Sexual Offences | Perth, WA

Sexual Intercourse without Consent

  1. Sexual intercourse without consent is an offence under section 54 of the Crimes Act 1900 (ACT).
  2. This offence is strictly indictable meaning it must be finalised in the Supreme Court, but still commences in the Magistrates Court.
  3. The maximum penalty for this offence is 12 years imprisonment. An aggravated offence committed in family violence circumstances under this section carries a maximum penalty of 15 years imprisonment. If this offence is committed in the company of another person, the maximum penalty is 14 years imprisonment. If an aggravated offence under this section is committed in the company of another person, the maximum penalty is imprisonment for 18 years.
  4. If you plead guilty, or are found guilty, a number of different sentences can be imposed. It is very likely that a conviction will be recorded and likely you will be sentenced to a term of imprisonment.

If you have been charged with sexual intercourse without consent, the prosecutor must prove that:

  1. You had sexual intercourse with another person
  2. That person did not consent or did not have the capacity to consent
  3. You knew or were reckless that they did not consent

For an offence under subsection 3, the prosecutor must also prove that:

  1. You acted in company with another person

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:

  • they are under 16 years of age
  • they are asleep or unconscious
  • they have a cognitive incapacity 
  • they only consented because they were threatened or forced to do so 
  • they are unlawfully detained
  • they are so affected by alcohol or a drug so as to be incapable of consenting
  • they consent because they believe you are someone else
  • they consent because they believe they are married to you
  • they consent because they believe the sexual intercourse is for a medical or hygienic purpose.

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:

  • Took any steps to determine whether the other person was consenting (and, if so, what these steps were)
  • Had reasonable grounds to believe that the other person was consenting.
  • Whether on the facts, the victim, through their words or conduct expressed explicitly or implicitly that they did not consent.

What does recklessness mean?

In this context, you are reckless if either:

  • you had sexual intercourse not caring about whether the complainant was consenting or not, or
  • you were aware that the complainant might not have been consenting and continued having sexual intercourse regardless.

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.

Q. If I plead guilty or am found guilty, will a conviction be recorded?

A. 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.

Q. Should I plead guilty or not guilty to sexual penetration without consent?

A. This will depend on a number of factors including, for example:

  • whether you accept that you penetrated the complainant
  • whether the penetration was sexual
  • whether you the complainant consented
  • whether you were acting under an honest and reasonable but mistake belief that the complainant consented

You may accept that you sexually penetrated the complainant without consent but:

  • your lawyer may be able to persuade the prosecutor to accept a plea of guilty to a less serious charge such as indecent assault.
  • you may disagree with part of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the statement of material facts.

Q. Am I going to go to gaol if I plead guilty or am found guilty of sexual penetration without consent?

A. Although there are many sentencing alternatives, it is very likely that you will go to gaol if you plead guilty or are found guilty.

The maximum penalty for sexual penetration without consent is 14 years imprisonment, 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 gaol, or to persuade the court to reduce the length of the gaol sentence.

A skilled criminal defence lawyer will meticulously prepare and present your case, leveraging your personal circumstances, legal expertise, and advocacy to minimise the risk of incarceration in the face of charges like sexual penetration without consent.

Indecent Assault

  • Indecent assault is an offence under section 323 of the Criminal Code 1913 (WA). This offence is a Schedule II offence.
  • The offence can be dealt with in either the Magistrates Court or the District Court. The maximum penalty is 5 years imprisonment, however if dealt with in the Magistrates Court the maximum penalty is 2 years imprisonment and a $24,000 fine.
  • If you plead guilty, or are found guilty, a number of different sentences can be imposed. It is likely that a criminal conviction will be recorded.

If you have been charged with indecent assault, the prosecutor must prove beyond a reasonable doubt that:

  1. You were the accused or an accomplice.
  2. That you assaulted the complainant.
  3. That the assault was indecent.
  4. That the assault was unlawful.
  5. The assault was not an accident.
  6. That you did not have an honest and reasonable but mistaken belief that the complainant consented.

A proficient lawyer strategically dissects the prosecution’s case and diligently defends your innocence or circumstance, scrutinising every element of the alleged offense, including the presence of consent, to ensure your rights are safeguarded and the burden of proof is rigorously challenged in cases of indecent assault.

What is defined as an ‘assault’?

A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.

What is defined as ‘consent’ for this act?

Consent means consent that is freely and voluntarily given. Consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means.

Failure by the complainant to offer physical resistance does not of itself constitute consent to the act.

What does indecent mean?

Something is indecent if it is unbecoming or offensive to common propriety. The conduct must also have a sexual character.

