Aggravated Sexual Act With a Child Aged Between 10 and 16 Years is an offence under section 66DE of the Crimes Act 1900, which carries a maximum penalty of 5 years in prison.
To establish the offence, the prosecution must prove beyond reasonable doubt that you intentionally:
- Carried out a sexual act with or towards a child aged at least 10 but less than 16 years, or you incited the child to carry out a sexual act with or towards you, or you incited a third person to carry out a sexual act with or towards the child, or you incited the child to carry out a sexual act with or towards a third person, and
- You did so in ‘circumstances of aggravation’
‘Sexual act’ is defined as any act, other than sexual touching, which occurs in circumstances where a reasonable person would consider it sexual.
Matters considered when deciding whether an act is sexual include:
- Whether the area of the body involved is the person’s genital area, anal area or, in the case of a female, or a transgender or intersex person identifying as female, the breasts, or
- Whether the acts is for sexual arousal or sexual gratification, or
- Whether any other aspect or circumstance makes it sexual
Conduct which may amount to a sexual act includes:
- inciting another to masturbate
- carrying out a simulated sexual act, or
- inciting another to carry out a simulated sexual act.
‘Circumstances of aggravation’ are where:
- At the time of, or immediately before or after your conduct you intentionally or recklessly inflicted actual bodily harm on the child or another person present or nearby, or
- At the time of, or immediately before or after your conduct you threatened to inflict actual harm on the child, or another person present or nearby by means of an offensive weapon or instrument, or
- You were in the company of another person or persons, or
- The child was under your authority, or
- The child had a serious physical disability, or
- The child had a cognitive impairment, or
- You took advantage of the child being under the influence, or
- Before or after your conduct you deprived the child of his or her liberty, or
- You broke into a dwelling-house or other building intending to commit a ‘serious indictable offence’, which is an offence carrying a maximum penalty of at least 5 years in prison
‘Actual bodily harm’ is that which is more than ‘transient or trifling’ and includes lasting scratches, bruises and abrasions.
You were ‘reckless’ if you foresaw the possibility of inflicting actual bodily harm, but went ahead with your actions regardless.
An ‘offensive weapon or instrument’ is:
- A dangerous weapon
- Anything made or adapted for offensive purposes, or
- Anything used, intended for use or threatened to be used
For offensive purposes, even though it is not ordinarily used for such purposes or ordinarily capable of causing harm.
A ‘dangerous weapon’ is:
- A firearm or imitation firearm
- A prohibited weapon, or
- A spear gun
An act is not sexual if it is carried out for a genuine medical or hygienic purpose.
Duress is a defence to the charge.