If you have been charged with sexual intercourse without consent, the prosecutor must prove that:
For an offence under subsection 3, the prosecutor must also prove that:
What is sexual intercourse?
Sexual intercourse covers a broad range of activities. This includes using a body part, such as a penis, fingers or tongue, or an object under your control to penetrate the vagina or anus of another person. Inserting your penis into the mouth of another person or any other type of Cunnilingus/oral sex also constitutes sexual intercourse.
What is consent?
A person consents to sexual intercourse if they freely and voluntarily agree to the sexual intercourse. A person may, by words or conduct, withdraw consent to a sexual activity at any time. The fact that a person does not offer physical or verbal resistance does not, only because of that fact, mean there is consent. A person who consents on an earlier occasion is not, only because of that fact, presumed to consent on a later occasion. Whether or not someone consented to sexual intercourse will depend on all the surrounding circumstances and will be determined by the trier of fact, in these circumstances the jury.
Who does not have the capacity to consent to sexual intercourse?
A person cannot consent to sexual intercourse if:
How could it be proved that I knew the other person was not consenting to sexual intercourse?
This will depend on all the surrounding circumstances, including whether you:
What does recklessness mean?
In this context, you are reckless if either:
How does the court determine whether I acted intentionally?
For an act to have been intentional, you need to have made the decision to bring about an act of a particular kind or to obtain a particular result. This is a question for the jury, who would consider all of the surrounding circumstances including what you did and said. In these circumstances, it means that you knew the other person did not consent and made the active decision to continue having sexual intercourse regardless.
What is an aggravated offence?
An offence will be aggravated if occurring in a family violence context. This means the offender and victim need to be either domestic or former domestic partners, intimate or former intimate partners or relatives.
What does it mean to have acted in company?
In the context of sexual assaults, to have acted in company means that there was another person present, in addition to a complainant and defendant, and materially involved in the conduct. This does not mean that the other person also had to have sexual intercourse with the victim. For example, the other present person could have just been in the room to ensure that the person could not escape, or they could have been watching the door. Usually, to determine that someone acted in company, the court will require that their conduct or presence assisted in commissioning the offence or emboldened the primary perpetrator. You and the other person/s must have agreed to achieve the common purpose of having sexual intercourse with the accused victim.
Whether you should plead guilty or not guilty will depend on a number of factors, including whether you accept that you had sexual intercourse with the victim, whether the victim was consenting, and whether you reasonably believed the victim was consenting.
You may accept that you had non-consensual sexual intercourse with the victim, but your criminal defence lawyer may be able to persuade the prosecution to accept a plea of guilty to a less serious charge such as act of indecency without consent.
Alternatively, you may accept that you had non-consensual sexual intercourse with the victim, but disagree with part or all of what police say happened. In these circumstances, your legal counsel may be able to negotiate with the prosecution to change the statement of facts.
Q. If I plead guilty or am found guilty, will a conviction be recorded?
Q. Will I go to gaol for sexual assault?
Q. What will the court take into account when sentencing?
If you have been charged with an act of indecency, the prosecutor must prove that:
For an offence under subsection 3, the prosecutor must also prove that:
What is an act of indecency?
There is no definition in the Crimes Act for an ‘act of indecency’. This term has been defined in common law as acts that would be deemed contrary to community standards of decency or would offend “the ordinary modesty of the average person”. Some examples include exposing yourself in public or engaging in physical sexual conduct with someone without any act of penetration.
What is consent?
A person consents to a sexual act if they freely and voluntarily agree to it. A person may, by words or conduct, withdraw consent to sexual activity at any time. The fact that a person does not offer physical or verbal resistance does not, only because of that fact, mean there is consent. A person who consents on an earlier occasion is not, only because of that fact, presumed to consent on a later occasion. Whether or not someone consented to sexual activity will depend on all the surrounding circumstances and will be determined by the trier of fact, in these circumstances the magistrate or jury.
Who does not have the capacity to consent?
A person cannot consent to an act of indecency if:
How could it be proven that I knew the other person was not consenting?
This will depend on all the surrounding circumstances, including whether you:
What does recklessness mean?
Being reckless in the context of a criminal offence means that you were aware that your conduct may have brought about a particular result and made the decision to continue that conduct regardless of the potential ramifications. In this context, you are reckless if either:
Section 60(5) of the Crimes Act 1900 (ACT) stipulates that proof of knowledge or recklessness is sufficient to establish the element of recklessness for this section.
What does it mean to have acted in company?
In the context of acts of indecency, to have acted in company means that there was another person present and materially involved in the conduct. This does not mean that the other person also engaged in sexual activity with the victim. For example, the other present person could have just been in the room to ensure that the person could not escape, or they could have been watching the door. Usually, to determine that someone acted in company, the court will require that their conduct or presence assisted in commissioning the offence or emboldened the primary perpetrator. You and the other person/s must have agreed to achieve the common purpose of engaging in an act of indecency on or in the presence of the complainant, the accused, with the accused or a third person who is present or nearby.
What is an aggravated offence?
An offence will be aggravated if occurring in a family violence context. This means the offender and victim need to be either domestic or former domestic partners, intimate or former intimate partners or relatives.
Whether you should plead guilty or not guilty will depend on a number of factors, including whether you accept that you acted indecently on or in the presence of another person or whether you accept that you were reckless as to whether they consented.
You may accept that you acted indecently without consent but disagree with part or all of what police say happened. In these circumstances, your criminal lawyer may be able to negotiate with the prosecution to change the statement of facts.
Q. If I plead guilty or am found guilty, will a conviction be recorded?
It is quite likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
Q. Will I go to jail for an act of indecency?
It is possible that you will go to jail. The maximum penalty for this offence is 7 years imprisonment or 9 years in aggravated circumstances. However, the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to reduce the length of the jail sentence.
Q. What will the court take into account when sentencing?
The court will take into account the nature and extent of the act of indecency, as well as the surrounding circumstances. The court will also take into account many other factors including your personal circumstances and criminal history.
If you have been charged with sexual assault in the first degree, the prosecutor must prove that:
For an offence under subsection 3, the prosecutor must also prove that:
What is sexual intercourse?
