272.10 Aggravated offence—child with mental impairment or under care, supervision or authority of defendant

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

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

(i) subsection 272.8(1) (engaging in sexual intercourse with child outside Australia);

(ii) subsection 272.8(2) (causing child to engage in sexual intercourse in presence of defendant outside Australia);

(iii) subsection 272.9(1) (engaging in sexual activity (other than sexual intercourse) with child outside Australia);

(iv) subsection 272.9(2) (causing child to engage in sexual activity (other than sexual intercourse) in presence of defendant outside Australia); and

(b) either or both of the following apply at the time the person commits the underlying 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) There is no fault element for the physical element described in paragraph (1)(a) other than the fault elements (however described), if any, for the underlying offence.

(3) To avoid doubt, a person does not commit the underlying offence for the purposes of paragraph (1)(a) if the person has a defence to the underlying offence.

(4) Absolute liability applies to subparagraph (1)(b)(i).

Note: For absolute liability, see section 6.2.

(5) Strict liability applies to subparagraph (1)(b)(ii).

Note: For strict liability, see section 6.1.

Defence—belief that child did not have mental impairment

(6) Subparagraph (1)(b)(i) does not apply if the defendant proves that, at the time he or she committed the underlying offence, he or she believed that the child did not have a mental impairment.

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

(7) In determining whether the defendant had the belief mentioned in subsection (6), the trier of fact may take into account whether the alleged belief was reasonable in the circumstances.