The test of indecency involves assessing whether the conduct in question in the context in which it occurred is offensive or unbecoming to common propriety according to the standards of ordinary members of the community

Q. If I plead guilty or am found guilty, will a conviction be recorded?

A. 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.

Q. Should I plead guilty or not guilty to indecent assault?

A. This will depend on a number of factors including, for example:

  • whether you accept that you assaulted the complainant
  • whether you accept that the assault was indecent
  • whether you the assault was unlawful and a defence of accident or honest and reasonable mistaken belief as to consent arises.

You may accept that you committed an offence but:

  • your lawyer may be able to persuade the prosecutor to accept a plea of guilty to a different charge such as common assault.
  • you may disagree with part of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the statement of material facts.

Q. Am I going to go to gaol if I plead guilty or am found guilty of indecent assault?

A. Although there are many sentencing alternatives, it is possible that you will go to gaol if you plead guilty or are found guilty.

The maximum penalty for indecent assault is 5 years imprisonment, 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 gaol, or to persuade the court to reduce the length of the gaol sentence.

Indecent Act

  • Indecent Act is an offence under section 203 of the Criminal Code 1913 (WA).
  • The offence can be dealt with in either the Magistrates Court or the District Court. The maximum penalty is 2 years imprisonment, however if dealt with in the Magistrates Court the maximum penalty is 9 months imprisonment and a fine of $9,000.00.
  • If you plead guilty, or are found guilty, a number of different sentences can be imposed. It is likely that a criminal conviction will be recorded.

If you have been charged with indecent act, the prosecutor must prove beyond a reasonable doubt that:

  1. You are the accused or you are an accomplice
  2. That you did an indecent act
  3. That you did such an act in a public place or in the sight of any person who is in a public place/police station or lock up.
  4. The act was not an accident or it was not for the public benefit.

Your lawyer’s role against the prosecutor will involve rigorously scrutinising the evidence presented, challenging the prosecution’s case by examining the elements that must be proven beyond a reasonable doubt, and advocating for the best possible outcome.

What is a ‘public place’?

A ‘public place’ is defined in s 1 of the Code in the following terms:

  1.  place to which the public, or any section of the public, has or is permitted to have access, whether on payment or otherwise; and
  2. a privately owned place to which the public has access with the express or implied approval of, or without interference from, the owner, occupier or person who has the control or management of the place; and
  3. a school, university or other place of education, other than a part of it to which neither students nor the public usually have access.

What does ‘indecent’ mean?

An indecent act is one that a right-minded person would consider contrary to the common standards of decency. It involves conduct that is unbecoming or offensive to common propriety judged by ordinary contemporary standards of decency within the community.

Q. If I plead guilty or am found guilty, will a conviction be recorded?

A. 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.

Q. Should I plead guilty or not guilty to indecent assault?

A. This will depend on a number of factors including, for example:

  • whether you accept that you did an act
  • whether the act was indecent
  • whether the act was in a public place
  • whether the act occurred by accident or for the public benefit.

You may accept that you committed an offence but:

  • you may disagree with part of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the statement of material facts.

Q. Am I going to go to gaol if I plead guilty or am found guilty of indecent assault?

A.Although there are many sentencing alternatives, it is possible that you will go to gaol if you plead guilty or are found guilty.

The maximum penalty for indecent assault is 2 years imprisonment, however the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.

Sexual Penetration of a Child Under 13

  • Sexual penetration of a child under is an offence under section 320(2) of the Criminal Code 1913 (WA). This offence is a Schedule II offence.
  • This offence is a strictly indictable offence. It must be finalised in the District Court, but still commences in the Magistrates Court. The maximum penalty is 20 years imprisonment.
  • Although there are many sentencing alternatives, it is very likely that you will go to gaol if you plead guilty or are found guilty.

If you have been charged with sexual penetration of a child, the prosecutor must prove beyond a reasonable doubt that:

  1. You are the person who is alleged to have committed the offence.
  2. You sexually penetrated the complainant.
  3. The complainant was a child under the age of 13 years old.

What is penetration?

The penetration of any human body part or object into the complainant’s vagina or anus. It also includes acts of cunnilingus and fellatio. The prosecution need not prove that ejaculation occurred for there to have been sexual penetration. Nor it is necessary for the prosecution to prove that the act was done for sexual gratification.

Q. If I plead guilty or am found guilty, will a conviction be recorded?

A. 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.

Q. Should I plead guilty to a charge of sexual penetration of a child under 13?

A. This will depend on a number of factors including, for example:

  • whether you accept that you are the person alleged to have committed the offence
  • whether you sexually penetrated the complainant
  • whether the child was under the age of 13 years old

You may accept that you committed an offence but:

  • your lawyer may be able to persuade the prosecutor to accept a plea of guilty to a less serious charge such as indecent dealing with a child.
  • you may disagree with part of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the statement of material facts.

