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Section 474.25A Criminal Code Act 1995
Use Carriage Service for Sexual Activity Child Under 16

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Child abuse material is defined by the Criminal Code Act 1995 (Cth) as:

Material that depicts a person, or a representation of a person, who is, or appears to be, in a way that reasonable persons would regard as offensive:

  1. Under 18 years of age, and
  2. A victim of torture, cruelty or physical abuse.

Or:

Material that describes a person who is, or is implied to be, in a way that reasonable persons would regard as offensive:

  1. Under 18 years of age, and
  2. A victim of torture, cruelty or physical abuse.

Or:

Material that depicts a person, or a representation of a person who is, or appears to be, in a way that reasonable persons would regard as offensive:

  1. Under 18 years of age, and
  2. Engaged in, or appearing to be engaged in, a sexual pose or sexual activity, whether or not in the presence of other persons, or in the presence of a person engaged in, or appearing to be engaged in, a sexual pose or sexual activity.

Or:

Material whose dominant characteristic is the depiction, for a sexual purpose, in a way that reasonable persons would regard as offensive:

  1. A sexual organ or anal region of a person who is, or appears to be, under 18 years of age, or a representation of such a sexual organ anal region, or
  2. The breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age.

Or:

Material that describes in a way that reasonable persons would regard as offensive.

A person who is, or is implied to be, under 18 years of age and who is:

  1. Engaged in, or implied to be engaged in, a sexual pose or sexual activity, whether or not in the presence of other persons, or
  2. In the presence of a person engaged in, or implied to be engaged in, a sexual pose or sexual activity.

Or:

Material that describes in a way that reasonable persons would regard as offensive.

  1. A sexual organ or anal region of a person who is, or is implied to be, under 18 years of age, or
  2. The breasts of a female person who is, or is implied to be, under 18 years of age.

Or:

Material that is a doll or other object intended to be used to simulate sexual intercourse that resembles:

  1. A person who is, or appears to be, under 18 years of age, or
  2. Part of the body of such a person.

Using a carriage service for sexual activity with a person under the age of 16 years is an offence under section 474.25A(1) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 20 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You were at least 18 years of age
  2. You engaged in sexual activity with another person
  3. You did so by the use of a carriage service, and
  4. The other person was under 16 years of age.

‘Sexual activity’ includes a broad range of conduct of a sexual nature, including sexual intercourse, sexual touching and masturbation.

The offence encompasses the use of a carriage service to see or hear, in real time, a person under 16 years of age engage in sexual activity as well as engaging in sexual activity that was seen or heard, in real time, by a person under 16 years of age.

A ‘carriage service’ is:

‘a service for carrying communications by means of guided and/or unguided electromagnetic energy’, which includes telephone calls, text messages and internet transmissions such as emails and social media messaging when determining a person’s age at a particular time.

The fact-finder (whether judge-alone or jury) may treat as admissible evidence:

  1. The person’s appearance
  2. Any medical or other scientific opinion
  3. Any document that is or appears to be an official or medical record from outside Australia, and
  4. Any document that appears to be a copy of such a record.

In the case of a jury trial, the judge must warn jurors that they must be satisfied of age requirements beyond a reasonable doubt before they can reach a verdict of guilty.

The age requirement of being under 16 may be satisfied where the other person was above that age, but represented himself or herself as below that age.

You are not guilty of the offence if you establish to the court ‘on the balance of probabilities’ that:

  1. You believed the other person was at least 16 years of age, or
  2. The conduct consisted only of the person who was under the age of 16 years being in the presence of another person while sexual activity was engaged in, and you did not intend to service gratification from the child’s presence.

Duress is a defence to the charge.


Using a carriage service to cause a child to engage in sexual activity with another person is an offence under section 474.25A(2) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 20 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You engaged in conduct relating to a person under the age of 16 years (‘the child’)
  2. Your conduct caused the child to engage in sexual activity with a person over the age of 18 years (“the participant”), and
  3. That activity occurred using a carriage service.

‘Sexual activity’ includes a broad range of conduct of a sexual nature including sexual intercourse, sexual touching and masturbation.

The offence encompasses the use of a carriage service to see or hear, in real time, a person under 16 years of age engaging in sexual activity as well as engaging in sexual activity that was seen or heard, in real time, by a person under 16 years of age.

A ‘carriage service’ is:

‘a service for carrying communications by means of guided and/or unguided electromagnetic energy’, which includes telephone calls, text messages and internet transmissions such as emails and social media messaging when determining a person’s age at a particular time.

The fact-finder (whether judge-alone or jury) may treat as admissible evidence:

  1. The person’s appearance
  2. Any medical or other scientific opinion
  3. Any document that is or appears to be an official or medical record from outside Australia, and
  4. Any document that appears to be a copy of such a record.

In the case of a jury trial, the judge must warn jurors that they must be satisfied of age requirements beyond a reasonable doubt before they can reach a verdict of guilty.

