In an effort to place the safety of our children first, the laws are required to be updated as we gain more insight into community expectations and needs.

Attorney-General Mark Speakman has outlined some of the new laws to be introduced into NSW to protect our children.

It is reported that there is force in the argument that teenagers (under 16-years) who ‘sext’ in a consensual relationship should not be charged for possessing or disseminating child pornography.

Retired Supreme Court Judge Stanley Jones is reported saying that there is a “disconnect between current laws that can criminalise young people engaging in sexting, which is becoming a normal part of healthy sexual relationships.”

Justice Jones suggested the introduction of guidelines for police to assist police officers in assessing when it is and isn’t appropriate to charge a young person for sexting, sharing or receiving sexually explicit photos on their smart phones or devices.

The New Defence for Possessing Child Abuse Material or Child Pornography

The new laws provide a new defence- You will be not guilty for possessing or sending naked photos if you and the others involved are younger than 18-years of age, where this sort of sexting was consensual amongst the teenagers involved.

This acknowledges the fact that teenagers do get involved in this sort of behaviour as part of sexual development and experimentation between themselves.

Otherwise, teenagers who consensually share or exchange sexting messages that include images between one another would risk prospects of a criminal conviction and imprisonment-which is what has been occurring.

Possessing ‘child abuse material’ (child pornography), or using a carriage service such as a mobile phone to access, transmit, publish, distribute, advertise, promote or make available is a criminal offence in NSW attracts very heavy penalties, including imprisonment.

A person guilty of possessing, disseminating or producing child pornography (‘child abuse material’) in NSW will face a penalty of up to ten-years imprisonment.

‘Child abuse material’ includes anything which “depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances offensive”:

  1. Another person who appears (or is or implied) to be:
    • A child as a victim of physical abuse, cruelty or torture; or
    • A child engaged in a sexual pose or sexual activity; or
    • A child in the presence of another person who’s engaged or appears to be engaged in a sexual pose or activity; or
  2. The private parts of another person who either is or appears to be (or implied to be) a child.

How does the court determine whether a reasonable person would regard material as being ‘offensive’?

To determine this, the law outlines a number of things that are to be taken into account, including:

  • Standards or decency, morality and propriety that is generally accepted by a reasonable adult;
  • Whether the material has any artistic, educational merit to it;
  • Whether the material has any journalistic merit to it;
  • The general character of the material to consider if it has any other character such as legal, scientific or medical.

The New “Similar-Age” Defence Between Teenagers Who Engage in Consensual Sex

In a response to the Royal Commission into Institutional Response to Child Sexual Abuse, a number of new laws have been proposed expected to be introduced into NSW, including the defence of “similar-age” where there is consensual sex between teenagers aged between 14 and 17 if the age gap between them is at least within 2-years.

The New Offence of Predators Gaining Access to Children by Grooming the Parents

A new offence is proposed, introducing a penalty of up to 6-years imprisonment to anyone who grooms a parent or carer of a child to gain trust to get access to their children for sexual intentions.

Mark Speakman has reportedly said, “the changes recognise sexual predators sometimes provide adults with gifts, money and other benefits as a way of cultivating their trust and gaining access to their children.”

See our previous blog on penalties for child grooming offences.

Heavier Penalties for Persistent Sexual Abuse of Children

Let alone doing it on one occasion, it is even more of a serious criminal offence to persistently sexually abuse a child.

New changes in the law will attract heavier penalties for this offence, from twenty-five-years imprisonment to life imprisonment.

The new laws to be introduced will also make it easier for the police to prove this charge. “The prosecution will now only need to prove a defendant engaged in 2 or more unlawful sexual acts with a person under sixteen over a specific period of time.” said Mark Speakman.

Often in historic child sexual abuse cases, alleged victim’s who give evidence in the witness box tend to give different versions of their recollection of alleged abuse. The new proposed laws will recognise the fact that trauma can impact on a person’s ability to remember in these circumstances- the Judge will be allowed to inform the jury members of this fact where the alleged victim has given different versions.

The proposed new laws will also prohibit a Judge from reducing the penalty for this offence by taking into account an offenders otherwise good character. Offenders convicted for these offences will also be sentenced by the Judge based on today’s sentencing laws and principles, not the sentencing laws that applied or would have applied back when the historical sexual offence occurred.

Leonie Sheedy, CEO of Care Leavers Australia Network is reported saying that, “I think that it’s so good that they can no longer go in court and lawyers can defend [them as] as upstanding member of society, they can’t use their good character, of all their charity deeds… that is not an excuse.”

What’s the Current Law on Persistent Sexual Abuse of a Child in NSW?

It is a criminal offence in NSW to engage in conduct that amounts to a ‘sexual offence’ to a child (under 18-years-of-age) on three or more separate occasions occurring on separate days during any period. The penalty for this is currently 25-years imprisonment under section 66EA(1) of the Crimes Act 1900 (NSW).

You cannot be guilty for this offence unless the prosecution can prove, beyond reasonable doubt:

  1. You engaged in conduct that constitutes a ‘sexual offence’, including sexual assault, indecent assault or act of indecency (and any offences under section 66C, 66D, 66F, 73, 74, 78H, 78I, 78K, 78L, 78N, 78O, 78Q or 80A of the Crimes Act 1900 (NSW). ; and
  2. That conduct was in relation to a child under the age of 18-years; and
  3. You engaged in this conduct on at least 3 different occasions on separate days, which can be many years ago.

If the police are unable to prove any one of the above elements of this offence, the Court will dismiss your charge.

It doesn’t matter whether the alleged conduct was similar or different, so long as the conduct amounts to a ‘sexual offence’.

A person who engages in conduct that amounts to a ‘sexual offence’ will still be guilty if two of the three occasions that the alleged conduct occurred in had occurred outside of New South Wales- so long as at least one of those occasions of the alleged conduct occurred within NSW. This will also mean that if all three of the occasions the conduct occurred in had occurred outside NSW, then you cannot be charged or found guilty in NSW.

The alleged victim(s) of this kind of offence is not expected to actually specific, remember or prove the actual dates or specifics of the circumstances of the alleged occasions. A person accused of this offence can still be guilty in circumstances the alleged victim cannot specify, remember or prove the circumstances of the alleged occasions under the law.

The charge of persistent sexual abuse of a child however is required to specify on it the period over which the offence occurred with ‘reasonable particularity’, and it must sufficiently outline the nature of each separate offences alleged during the alleged periods.

A person accused of this offence can still be found guilty by a jury if the evidence doesn’t clarify the dates or order of the alleged occasions that each ‘sexual offence’ occurred in, so long at the jury are satisfied as to the material facts of the three occasions.

A person who has been found not guilty and acquitted of a ‘sexual offence’ (not the offence of persistent sexual abuse of a child charge) cannot then later be tried and found guilty of a charge of ‘persistent sexual abuse of a child’ involving the same child in relation to evidence that was already used for the charge he/she was acquitted for.

However, if the court is satisfied that a person did commit any one of the conducts amounting to a ‘sexual offence’ from the three separate occasions alleged, but where the court isn’t satisfied that the other alleged conducts on the other occasions occurred, then although the person will be found not guilty and acquitted for the charge of ‘persistent sexual abuse of a child’- the court can still find the accused person guilty of the ‘sexual offence’ that it is satisfied did occur.

AUTHOR Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

View all posts by Jimmy Singh