Sexual intercourse covers a broad range of activities. This includes using a body part, such as a penis, fingers or tongue, or an object under your control to penetrate the vagina or anus of another person. Inserting your penis into the mouth of another person or any other type of Cunnilingus/oral sex also constitutes sexual intercourse.
How does the court determine whether I acted intentionally?
For an act to have been intentional or for you to have intended to bring about particular circumstances, you need to have made the decision to bring about an act of a particular kind or particular result. This is a question for the jury, who would consider all of the surrounding circumstances including what you did and said.
What is Grievous Bodily Harm?
The Crimes Act 1900 (ACT) defines grievous bodily harm as “any permanent or serious disfiguring of the person”. In DPP v Smith [1961] AC 290 and Swan v R [2016] NSWCCA 79, the courts clarified that this refers simply to any injury deemed “really serious”. This includes a fractured eye socket, a broken bone, or a severe laceration to the face which requires stitching and will permanently leave a scar.
How does the court determine whether I inflicted grievous bodily harm
Whether you inflicted grievous bodily harm on another person is a matter of fact and will therefore be determined by the jury at trial. To prove this element, there must be a sufficiently direct link between your conduct and the harm inflicted upon the other person and no discernable alternative cause. This assessment is ultimately a matter of causation and will be examined with consideration for all of the surrounding circumstances including what you did and said.
What does it mean to have acted in company?
In the context of sexual assaults, to have acted in company means that there was another person present and materially involved in the conduct. This does not mean that the other person also had to have also engaged in sexual intercourse with the accused victim. For example, the other present person could have just been in the room to ensure that the person could not escape, or they could have been watching the door. Usually, to determine that someone acted in company, the court will require that their conduct or presence assisted in commissioning the offence or emboldened the primary perpetrator. You and the other person/s must have agreed to achieve the common purpose of having sexual intercourse with the accused victim or with a third person who is present or nearby.
What is an aggravated offence?
An offence will be aggravated if occurring in a family violence context. This means the offender and victim need to be either domestic or former domestic partners, intimate or former intimate partners or relatives.
Whether you should plead guilty or not guilty will depend on a number of factors, including whether you accept that you inflicted grievous bodily harm on the victim or whether you accept that you did so with the intention of having sexual intercourse with them or another person.
You may accept that you had inflicted grievous bodily harm on the victim, but your criminal defence lawyer may be able to persuade the prosecution to accept a plea of guilty to a less serious charge such as intentionally inflicting grievous bodily harm.
Alternatively, you may accept that you inflicted grievous bodily harm with the intent to engage in sexual intercourse, but disagree with part or all of what police say happened. In these circumstances, your offences lawyer may be able to negotiate with the prosecution to change the statement of facts for sentencing.
Q. If I plead guilty or am found guilty of sexual assault in the first degree, will a conviction be recorded?
It is almost certain that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
Q. Will I go to jail for sexual assault?
It is quite likely that you will go to jail. The maximum penalty for this offence is 17 years imprisonment or 21 years in aggravated circumstances. It is important that legal counsel properly prepares and presents your case to minimise the risk of you going to jail, or to reduce the length of the jail sentence.
Q. What will the court take into account when sentencing?
The court will take into account the nature and extent of the grievous bodily harm, as well as the surrounding circumstances. The court will also take into account many other factors including your personal circumstances and criminal history.
If you have been charged with sexual assault in the second degree, the prosecutor must prove that:
For an offence under subsection 3, the prosecutor must also prove that:
What is sexual intercourse?
Sexual intercourse covers a broad range of activities. This includes using a body part, such as a penis, fingers or tongue, or an object under your control to penetrate the vagina or anus of another person. Inserting your penis into the mouth of another person or any other type of Cunnilingus/oral sex also constitutes sexual intercourse.
How does the court determine whether I acted intentionally?
For an act to have been intentional or for you to have intended to bring about particular circumstances, you need to have made the decision to bring about an act of a particular kind or particular result. This is a question for the jury, who would consider all of the surrounding circumstances including what you did and said.
How does the court determine whether I inflicted actual bodily harm
Whether you inflicted actual bodily harm on another person is a matter of fact and will therefore be determined by either the Magistrate or Jury presiding over the trial. To prove this element, there must be a sufficiently direct link between your conduct and the harm inflicted upon the other person and no discernable alternative intervening cause or factor. This assessment is ultimately a matter of causation and will be examined with consideration for all of the surrounding circumstances including what you did and said.
What is actual bodily harm?
In R v Donovan [1934] 2 KB 498, the court determined that to constitute actual bodily harm an injury need not be permanent, but “must be more than merely transient or trifling”. Put simply, the injury does not have to be particularly serious, but must be more than, for example, a small bruise that is not visible after more than a day or an injury which only involved temporary pain. The definition ranges from minor cuts, scratches and bruises to more serious injuries such as some minor fractures and psychological harm.
What does it mean to have acted in company?
In the context of sexual assaults, to have acted in company means that there was another person present and materially involved in the conduct. This does not mean that the other person also had to have engaged in sexual intercourse with the alleged victim. For example, the other present person could have just been in the room to ensure that the person could not escape, or they could have been watching the door. Usually, to determine that someone acted in company, the court will require that their conduct or presence assisted in commissioning the offence or emboldened the primary perpetrator. You and the other person/s must have agreed to achieve the common purpose of having sexual intercourse with the accused victim or with a third person who is present or nearby.
What is an aggravated offence?
An offence will be aggravated if occurring in a family violence context. This means the offender and victim need to be either domestic or former domestic partners, intimate or former intimate partners or relatives.
Whether you should plead guilty or not guilty will depend on a number of factors, including whether you accept that you inflicted actual bodily harm on the victim or whether you accept that you did so with the intention of having sexual intercourse with them or another person.
You may accept that you had inflicted actual bodily harm on the victim, but your defence lawyer may be able to persuade the prosecution to accept a plea of guilty to a less serious charge such as assault occasioning actual bodily harm.
Alternatively, you may accept that you inflicted actual bodily harm with the intent to engage in sexual intercourse but disagree with part or all of what police say happened. In these circumstances, your criminal lawyer may be able to negotiate with the prosecution to change the statement of facts for sentencing.