Q. Am I going to go to gaol if I plead guilty to or am found guilty of sexual penetration of a child under 13?

A. Although there are many sentencing alternatives, it is very likely that you will go to gaol if you plead guilty or are found guilty.

The maximum penalty for sexual penetration of a child is 20 years imprisonment, 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 gaol, or to persuade the court to reduce the length of the gaol sentence.

Sexual Penetration of a Child Over 13 Under 16

  • Sexual penetration of a child over 13 under 16 is an offence under section 321(2) of the Criminal Code 1913 (WA). This offence is a Schedule II offence.
  • This offence is a strictly indictable offence. It must be finalised in the District Court, but still commences in the Magistrates Court. The maximum penalty is 14 years imprisonment.
  • Although there are many sentencing alternatives, it is very likely that you will go to gaol if you plead guilty or are found guilty.

If you have been charged with sexual penetration of a child, the prosecutor must prove beyond a reasonable doubt that:

  1. You are the person who is alleged to have committed the offence.
  2. You sexually penetrated the complainant.
  3. The complainant was a child over the age 13 and under the age of 16 years old.

What is penetration?

The penetration of any human body part or object into the complainant’s vagina or anus. It also includes acts of cunnilingus and fellatio. The prosecution need not prove that ejaculation occurred for there to have been a sexual penetration. Nor it is necessary for the prosecution to prove that the act was done for sexual gratification.

Q. If I plead guilty or am found guilty, will a conviction be recorded?

A. 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.

Q. Should I plead guilty to sexual penetration of a child over 13 and under 16 ?

A. This will depend on a number of factors including, for example:

  • whether you accept that you are the person alleged to have committed the offence
  • whether you sexually penetrated the complainant
  • whether the child was over the age of 13 and under the age of 16 years old

You may accept that you committed an offence but:

  • your lawyer may be able to persuade the prosecutor to accept a plea of guilty to a less serious charge such as indecent dealing with a child.
  • you may disagree with part of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the statement of material facts.

Q. Am I going to go to gaol if I plead guilty to or am found guilty of sexual penetration of a child who is over 13 and under 16?

A. Although there are many sentencing alternatives, it is very likely that you will go to gaol if you plead guilty or are found guilty.

The maximum penalty for sexual penetration of a child is 14 years imprisonment, 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 gaol, or to persuade the court to reduce the length of the gaol sentence.

Indecent Dealing with a Child Under 13

  • Indecent dealing with a child under 13 is an offence under section s 320(4) of the Criminal Code 1913 (WA). This offence is a Schedule II offence.
  • This offence is a strictly indictable offence. It must be finalised in the District Court, but still commences in the Magistrates Court. The maximum penalty is 10 years imprisonment.
  • If you plead guilty, or are found guilty, a number of different sentences can be imposed and a criminal conviction will be recorded.

If you have been charged with indecently dealing with a child under 13 years, the prosecutor must prove beyond a reasonable doubt that:

  1. You are the person who is alleged to have committed the offence.
  2. That you dealt with the complainant.
  3. That the dealing was indecent.
  4. That the complainant was a child under the age of 13.

Your lawyer’s role is pivotal in meticulously examining the evidence presented by the prosecution, challenging the validity of the allegations, safeguarding your rights, and advocating for a fair trial while exploring all legal avenues to mount a robust defense strategy.

What does ‘deal with’ mean?

“Deals with” means:

  1.  procuring or permitting the child or incapable person to deal indecently with the person;
  2. procuring the child or incapable person to deal indecently with another person; or
  3. committing an indecent act in the presence of the child or incapable person.

What does ‘indecent’ mean?

An indecent act is one that a right-minded person would consider contrary to the common standards of decency. It involves conduct that is unbecoming or offensive to common propriety judged by ordinary contemporary standards of decency within the community.

Dealing must be of a sexual character. Indecency must always be judged in the light of time, place and circumstances.

Q. If I plead guilty or am found guilty, will a conviction be recorded?

A. 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. Should I plead guilty to indecent dealing with a child under 13?

A. This will depend on a number of factors including, for example:

  • whether you accept that you were the person alleged to have committed the offence.
  • whether you dealt with the complainant.
  • whether the dealing was indecent.
  • whether the child was under the age of 13.

You may accept that you committed an offence but:

  • you may disagree with part of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the statement of material facts.

Q. Am I going to go to gaol if I plead guilty to or am found guilty of indecent dealing with a child under 13?

A. Although there are many sentencing alternatives, it is very likely that you will go to gaol if you plead guilty or are found guilty.

