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Causing an Article to be Carried by Post Intending to Procure a Person Under 16 to Engage in Sexual Activity in Your or Another’s Presence

Causing an article to be carried by post intending to procure a person under 16 to engage in sexual activity in your or another’s presence is an offence under section 471.24(3) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 15 years in prison.

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

  1. You caused an article to be carried by a postal or similar service to another person (the recipient)
  2. You did so intending to procure the recipient to engage in sexual activity with another person (the participant)
  3. The recipient was under 16 years of age, or you believed he or she was under that age
  4. The participant was under 18 years of age, or you believed him or her to be under that age, and
  5. You intended the sexual activity to take place in your presence, or in the presence of another person aged at least 18 years.

To ‘procure’ is to encourage, entice, recruit or induce, whether by threats, promises or otherwise.

‘Sexual activity’ includes sexual intercourse, sexual touching and other acts of a sexual nature.

You are not guilty of the offence if you establish to the court on the balance of probabilities that you believed the recipient to be at least 16 years of age, or the participant to be at least 18 years of age.

For the purpose of establishing your belief about age, any representation made to you that the recipient or participant was under, of or over a certain age is proof that you believed he or she was, or they were, of the represented age, unless there is evidence to the contrary.

When determining your belief about age, the court may consider a range of matters including:

  1. The recipient’s or participant’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.

It is immaterial that the recipient was a fictitious person representing themselves as a real person.

You may be found guilty even if it was impossible for the sexual activity to take place.

You are not guilty if you attempted but failed to convey the article to the recipient or participant.

Duress and necessity are defences to the charge.

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