Q. If I plead guilty or am found guilty, will a conviction be recorded?It is almost certain that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
Q. Will I go to gaol for sexual assault?
It is quite likely that you will go to jail. The maximum penalty for this offence is 14 years imprisonment or 18 years in aggravated circumstances. It is important that legal counsel properly prepares and presents your case to minimise the risk of you going to jail, or to reduce the length of the jail sentence.
Q. What will the court take into account when sentencing?
The court will take into account the nature and extent of the actual bodily harm, as well as the surrounding circumstances. The court will also take into account many other factors including your personal circumstances and criminal history.
If you have been charged with sexual assault in the third degree, the prosecutor must prove that:
For an offence under subsection 3, the prosecutor must also prove that:
How does the court determine whether I acted intentionally?
For an act to have been intentional or for you to have intended to bring about particular circumstances, you need to have made the decision to bring about an act of a particular kind or particular result. Whether you acted with the intention to engage in sexual intercourse is ultimately a question for the jury, who would consider all of the surrounding circumstances including what you did and said.
What is sexual intercourse?
Sexual intercourse covers a broad range of activities. It is taken to include the penetration, to any extent, of the genitalia or anus of a person by any part of the body of another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law or penetration of these areas by an object under your control. This definition also includes fellatio (the introduction of any part of the penis of a person into the mouth of another person) or cunnilingus.
What can amount to unlawful assault without physical force?
Your conduct or actions may still be considered assault even if no physical contact is made with the complainant if your words or actions caused them to fear that immediate and unlawful violence would be applied. Examples include directly threatening somebody by shouting at them, or merely moving towards somebody in an intimidatory manner.
What is unlawful touching/violence?
Unlawful touching/violence is defined as any contact with another person that occurs without their consent and is deemed unlawful, but which does not amount to or result in actual bodily harm. In R v Donovan [1934] 2 KB 498, the court determined that to constitute actual bodily harm an injury need not be permanent, but “must be more than merely transient or trifling”. Put simply, the injury does not have to be particularly serious, but must be more than, for example, a small bruise that is not visible after more than a day or an injury which only involved temporary pain. The definition ranges from minor cuts, scratches and bruises to more serious injuries such as some minor fractures and psychological harm.
The courts have accepted that this definition is to exclude any unwanted contact that would naturally occur during the course of everyday life such as brushing up against somebody or bumping into them whilst walking along a busy street/pavement.
How does the prosecution prove that I threatened another person?
Whether you made a threat to another is a matter of fact and will therefore be decided by the jury who will consider the surrounding circumstances, including what you said and did. It is not necessary to prove that the other person actually feared that the threat would be carried out and a person may be found guilty even if carrying out the threat is impossible.
What is Grievous Bodily Harm?
The Crimes Act 1900 (ACT) defines grievous bodily harm as “any permanent or serious disfiguring of the person”. In DPP v Smith [1961] AC 290 and Swan v R [2016] NSWCCA 79, the courts clarified that this refers simply to any injury deemed “really serious”. This includes a fractured eye socket, a broken bone, or a severe laceration to the face which requires stitching and will permanently leave a scar. To be found guilty of this offence, the prosecution must prove that you threatened to inflict an injury of this magnitude upon the recipient or any third person.
What does it mean to have acted in company?
In the context of sexual assaults, to have acted in company means that there was another person present and materially involved in the conduct. This does not mean that the other person also had sexual intercourse with the victim. For example, the other present person could have just been in the room to ensure that the person could not escape, or they could have been watching the door. Usually, to determine that someone acted in company, the court will require that their conduct or presence assisted in commissioning the offence or emboldened the primary perpetrator. You and the other person/s must have agreed to achieve the common purpose of having sexual intercourse with the accused victim or with a third person who is present or nearby.
What is an aggravated offence?
An offence will be aggravated if occurring in a family violence context. This means the offender and victim need to be either domestic or former domestic partners, intimate or former intimate partners or relatives.
Whether you should plead guilty or not guilty will depend on a number of factors, including whether you accept that you unlawfully assaulted the other person, threatened to inflict grievous or actual bodily harm, or whether you accept that you did so with the intention of having sexual intercourse with them or another person.
You may accept that you unlawfully assaulted the victim, but your criminal defence lawyer may be able to persuade the prosecution to accept a plea of guilty to a less serious charge such as assault occasioning actual bodily harm.
Alternatively, you may accept that you inflicted actual bodily harm with the intent to engage in sexual intercourse but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the statement of facts for sentencing.
Q. If I plead guilty or am found guilty, will a conviction be recorded?
It is almost certain that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
Q. Will I go to gaol for sexual assault?
It is quite likely that you will go to jail. The maximum penalty for this offence is 12 years imprisonment or 15 years in aggravated circumstances. It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to reduce the length of the jail sentence.
Q. What will the court take into account when sentencing?
The court will consider the nature and extent of the assault or threat, as well as the surrounding circumstances. The court will also take into account many other factors including your personal circumstances and criminal history.
If you have been charged with threatening to capture or distribute intimate images, the prosecutor must prove that:
How does the prosecution prove that I threatened to capture or distribute an intimate image?
Whether you made a threat to another person to capture or distribute an intimate image is a matter of fact and will therefore be decided by the magistrate or jury who will consider the surrounding circumstances, including what you said and did. A threat may be made by any conduct whether explicit, implicit, conditional, or unconditional. It is also not necessary to prove that the other person actually feared that the threat would be carried out and a person may be found guilty even if carrying out the threat is impossible, such as in circumstances where the image does not exist, or technical limitations prevent the person from capturing or distributing the image.
How can the prosecution prove I captured an intimate image?
A person is taken to have captured an intimate image of another person if the person captures an image of the other person, with a camera or by any other means, in such a way that a recording is made of the image, the image is capable of being transmitted in real time, with or without retention or storage, in a physical or electronic form, or the image is otherwise capable of being distributed.
How can the prosecution prove I distributed an intimate image?
Under the Crimes Act 1900 (ACT), a person is determined to have distributed an image if they send, supply, show, exhibit, transmit or communicate to another person, or make available for viewing or access by another person an image of another individual whether done in person, electronically, digitally or in any other way. A person is still taken to have distributed an image whether or not another person views or accesses the image.
How does the court determine whether I acted intentionally?
For an act to have been intentional, you need to have made the decision to bring about an act of a particular kind or particular result. This is a question for the jury or magistrate, who would consider all of the surrounding circumstances including what you did and said.
