 

What the prosecution needs to prove

The prosecution are required to prove, beyond reasonable doubt, that:

• You intentionally touched the child, incited the child to touch you, or incited someone else to touch the child, and 

• The touch was ‘sexual’ (a reasonable person would consider it was “sexual” taking into account the area touched, body part used and whether it was for the purposes of sexual gratification or arousal). 

Penalties for sexual touching of a child

The maximum penalty of sexually touching a child under 10 is 16 years imprisonment, whereas the maximum penalty of sexually touching a child between 10 and 16 is 10 years imprisonment. 

However, both are ‘table 1’ offences, which means that they will be dealt with in the Local Court unless the prosecution or defence elects for the matter to proceed to the District Court.In the Local Court, the maximum penalty is limited to 2 years imprisonment and/or a $11,000 fine for a single offence.