The maximum penalty for indecently dealing with a child under the age of 13 is 10 years imprisonment, 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 gaol, or to persuade the court to reduce the length of the gaol sentence.

Indecent Dealing with a Child Over 13 Under 16

  • Indecent dealing with a child under 13 is an offence under section s 321(4) of the Criminal Code 1913 (WA). This offence is a Schedule II offence.
  • This offence is a strictly indictable offence. It must be finalised in the District Court, but still commences in the Magistrates Court. The maximum penalty is 7 years imprisonment.
  • If you plead guilty, or are found guilty, a number of different sentences can be imposed and a criminal conviction will be recorded.

If you have been charged with indecently dealing with a child over 13 years and under 16 years, the prosecutor must prove beyond a reasonable doubt that:

  1. You are the person who is alleged to have committed the offence.
  2. That you dealt with the complainant.
  3. That the dealing was indecent.
  4. That the complainant was a child over 13 years and under 16 years.

Engaging a quality lawyer is crucial when facing charges of indecently dealing with a child over 13 years and under 16 years, as they play a pivotal role in meticulously scrutinising the prosecution’s evidence, crafting a robust defense strategy, and advocating for the accused’s rights and interests to ensure a fair trial and the best possible outcome.

What does ‘deal with’ mean?

‘Deals with’ means:

  1. procuring or permitting the child or incapable person to deal indecently with the person;
  2. procuring the child or incapable person to deal indecently with another person; or
  3. committing an indecent act in the presence of the child or incapable person.

What does ‘indecent’ mean?

An indecent act is one that a right-minded person would consider contrary to the common standards of decency. It involves conduct that is unbecoming or offensive to common propriety judged by ordinary contemporary standards of decency within the community.

Dealing must be of a sexual character. Indecency must always be judged in the light of time, place and circumstances.

Q. If I plead guilty or am found guilty, will a conviction be recorded?

A. 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.

Q. Should I plead guilty to indecent dealing with a child over 13 under 16 ?

A. This will depend on a number of factors including, for example:

  • whether you accept that you were the person alleged to have committed the offence.
  • whether you dealt with the complainant.
  • whether the dealing was indecent.
  • whether the child was over 13 years and under 16 years.

You may accept that you committed an offence but:

  • you may disagree with part of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the statement of material facts.

Q. Am I going to go to gaol if I plead guilty to or am found guilty of indecent dealing with a child over 13 under 16?

A. Although there are many sentencing alternatives, it is very likely that you will go to gaol if you plead guilty or are found guilty.

The maximum penalty for indecently dealing with a child over 13 years and under 16 years is 7 years imprisonment, 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 gaol, or to persuade the court to reduce the length of the gaol sentence.

Possession of Child Exploitation Material

  • Possession of child exploitation material is an offence under section 220 of the Criminal Code 1913 (WA). This offence is a Schedule II offence.
  • This offence is a strictly indictable offence. It must be finalised in the District Court, but still commences in the Magistrates Court. The maximum penalty is 7 years imprisonment.
  • Although there are many sentencing alternatives, it is very likely that you will go to gaol if you plead guilty or are found guilty.

If you have been charged with possession of child exploitation material, the prosecutor must prove beyond a reasonable doubt that:

  1. You are the person who is alleged to have committed the offence
  2. The you possessed material
  3. That the material was child pornography/child exploitation material

What is the definition of a “child” for this offence?

A ‘child’ is a person under 16 years of age

What is the definition of a “child exploitation material” for this offence?

“Child exploitation material” means:

  1. Child pornography – a child engaging in sexual activity or in a sexual context
  2. material that, in a way likely to offend a reasonable person, describes, depicts or represents a person, or part of a person, who is, or appears to be, a child
    1. in an offensive or demeaning context; or
    2. being subjected to abuse, cruelty or torture (whether or not in a sexual context).

What does it mean by ‘possession’?

Possession in its ordinary meaning comprehends some degree of knowledge (such as knowledge of the actual or likely existence of the relevant matter)

So to prove that a person ‘possesses’ child pornography, some degree of knowledge has to be proved.

Q. If I plead guilty or am found guilty, will a conviction be recorded?

A. 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 navigating the likelihood of a conviction and the complexities of sentencing, securing the expertise of a reputable lawyer service can provide invaluable support, guidance, and representation tailored to your specific legal needs and circumstances.

Should I plead guilty to possession of child exploitation material?