What does ‘reckless’ mean in the context of threaten to capture or distribute intimate images in the ACT
Being ‘reckless as to whether or not that the other person would fear that the threat would be carried out’ means that you realised that your threat may cause the complainant to fear that the threat would be carried out but did not care and continued regardless. This is a question for the jury or magistrate, who would consider all of the surrounding circumstances.
What constitutes an intimate image?
The Australian E-Safety Commissioner defines an intimate image as an image depicting or containing a person’s genital area or anal area (whether bare or covered by underwear), a person’s breasts if that person identifies as female, transgender, or intersex, private activity such as a person undressing, using the bathroom or engaging in sexual activity, or a picture of a person not wearing religious or cultural attire who would usually wear such attire in public.
What is an aggravated offence?
An offence will be aggravated if occurring in a family violence context. This means the offender and victim need to be either domestic or former domestic partners, intimate or former intimate partners or relatives.
This will depend on a number of factors including, for example:
You may accept that you threatened the complainant, but:
Although there are many sentencing alternatives, it is possible that you will go to jail if you plead guilty or are found guilty. The maximum penalty for this offence is 300 penalty units, imprisonment for 3 years or both. In aggravated circumstances the maximum penalty is 400 penalty units, imprisonment for 4 years or both. However, these penalties are typically reserved for the most serious examples of these offences.
The type of sentence you receive will ultimately depend on the facts of your case, your personal circumstances, criminal history, and a variety of other factors.
It is important that a criminal defence lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to persuade the court to reduce the length of the gaol sentence.
If you have been charged with capturing intimate data, the prosecutor must prove that:
For an offence under subsection 5, the prosecutor must prove that:
What is considered indecent or an invasion of privacy?
There is no definition in the Crimes Act for what constitutes’ indecency’. This term has been defined in common law as acts that would be deemed contrary to community standards of decency or would offend “the ordinary modesty of the average person”. An example would be a picture of an individual in a sexually suggestive position. Whether or not your actions constituted an invasion of privacy will ultimately be a matter for the magistrate or jury who will consider all of the surrounding circumstances.
How does the prosecution prove I observed another person?
In this context, the term observed is given its ordinary and natural meaning. Whether or not you will be deemed to have observed another person will be a matter of judgment for the magistrate or jury who will consider all of the surrounding circumstances. Typically, this will involve conduct such as using a camera, binoculars, or a similar device to watch or look at another person.
What is considered a ‘device’?
In this context, the term device is also given its ordinary and natural meaning and is taken to include things such as binoculars, cameras, and similar instruments. It is likely that if you used an object that assisted you in observing another person it will be found to fall under this term. ‘Device’ does not include spectacles, contact lenses or a similar device when used by someone with impaired sight to overcome the impairment.
How can the prosecution prove I captured visual data of another person?
A person is deemed to have captured visual data of another person if they capture moving or still images of the other person by a camera or any other means in such a way that a recording is made of the images, the images are capable of being transmitted in real time with or without retention or storage in a physical or electronic form, or the images are otherwise capable of being distributed.
What is included in ‘genital or anal region’ and ‘breasts’?
The genital or anal region of another person includes that person’s genital or anal region whether it is covered by underwear or bare. Similarly, “breasts”, of a female or a transgender or intersex person who identifies as a female, also means the person’s breasts whether covered by underwear or bare. These terms are given their ordinary and natural meaning. An example could include using a mobile phone to take photos of a woman’s underwear under her skirt or down the front of her blouse.
What is an aggravated offence?
An offence will be aggravated if occurring in a family violence context. This means the offender and victim need to be either domestic or former domestic partners, intimate or former intimate partners or relatives.
Whether you should plead guilty or not guilty will depend on a number of factors, including whether you accept that you observed another person with the aid of a device or captured visual data of another person and whether a reasonable person would, in all the circumstances, consider the observing or capturing of visual data to be an invasion of privacy or indecent.
You may accept that you acted indecently without consent but disagree with part or all of what police say happened. In these circumstances, your criminal defence legal counsel may be able to negotiate with the prosecution to change the statement of facts for sentencing.
Q. If I plead guilty or am found guilty, will a conviction be recorded?
It is likely that if you plead guilty or found guilty that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
Q. Will I go to jail for an act of indecency?
It is possible that you will go to jail. The maximum penalty for this offence is 200 penalty units, imprisonment for 2 years, or both or 250 penalty units, imprisonment for 3 years, or both in aggravated circumstances. However, these penalties are reserved for the most serious of offending and it is possible that you will receive some type of alternative sentence. It is important that a criminal defence lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to reduce the length of the jail sentence.
Q. What will the court take into account when sentencing?
The court will consider the nature and extent of the act, as well as the surrounding circumstances. The court will also take into account many other factors including your personal circumstances and criminal history.
If you have been charged with incest, the prosecutor must prove that:
What is sexual intercourse?
Sexual intercourse covers a broad range of activities. This includes using a body part, such as a penis, fingers or tongue, or an object under your control to penetrate the vagina or anus of another person. Inserting your penis into the mouth of another person also constitutes sexual intercourse.
How does the court determine whether I acted intentionally?
For an act to have been intentional, you need to have made the decision to bring about an act of a particular kind or particular result. This is a question for the jury, who would consider all of the surrounding circumstances including what you did and said.
How does the court determine whether the child was under the age of 10 or 16 years?
This is a question for the trier of fact, in this instance the jury, who would consider all available supporting evidence to determine whether the child was under the age of 10 or 16 at the time of the alleged offence. Possible evidence might include birth certificates or any other relevant medical documentation.
What if I thought they were above the age of 16?
Section 55(5)(a) of the Crimes Act states that sexual intercourse with a young person under the age of 16 will not be unlawful if the defendant can establish that he or she believed on reasonable grounds that the person on whom the offence is alleged to have been committed was of or above the age of 16 years and that the person consented to the sexual intercourse.
This provision is designed to protect those who engage in sexual intercourse with partners who they honestly and reasonably believe are above the age of 16. Nonetheless, if the other elements of incest, namely that the other person was your lineal descendant, sister, half-sister, brother, half-brother or stepchild can be proven, then you may still be liable for a lesser offence under this section.
