By Jimmy Singh and Tayla Regan
The Law protects children who are aged less than 16 years.
Section 66C of the Crimes Act 1900 (NSW), for example, provides for different maximum punishments to those who have sex with children, depending on the age bracket of the child, regardless of consent.
For the offences of child sexual intercourse, it is no defence to say that the child gave consent or was a willing participant. The child being a willing participant in a case, however, is a relevant mitigating factor that can reduce the ultimate punishment an offender gets in court.
Children under 16 years of age are considered incapable of giving consent.
Any experienced sex offence lawyers in Sydney can tell you, that a common defence often raised is the defence of an honest and reasonable mistake as to the child’s age. This also depends on the charge you are faced with, as this defence is not available to all child sex charges.
Defences to Child Sex Charges
Honest and Reasonable Mistake of age Defence: You can be found not guilty of having sex with a child under 16 years of age, where in a set of particular circumstances, you honestly believed that the child was at least 16 years of age, where in those circumstances, it was reasonable for you to have made the mistake about to the child’s age.
To succeed in such a defence, the circumstances of your belief must be raised in evidence. Once raised, the prosecution will have the job of proving that you either didn’t honestly believe the child was at least 16, or, that it was not reasonable for you to have held that belief in the circumstances.
This kind of defence only applies to the charge under section 66C(3) where the child is between 14 and 16 years of age. It does not apply to a situation where the child is under 14 years of age.
Other defences can include, mistaken identify where you are mistakenly accused as being the actual perpetrator, an absence of any sexual intercourse, or where the alleged victim was actually at least 16 years of age at the time.
The defence of honest and reasonable mistake of fact is reflected the most cited authority on this defence in the case Proudman v Dayman  HCA 28.
Imagine a circumstance where you have met up with a person who says that he/she is 16 years old.
You take that person back to your home, and you both engage in consensual sexual intercourse.
The next day, you are woken to the sound of police knocking on your door.
The police are there to arrest you, and charge you for engaging in sexual intercourse with a child who was actually under the age of 16 years.
You then find out that the person you had sex with the night before has lied to you about his/her age. He/she was actually 15 years old, which is below the legal age of consent.
This is what happened in the case of CTM v The Queen.
The Case of CTM v The Queen
After a night out, a minor (aged 15 at the time) and her two friends went back to a flat owned by a man named CTM (aged 17 at the time).
At some point during the night, the minor told CTM that she was 16 years old.
CTM, two of his friends, and the minor engaged in sexual intercourse that night.
CTM was later charged with the offence of sexual intercourse with a person aged between 14 and 16 years of age.
Upon arrest, CTM stated to police that the minor said that she was 16 and in year 10. He wanted to rely on the defence that he was honestly and reasonably mistaken about her age.
Despite stating this to the police in an initial interview, lawyers in this case failed to actually cross examine the girl on her lies, and CTM was unfortunately found guilty of the charge. He was given an 18 month imprisonment sentence which was wholly suspended on condition he enter into a good behaviour bond for 18 months.
Unfortunate for CTM, sufficient evidence was not raised in order to show that he was honestly mistaken. This was because no evidence as to his honestly was led in his case.
Had such evidence been led in the trial, the prosecution would then have been required to negate the honestly and reasonableness of his belief.
Penalties for Child Sex Offences
Penalties Where Child is Between 10 and 14 years
Having sexual intercourse with a child aged between 10 years, but less than 14 years of age attracts a penalty of up to 16 years imprisonment.
This offence is found in section 66C(1) Crimes Act 1900.
This offence also carries a standard period the offender should spend in prison before being eligible for release on parole (called the non-parole period) of at least 7 years imprisonment.
The aggravated form of this offence (under s66C(2) carries a penalty of 20 years imprisonment, with a standard non-parole period of at least 9 years imprisonment.
Penalties Where Child is Between 14 and 16 years
Having sexual intercourse with a child aged between 14 years, but less than 16 years of age carries a penalty of up to 10 years imprisonment.
This offence is found in section 66C(3) Crimes Act 1900.
This offence doesn’t carry a standard period that the offender should spend in prison before being released on parole (called the standard non-parole period).
However, the aggravated form of this offence (under s66C(4)) carries a term of 12 years imprisonment, with a 5 year standard non parole period.
Factors that Aggravate the Offence
Under section 66C(5) Crimes Act 1900, the offences will involve aggravation where, at the time of the sexual assault to the child aged between 14 and 16 years, there was also:
- An assault on the victim who sustained the kind of injury that caused at least some kind of bruising; or
- The offender threatened to inflict that kind of injury; or
- Apart from the offender and the victim, there was at least another person present at the time; or
- The victim was under some kind of authority of the offender; or
- The victim has a serious physical disability, cognitive impairment, was under the influence of alcohol or drugs; or
- The offender deprived the victim of his or her liberty; or
- The offender has broken into the victim’s home with the intention of committing a serious offence that carries a penalty of at least 5 years of more imprisonment.
Penalties Where Child is Under 10 years
Having sexual intercourse with a child under the age of 10 attracts a penalty of imprisonment of life.
This is found in section 66A Crimes Act 1900.
This offence also carries a period that the law says should be a standard period the offender should spend inside prison before the offender is to be eligible for release on parole. This is called the non-parole period.
The standard no-parole period for this offence is 15 years imprisonment.
What are the Implications of being Convicted of a Child Sex Offence?
In addition to the penalties explained above, a person found guilty and convicted of a child sex offence may also face the following:
- Be classified as a registrable person under the Child Protection (Offenders Registration) Act This means, that your name and details of the charge and court outcome will be recorded on the child protection register. Depending on the charge, you will then be required to report to the police for a certain period of time. In the case of sexual re-offending, you can be required to report for the rest of your life.
- Be subjected to a Court Order under Child Protection (Offenders Registration) Act If the sex offence is not considered one that would ordinarily result in a person being listed as a registrable person, the Court can still make an order that you are one. The court can do this if it is satisfied that you pose a risk to the lives or sexual safety of children.
- Under the Child Protection (Working with Children) Act 2012, you will become a disqualified person. This means that you will be denied a ‘working with children check clearance’ and will not be able to work in any form of child-related work such as, teaching, child care services, or counselling children.
- Be registered as a high risk sex offender or high risk violent offender under the Crimes (High Risk Offenders) Act This means, that where you are sentenced to prison for the offence, an order can be made that you are to be further supervised in the community upon your release from prison. This can apply where the Court is satisfied that there is a high probability that you pose an unacceptable risk of committing another serious offence if not kept under supervision.
The problems people can face with these issues can be summarised in a Magistrates cases paper as follows:
“A problem is that it is not easy to be sure that a young person is over or under the age of 16 years. The age of children is not stamped on their foreheads. It is common knowledge that, by their mature appearance, many children who are under the age of 16 years can and do deceive others into believing honestly that they are above that age. Moreover, as such children can and do behave in that way, it is not easy to be sure that they will not have made their way into some place where they are not allowed to be. To use the present case as an example, it’s not easy to be sure that, in a public aquatic centre, there will be nobody under the age of 16 years in a spa, sauna and steam room area which is reserved for people over that age.”