Using a carriage service transmit a communication to another intending to make it easier to groom a person under the age of 16 years is an offence under section 474.27AA(2) 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:
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.
‘Sexual activity’ includes a broad range of conduct of a sexual nature, including sexual intercourse, sexual touching and masturbation.
To ‘procure’ is to encourage, entice, recruit or induce, whether by threats, promises or otherwise.
You are not guilty of the offence if you establish to the court on the balance of probabilities that you believed the child was at least 16 years of age, or the participant was under 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 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:
It is immaterial that the child was a fictitious person represented 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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