How does the court determine whether the other person was a relative?
This is a question for the trier of fact, in this instance the jury, who would consider the surrounding circumstances including any available supporting evidence to determine whether the other person was your lineal descendant, sister, half-sister, brother, half-brother or stepchild. Such documentation may include birth and marriage certificates, or other medical records. A person charged with an offence against this section shall, unless there is evidence to the contrary, be presumed to have known at the time of the alleged offence that he or she and the person with whom the offence is alleged to have been committed were related in the way charged. The onus is on the defendant to prove that they were unaware of any such relation.
This will depend on a number of factors including, for example:
You may accept that you committed incest, but:
Although there are many sentencing alternatives, it is likely that you will go to jail if you plead guilty or are found guilty. The maximum penalty for incest is 10 years imprisonment (if the other person is 16 or above), 15 years imprisonment if the other person is below the age of 16, or 20 years imprisonment if the other person is below the age of 10. However, these penalties are typically reserved for the most extreme offences.
The type of sentence you receive will ultimately depend on the facts of your case, your personal circumstances, criminal history, and a variety of other factors.
It is important that a criminal defence lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to persuade the court to reduce the length of the jail sentence.
If you have been charged with sexual intercourse with young persons under the age of 16 years, the prosecutor must prove that:
What is sexual intercourse?
Sexual intercourse covers a broad range of activities. This includes using a body part, such as a penis, fingers or tongue, or an object under your control to penetrate the vagina or anus of another person. Inserting your penis into the mouth of another person also constitutes sexual intercourse.
How does the court determine whether I acted intentionally?
For an act to have been intentional, you need to have made the decision to bring about an act of a particular kind or particular result. This is a question for the jury, who would consider all of the surrounding circumstances including what you did and said.
How does the court determine whether the child was under the age of 16?
This is a question for the trier of fact, in this instance the jury, who would consider all of the surrounding circumstances including any available supporting evidence to determine whether the child was under the age of 16 at the time of the alleged offence. Possible evidence might include birth certificates or any other relevant documentation.
What is an aggravated offence?
An offence will be one aggravated if occurring in a family violence context. This means the offender and victim need to be either domestic or former domestic partners, intimate or former intimate partners or relatives.
What if I am also a Young Person?
Section 55(5)(b) states that sexual intercourse with a young person under the age of 16 will not be unlawful if at the time of the alleged offence the person whom the offence is alleged to have been committed against was of or above the age of 10 years old, the defendant was not more than 2 years older than them, and the person consented to the sexual intercourse. This provision is aimed at protecting young couples who consensually engage in sexual intercourse before the age of consent or situations where one partner is slightly above the age of consent and one is not, such as a 15 and 16 year old.
What if I thought they were above the age of 16?
Section 55(5)(a) states that sexual intercourse with a young person under the age of 16 will not be unlawful if the defendant can establish that he or she believed on reasonable grounds that the person on whom the offence is alleged to have been committed was of or above the age of 16 years and that the person consented to the sexual intercourse. This provision is designed to protect those who engage in sexual intercourse with partners who they honestly and reasonable believe are above the age of 16.
This will depend on a number of factors, including whether you accept that you had sexual intercourse with the child under 16.
You may accept that you had sexual intercourse with the child under 16, but your criminal lawyer may be able to persuade the prosecution to accept a plea of guilty to a less serious charge such as attempting to have sexual intercourse with the child under 16 or act of indecency with a young person.
Alternatively, you may accept the charge but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the statement of facts for sentencing.
Q. If I plead guilty or am found guilty, will a conviction be recorded?
It is very likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors. In these circumstances, it is also incredibly likely that you will be registered as a child sex offender.
Q. Will I go to jail for sexual intercourse with a child under 16?
It is quite likely that you will go to jail. The maximum penalty for sexual intercourse with a child under 16 is 14 years or 18 years in aggravated circumstances.It is important that a criminal defence lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to reduce the length of the jail sentence.
Q. Does it matter whether the child consented?
No. Unless the child is less than 2 years younger than you and above the age of 10, consent will not be considered. Under section 68 of the Crimes Act 1900 (ACT) Children are presumed not to have the capacity to consent to conduct under this offence.
If you have been charged with sexual intercourse with young persons under the age of 10 years, the prosecutor must prove that:
What is sexual intercourse?
Sexual intercourse covers a broad range of activities. This includes using a body part, such as a penis, fingers or tongue, or an object under your control to penetrate the vagina or anus of another person. Inserting your penis into the mouth of another person also constitutes sexual intercourse.
How does the court determine whether I acted intentionally?
For an act to have been intentional, you need to have made the decision to bring about an act of a particular kind or particular result. This is a question for the jury, who would consider all of the surrounding circumstances including what you did and said.
How does the court determine whether the child was under the age of 10?
This is a question for the trier of fact, in this instance the jury, who would consider all of the surrounding circumstances including any available supporting evidence to determine whether the child was under the age of 10 at the time of the alleged offence. Possible evidence might include birth certificates or any other relevant medical documentation.
What is an aggravated offence?
An offence will be aggravated if occurring in a family violence context. This means the offender and victim need to be either domestic or former domestic partners, intimate or former intimate partners or relatives.
This will depend on a number of factors, including whether you accept that you had sexual intercourse with the child under 10.
You may accept that you had sexual intercourse with the child under 10, but your lawyer may be able to persuade the prosecution to accept a plea of guilty to a less serious charge such as attempting to have sexual intercourse with the child under 10 or act of indecency with a young person.
Alternatively, you may accept the charge but disagree with part or all of what police say happened. In these circumstances, your legal counsel may be able to negotiate with the prosecution to change the statement of facts for sentencing.
Q. If I plead guilty or am found guilty, will a conviction be recorded?
It is incredibly likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors. In these circumstances, it is also incredibly likely that you will be registered as a child sex offender.
Q. Will I go to jail for sexual intercourse with a child under 10?
It is highly likely that you will go to jail. The maximum penalty for sexual intercourse with a child under 10 is 17 years or 21 years in aggravated circumstances, however the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.It is important that a criminal defence lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to reduce the length of the jail sentence.
Q. Does it matter whether the child consented?
No. Consent will not be considered. Under section 68 of the Crimes Act 1900 (ACT) Children are presumed not to have the capacity to consent to conduct under this offence.
