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Using a Carriage Service to Procure a Child for Sexual Activity in Your or Another’s Presence

Using a carriage service to procure a child for sexual activity in your or another’s presence is an offence under section 474.26(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 used a carriage service to transmit a communication to another person (the recipient)
  2. You intended by doing so to procure the recipient to engage in sexual activity with another (the participant)
  3. The recipient was under the age of 16 years, or you believed him or her to be under that age
  4. The participant was under the age of 18 years of age, or you believed him or her to be under that age, and
  5. You intended for the sexual activity to take place in your presence, or in the presence of another person who was at least 18 years of age, or who you believed was at least 18 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.

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 did not believe the person or persons involved were of the required age.

For the purpose of establishing your belief about age, any representation made to you that a person was under, of or over a certain age is proof that you believed he or she was 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 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.

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 communication to the recipient.

Duress is a defence to the charge.

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