The age requirement of being under 16 may be satisfied where the other person was above that age, but represented himself or herself as below that age.

You are not guilty of the offence if you establish to the court ‘on the balance of probabilities’ that:

  1. You believed the other person was at least 16 years of age, or
  2. You believed the participant was at least 18 years of age, or
  3. The conduct consisted only of the person who was under the age of 16 years, being in the presence of another person while sexual activity was engaged in, and you did not intend to derive gratification from the presence of the child’s presence.

Duress is a defence to the charge.

If you require Expert Legal Advice from an Experienced Criminal Defence Lawyer for your Use Carriage Service for Sexual Activity Child Under 16 matter, call Sydney Criminal Lawyers® today on (02) 9261 8881.

The Legislation

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.

Why Choose Sydney Criminal Lawyers®?

Going to court can be nerve-racking, but having a strong and compassionate legal team behind you can make the experience significantly easier to deal with.

Here are 12 reasons to choose our multi-award winning legal team:

  1. Proven Track Record of Exceptional Results

    Sydney Criminal Lawyers® consistently achieves outcomes which are in the highest percentile of the Judicial Commission’s sentencing statistics for criminal cases.

    Our legal team devises effective case-strategies and fights hard to have cases dropped entirely or charges downgraded – saving clients the time, expense and stress of a defended hearing or jury trial.

    Where cases nevertheless proceed, our lawyers have an outstanding track record of winning defended Local Court hearings, and complex jury trials in the District and Supreme Courts.

    We also consistently win appeals in the District and Supreme Courts (including the NSWCCA) after clients have received unsatisfactory results with other law firms in the lower courts.We are one of the few firms to achieve successful criminal law appeals in the High Court of Australia.

    Where our clients wish to plead guilty, we frequently achieve ‘dismissals’ and ‘non convictions’ in cases where other lawyers have advised there is no chance of doing so.

  2. Highest Level of Client Satisfaction

    We have the best and most comprehensive client review record of any law firm in Australia.

    Regular communication, accessibility and quality service are our team’s highest priorities.

    We are committed to thoroughly explaining all steps involved in the criminal law process, providing regular updates throughout the proceedings, and making ourselves accessible and responsive.

    We are passionate about providing an exceptional level of service to our clients, and we fight hard to achieve optimal results in the shortest period of time.

  3. Australia’s Most Awarded Criminal Law Firm

    We have received more awards and accolades than any other criminal law firm in Australia. Our team has been awarded “Criminal Defence Firm of the Year in Australia” in a number of prestigious and competitive awards programs for several years running.

    The awards recognise our exceptional track record of results, our outstanding client service, the high level of satisfaction we achieve, the affordability of our services and our overall excellence.

  4. Fixed Fees

    We want our clients to know exactly how much their cases will cost from the very start. That’s why we were the first criminal law firm in Australia to publish ‘fixed fees’, back in 2004.

    We offer fixed fees for most types of criminal cases and services.Our fixed fees apply to a range of Local Court cases such as drink driving, drug possession, fraud, common assault and AVOs, and also specific services such as prison visits, bail applications, appeals and defended hearings.

    Unlike many other law firms, our fixed fees are published on our website – which ensures transparency and certainty.

  5. Free First Appointment

    For those who are going to court, we offer a free first conference of up to an hour with one of our Senior Criminal Defence Lawyers.

    We also offer a free first conference to those who have received an unsatisfactory result after being represented in court by another law firm, or after representing themselves, and wish to appeal.

  6. Specialist Lawyer Guarantee

    We guarantee that only lawyers with substantial criminal defence experience will work on your case and appear for you in court.

    This ensures our clients receive the highest quality representation from an experienced, specialist criminal lawyer.

  7. All NSW Courts

    From Bombala to Broken Hill, our lawyers appear in courts throughout New South Wales – and across Australia for Commonwealth cases.

    And we offer fixed fees for most criminal and traffic law cases throughout the state.

  8. Accredited Specialists

    Our entire firm is exclusively dedicated to criminal law – which makes us true specialists.

    All of our lawyers have years of experience representing clients in criminal cases, and our principal has been certified by the Law Society of NSW as an Accredited Criminal Law Specialist since 2005.

    An ‘Accredited Specialist’ is a lawyer who has practised for at least 5 years in a particular field of law (such as criminal law), has passed a rigorous assessment process conducted by the Law Society of NSW, and has been selected by the Specialist Accreditation Committee of the Law Society as an expert in the field.

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    Our team is passionate about achieving results, and unlike many other law firms, our lawyers do not have monthly financial ‘budgets’ to meet.

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  11. Familiar with Magistrates and Judges

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  12. Convenience

    We have offices in locations across the Sydney Metropolitan Area and beyond, including:

    We offer free parking at our Sydney CBD offices, and all of our offices are close to train stations and bus terminals.

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    If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at info@sydneycriminallawyers.com.au.

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