What is sexual intercourse?
Sexual intercourse covers a broad range of activities. Under section 50 of the Crimes Act 1900 (ACT), it is taken to include the penetration, to any extent, of the genitalia or anus of a person by any part of the body of another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law or penetration of these areas by an object under your control. This definition also includes fellatio (the introduction of any part of the penis of a person into the mouth of another person) or cunnilingus.
How does the court determine whether I acted intentionally?
For an act to have been intentional, you need to have made the decision to bring about an act of a particular kind or particular result. This is a question for the jury, who would consider all of the surrounding circumstances including what you did and said.
What constitutes a young person?
A young person, for the purposes of this provision, means a person who is at least 16 years old, but not yet an adult. Simply, this means a person between the ages of 16 and 18. This is a question for the trier of fact, in this instance the jury, who would consider all of the surrounding circumstances including any available supporting evidence to determine whether the alleged victim was a young person. Possible evidence might include birth certificates or any other relevant medical documentation.
What if I am also a Young Person?
Section 55(3)(b) states that sexual intercourse with a young person under special care will not be unlawful if at the time of the alleged offence, the defendant was not more than 2 years older than them, and the person consented to the sexual intercourse. This provision is aimed at protecting young couples who consensually engage in sexual intercourse. Intercourse will not be considered unlawful if the defendant was married to the young person at the time of the alleged offence.
What if I thought they were above the age of 16?
Sexual intercourse with a young person under special care will not be unlawful if the defendant can establish that they believed on reasonable grounds that the young person was at least 18 years old. This provision is designed to protect those who engage in sexual intercourse with partners who they honestly and reasonably believe are above the age of 18.
What constitutes special care?
There are a non-exhaustive list of circumstances where a young person will be deemed to be under special care. This includes specific categories such as teacher, legal guardian, sports coach, employers, or health service provider, as well as the broader category of ‘otherwise responsible for the care, supervision or control of the young person’. Whether the relationship between you and the young person will be deemed to be one of special care is ultimately a matter for the jury who will consider all of the surrounding circumstances and available evidence.
This will depend on a number of factors, including whether you accept that you had sexual intercourse with the young person or whether you accept that they were under your special care.
You may accept that you had sexual intercourse with a young person under your special care, but your defence lawyer may be able to persuade the prosecution to accept a plea of guilty to a less serious charge such as an act of indecency without consent.
Alternatively, you may accept the charge but disagree with part or all of what police say happened. In these circumstances, your Canberra criminal offence lawyer may be able to negotiate with the prosecution to change the statement of facts for sentencing.
Q. If I plead guilty or am found guilty, will a conviction be recorded?
It is incredibly likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors. In these circumstances, it is also incredibly likely that you will be registered as a child sex offender.
Q. Will I go to jail for sexual intercourse with a young person under special care?
It is likely that you will go to jail. The maximum penalty for this offence is 10 years imprisonment, although these sentences are typically reserved for the most extreme offences. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.It is important that a criminal defence lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to reduce the length of the jail sentence.
What constitutes a young person or child?
Subsection 12 outlines that young person, for the purposes of this provision means a person who is at least 16 years old, but not yet an adult. Simply, this means a person between the ages of 16 and 18. Alternatively, a child means any person who is under the age of 16. This is a question for the trier of fact, in this instance the jury, who would consider all of the surrounding circumstances including any available supporting evidence to determine whether the alleged victim was a young person. Possible evidence might include birth certificates or any other relevant documentation.
What if I am also a Young Person?
Subsection 12(b) states that the defence outlined in Section 55(5)(b) of the Crimes Act 1900 (ACT), which states that sexual intercourse with a young person will not be unlawful if at the time of the alleged offence, the defendant was not more than 2 years older than them is available in these circumstances. This provision is aimed at protecting young couples who consensually engage in sexual intercourse. Furthermore, under subsection 3(a), intercourse will not be considered unlawful if the defendant was married to the young person at the time of the alleged offence.
What if I thought they were above the age of 16?
Subsection 12(b) states that the defence outlined in Section 55(5)(a), which states that sexual intercourse with a young person will not be unlawful if at the time of the alleged offence, the defendant can establish that they believed on reasonable grounds that the young person was at least 18 years old, is available in these circumstances. This provision is designed to protect those who engage in a relationship with partners who they honestly and reasonable believe are above the age of 18.
What constitutes special care?
Subsection 2 provides a non-exhaustive list of circumstances where a young person will be deemed to be under special care. This includes specific categories such as teacher, legal guardian, sports coach, employers, or health service provider, as well as the broader category of ‘otherwise responsible for the care, supervision or control of the young person’. Whether the relationship between you and the young person will be deemed to be one of special care is ultimately a matter for the jury who will consider all of the surrounding circumstances and available evidence.
What is considered a relationship?
Subsection 2 establishes that a relationship for the purposes of this provision includes repeated contact, interaction, engagement or association, of a sexual nature or otherwise. Whether your association with the young person or child will be considered a relationship is ultimately a matter for the jury who will consider all of the surrounding circumstances, including what you said and did, as well as any other available evidence.
Can I be charged for this offence as well as others against the same victim?
An offender may be convicted for an offence against this provision and 1 or more sexual offences committed by the person against the same child or young person under the special care of the person during the alleged period of the relationship at the same time. However, the sentences for these offences cannot be served consecutively. A person cannot be convicted of an additional offence if they have already been convicted or acquitted of an offence constituted by 1 or more of the sexual acts alleged to be involved in the relationship previously or if the alleged act occurred during the period for which the person has already been convicted or acquitted of an offence against subsection (1) in relation to the child or young person.
What is a sexual act?
Subsection 12 defines a ‘sexual act’ as any act or attempt to commit an act that would constitute an offence against a sexual offence provision of the current iteration of the Crimes Act 1900 (ACT) in force at the time of the alleged offending. This encompasses a broad range of offences, ranging from acts of indecency to sexual intercourse without consent.
This will depend on a number of factors, including whether you accept that you engaged in relationship with a young person or child or whether you accept that any relationship involved 1 or more sexual acts.
You may accept that you committed the offence, but your criminal lawyer may be able to persuade the prosecution to accept a plea of guilty to a less serious charge such as sexual intercourse with a young person under special care.
Alternatively, you may accept the charge but disagree with part or all of what police say happened. In these circumstances, your defence lawyer may be able to negotiate with the prosecution to change the statement of facts for sentencing.
Q. If I plead guilty or am found guilty, will a conviction be recorded?
It is almost certain that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors. In these circumstances, it is also likely that you will be place on the child sex offenders register.
Q. Will I go to jail for sexual intercourse with a young person under special care?
It is very likely that you will go to jail. The maximum penalty for this offence is 25 years imprisonment, although these sentences are typically reserved for the most extreme offences. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.It is important that a criminal defence lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to reduce the length of the jail sentence.
If you have been charged with grooming the prosecutor must prove that:
How does the court determine whether I acted intentionally?
For an act to have been intentional, you need to have made the decision to bring about an act of a particular kind or particular result. This is a question for the jury, who would consider all of the surrounding circumstances including what you did and said.
What constitutes a young person?
A ‘young person’ means a person who is under the age of 16 years old. This is a question for the trier of fact, in this instance the jury, who would consider all of the surrounding circumstances including any available supporting evidence to determine whether the alleged victim was a young person. Possible evidence might include birth certificates or any other relevant documentation.
What is an act of sexual nature?
An act of a sexual nature is defined by subsection 7 as meaning sexual intercourse or an act of indecency. Sexual intercourse covers a broad range of activities. Under section 50 of the Crimes Act 1900 (ACT), it is taken to include the penetration, to any extent, of the genitalia or anus of a person by any part of the body of another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law or penetration of these areas by an object under your control.
This definition also includes fellatio (the introduction of any part of the penis of a person into the mouth of another person) or cunnilingus. There is no definition in the Crimes Act for an ‘act of indecency’. This term has been defined in common law as acts that would be deemed contrary to community standards of decency or would offend “the ordinary modesty of the average person”. Some examples include exposing yourself in public or sending unsolicited naked photos of yourself to another person.
How does the court determine if I encouraged, or my conduct influenced a young person?
Whether you encouraged a young person to take part in an act of a sexual nature, or you intended through your conduct with a young person that it would become more likely that the young person would commit or take part in, or watch someone else committing or taking part in, an act of a sexual nature is ultimately a question of fact for the magistrate or jury. The magistrate or jury will ultimately consider all of the surrounding circumstances, including what you did and said and assess the extent to which they are convinced that it satisfies the offence provision.
What is pornographic material?
Section 66(7) of the Crimes Act 1900 (ACT) defines pornographic material as material of a sexual nature that has been, or is likely to be, classified R 18+, RC, category 1 restricted or category 2 restricted or material that has been, or is likely to be, classified X 18+. In this context, the jury or magistrate will make a determination on the facts whether they are convinced that particular material should be considered pornography for the purposes of the provision.
What if I thought they were above the age of 16?
It is a defence to a prosecution for an offence against this section if the defendant proves that the defendant believed on reasonable grounds that the young person was at least 16 years old. However, it is not a defence to a prosecution for an offence against this section that the young person had consented to some or all of the defendant’s conduct or actions.
What is an aggravated offence?
An offence will be aggravated if occurring in a family violence context. This means the offender and victim need to be either domestic or former domestic partners, intimate or former intimate partners or relatives.
This will depend on a number of factors, including whether you accept that you groomed a young person.
You may accept the charge but disagree with part or all of what police say happened. In these circumstances, your criminal lawyer may be able to negotiate with the prosecution to change the statement of facts for sentencing.
Q. If I plead guilty or am found guilty, will a conviction be recorded?
It is likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors. In these circumstances, it is also likely that you will be placed on the child sex offenders register.
Q. Will I go to jail for possessing child exploitation material?
It is likely that you will go to jail. The maximum penalty for this offence varies between 7 and 15 years imprisonment. However, these sentences are typically reserved for the most extreme offences. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to reduce the length of the jail sentence.
If you have been charged with possessing child exploitation material, the prosecutor must prove that:
How does the court determine whether I acted intentionally?
For an act to have been intentional, you need to have made the decision to bring about an act of a particular kind or particular result. This is a question for the jury, who would consider all of the surrounding circumstances including what you did and said.
What is considered pornography?
Section 66(7) of the Crimes Act 1900 (ACT) defines pornographic material, and therefore pornography as material of a sexual nature that has been, or is likely to be, classified R 18+, RC, category 1 restricted or category 2 restricted or material that has been, or is likely to be, classified X 18+. In this context, the magistrate or jury will make a determination on the facts whether they are convinced beyond reasonable doubt that particular material should be considered pornography for the purposes of the provision.
How does the court determine whether I possessed the pornography?
Whether you possessed the pornography in question will ultimately be a matter of fact to be determined by the jury or magistrate. Typically, the court will look to the surrounding circumstances such as where the material was found. For example, the pornography may be discovered on a device or hard drive that is in your possession in the sense that it is primarily owned and accessed by you.
Does it matter whether I knew the pornography was child exploitation material?
It is a defence to a prosecution for this offence if the defendant proves that they had no reasonable grounds for suspecting that the pornography concerned was child exploitation material.
Section 64(5) of the Crimes Act 1900 (ACT) defines child exploitation material as anything that represents the sexual parts of a child, a child engaged in an activity of a sexual nature, or someone else engaged in an activity of a sexual nature in the presence of a child substantially for the sexual arousal or sexual gratification of someone other than the child. In this context, represents is taken to mean anything that depicts or otherwise represents on or in a film, photograph, drawing, audiotape, videotape, computer game, the internet or anything else.
What is an aggravated offence?
An offence will be aggravated if occurring in a family violence context. This means the offender and victim need to be either domestic or former domestic partners, intimate or former intimate partners or relatives.
This will depend on a number of factors, including whether you accept that possessed child exploitation material.
You may accept the charge but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the statement of facts for sentencing.
Q. If I plead guilty or am found guilty, will a conviction be recorded?
It is quite likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors. In these circumstances, it is also incredibly likely that you will be registered as a child sex offender.
Q. Will I go to jail for possessing child exploitation material?
It is possible that you will go to jail. The maximum penalty for this offence is 700 penalty units, imprisonment for 7 years or both in regular circumstances and 900 penalty units, imprisonment for 9 years or both in aggravated circumstances. However, these sentences are typically reserved for the most extreme offences. It is important that a criminal defence lawyer properly prepares and presents your case to minimise the risk of you going to gaol, or to reduce the length of the gaol sentence.
If you have been charged with producing child exploitation material, the prosecutor must prove that:
How does the court determine whether I acted intentionally?
For an act to have been intentional, you need to have made the decision to bring about an act of a particular kind or particular result. This is a question for the jury, who would consider all of the surrounding circumstances including what you did and said.
Does it matter whether I knew the child’s age?
Absolute liability applies with regards to the age of the child. This means that the prosecution does not need to prove mental fault or knowledge for this element of the offence. Therefore, it does not matter whether you knew that the child was either below the age of 12 or between the ages of 12 and 18. Instead, the prosecution must merely prove that they were that age at the time of the alleged offending. This will ultimately be dependent on supporting evidence such as birth certificates and any other relevant medical documentation.
How does the court determine whether I used, offered, or procured a child?
Whether in the process of producing child exploitation material you used, offered, or procured a child is ultimately a question for the trier of fact, in this instance the jury. The jury will consider all of the surrounding circumstances including any available supporting evidence to make this determination including what you said and did to the young person. Potential evidence may include electronic communications or witness testimony.
What is child exploitation material?
Child exploitation material is defined as anything that represents the sexual parts of a child, a child engaged in an activity of a sexual nature, or someone else engaged in an activity of a sexual nature in the presence of a child substantially for the sexual arousal or sexual gratification of someone other than the child. In this context, represents is taken to mean anything that depicts or otherwise represents on or in a film, photograph, drawing, audiotape, videotape, computer game, the internet or anything else.
What is pornographic performance?
Pornographic performance means a performance by a child engaged in an activity of a sexual nature or a performance by someone else engaged in an activity of a sexual nature in the presence of a child substantially for the sexual arousal or sexual gratification of someone other than the child.
What is an aggravated offence?
An offence will be aggravated if occurring in a family violence context. This means the offender and victim need to be either domestic or former domestic partners, intimate or former intimate partners or relatives.
This will depend on a number of factors, including whether you accept that you used, offered, or procured a child for the purposes of producing child exploitation material or for a pornographic performance or that the person depicted was a child.
You may accept the charge but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the police facts.
Q. If I plead guilty or am found guilty, will a conviction be recorded?
It is very likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors. In these circumstances, it is also likely that you will be place on the child sex offenders register.
Q. Will I go to jail for producing child exploitation material?
It is likely that you will go to jail. The maximum penalty for this offence when the child is under 12 years old is 1 500 penalty units, imprisonment for 15 years or both in regular circumstances and 1 900 penalty units, imprisonment for 19 years or both in aggravated circumstances. The maximum penalty for this offence when the child is 12 years old or older is 1 000 penalty units, imprisonment for 10 years or both in regular circumstances and 1 300 penalty units, imprisonment for 13 years or both in aggravated circumstances. However, these sentences are typically reserved for the most extreme offences.
It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to reduce the length of the jail sentence.
If you have been charged with failing to report child sex offences, the prosecutor must prove that:
What is a sexual offence?
A sexual offence means any offence against the sexual offences part of the Crimes Act 1900 (ACT) or any other provision prescribed by regulation. This also includes an offence against a sexual offence provision of the Act previously in force at the time of the alleged offending.
What is a Reasonable belief?
In determining whether you held a reasonable belief, the Magistrate will consider objectively whether an ordinary and reasonable person placed in the circumstances, with all of the information available to you, would have formed the belief that a sexual offence has been committed against a child.
How soon is ‘as soon as practicable’?
Whether you had a practicable opportunity to disclose the information you had received to a police officer is ultimately a question for the trier of fact, in this instance the magistrate, who would consider all of the surrounding circumstances including what you said and did after receiving the relevant information.
Who is considered a child?
A child is defined in the Crimes Act 1900 (ACT) as a person under the age of 16 years. This is a question for the trier of fact, in this instance the Magistrate, who would consider all of the surrounding circumstances including any available supporting evidence to determine whether the alleged victim was a child. Possible evidence might include birth certificates or any other relevant medical documentation.
Are there any possible exceptions?
This provision outlines a variety of circumstances where a person is excluded from this obligation to report child sex offences. A person need not report the offences when the alleged victim is no longer a child and they reasonably believe that the alleged victim does not want a police officer to be told. You are also not obliged to report this information if you reasonably believe that giving the information to a police officer would endanger the safety of a person other than a person reasonably believed to have committed the sexual offence or you reasonably believe that the police already have the information. Finally, you are not obliged to report this information if you reasonably believe that somebody else has reported it, the information is subject to client legal privilege, the information is generally available in the public domain, or you have another reasonable excuse. Under subsections 3, these exceptions do not apply to a person who is or was a member of the clergy of a church or religious denomination and received the information during religious confessions. Subsection 5 also states that providing information related to child sexual offences to police does not breach confidence, professional etiquette or ethics, or a rule of professional conduct (except client legal privilege).
This will depend on a number of factors, including whether you accept that you failed to report child sexual offences.
You may accept the charge but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the statement of facts for sentencing.
Q. If I plead guilty or am found guilty, will a conviction be recorded?
It is possible that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
Q. Will I go to jail for possessing child exploitation material?
It is possible that you may go to jail. The maximum penalty for this offence is 2 years imprisonment. However, these sentences are typically reserved for the most extreme offences. It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to reduce the length of the jail sentence.
Hugo Law Group is a law firm that is focused on protecting and defending your rights. Drawing on decades of experience, our team of criminal lawyers will guide you through the legal process, providing comprehensive, honest and strategic advice – qualities that give us our renowned reputation.
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Seeking comprehensive and practical advice at an early stage will best ensure your rights and interests are protected. Our lawyers will properly prepare and present your case to assist you in getting the best possible outcome.
At Hugo Law Group, we will clearly explain what your rights and obligations are so that you can make informed decisions about how to deal with the police and the court process.
Even if you have not yet been charged with a criminal offence, you should seek advice from a lawyer at an early stage to ensure that your rights and interests are protected.
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