A. This will depend on a number of factors including, for example:

  • whether you accept that you possessed material
  • whether that material was child exploitation material
  • whether you had actual knowledge or had knowledge of a likely existence there was child exploitation material
  • whether the material come into you possession solicited and whether you took reasonable steps to get rid of it

You may accept that you committed an offence but:

  • you may disagree with part of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the statement of material facts.

Q. Am I going to go to gaol if I plead guilty to or am found guilty of possession of child exploitation material?

A. Although there are many sentencing alternatives, it is very likely that you will go to gaol if you plead guilty or are found guilty.

The maximum penalty for possession of child exploitation material is 7 years imprisonment, 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 gaol, or to persuade the court to reduce the length of the gaol sentence.

Using electronic communication to procure or expose indecent matter to child under 16

  • Using electronic communication to procure or expose indecent matter to child under 16 is an offence under section 204B(2) of the Criminal Code 1913 (WA). This offence is a Schedule II offence.
  • This offence is a strictly indictable offence. It must be finalised in the District Court, but still commences in the Magistrates Court. The maximum penalty is 5 years imprisonment.
  • If you plead guilty, or are found guilty, a number of different sentences can be imposed. It is likely that a criminal conviction will be recorded.
  • A good lawyer can provide invaluable legal advice, strategic counsel, and representation tailored to your case, helping navigate the complexities of the legal system, safeguarding your rights, and working towards the best possible outcome given the circumstances.

If you have been charged with using electronic communication to procure or expose indecent matter to child under 16, the prosecutor must prove beyond a reasonable doubt that:

  1. You are the person who is alleged to have committed the offence.
  2. You are an adult
  3. You used an electronic communication
  4. You used the electronic communication with the intent to procure a person to engage in sexual activity / to expose a person to any indecent matter
  5. That you the person was under the age of 16 or that you believed the person to be under the age of 16

How is ‘intention’ proved?

Intention may be deduced from the circumstances, and from the conduct of the accused before, at the time of, or after he did the specific act

How does ‘procure’ mean?

‘Procure’ means to knowingly entice or recruit for the purpose of sexual exploitation

How does ‘belief under the age of 16’ mean?

It does not matter that the victim is a fictitious person represented to the accused person as a real person.

What is ‘sexual activity’?

Engaging in ‘sexual activity’ means:

  1. allowing a sexual act to be done to the person’s body;
  2. doing a sexual act to the person’s own body or the body of another person; or
  3. otherwise engaging in an act of an indecent nature.

What does ‘electronic communication’ mean?

‘Electronic communication’ means:

  1. communication of information in the form of data, text or images by means of guided or unguided electromagnetic energy, or both; or
  2. communication of information in the form of sound by means of guided or unguided electromagnetic energy, or both, where the sound is processed at its destination by an automated voice recognition system

Q. If I plead guilty or am found guilty, will a conviction be recorded?

A. 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.

Q. Should I plead guilty to using electronic communication to procure or expose indecent matter to child under 16?

A. This will depend on a number of factors including, for example:

  • whether you accept that you, as an adult, used electronic communication
  • whether you used the electronic communication with an intent to procure a person to engage in sexual activity or expose a person to any indecent matter
  • whether you accept that the person was under the age of 16 or believed them to be under 16
  • whether you believed on reasonable grounds that the person was of or over the age of 16

You may accept that you committed an offence but:

  • you may disagree with part of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the statement of material facts.

Q. Am I going to go to gaol if I plead guilty to or am found guilty of using electronic communication to procure or expose indecent matter to child under 16?

A. Although there are many sentencing alternatives, it is possible that you will go to gaol if you plead guilty or are found guilty.

The maximum penalty for using electronic communication to procure or expose indecent matter to child under 16  is 5 years imprisonment, 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 gaol.

Using electronic communication to procure or expose indecent matter to child under 13

  • Using electronic communication to procure or expose indecent matter to child under 13 is an offence under section 204B(3) of the Criminal Code 1913 (WA). This offence is a Schedule II offence.
  • This offence is a strictly indictable offence. It must be finalised in the District Court, but still commences in the Magistrates Court. The maximum penalty is 10 years imprisonment.
  • If you plead guilty, or are found guilty, a number of different sentences can be imposed. It is likely that a criminal conviction will be recorded.

If you have been charged with using electronic communication to procure or expose indecent matter to child under 13, the prosecutor must prove beyond a reasonable doubt that:

  1. You are the person who is alleged to have committed the offence
  2. You are an adult
  3. You used an electronic communication
  4. You used the electronic communication with the intent to procure a person to engage in sexual activity / to expose a person to any indecent matter
  5. That you the person was under the age of 13 or that you believed the person to be under the age of 13

How is ‘intention’ proved?

Intention may be deduced from the circumstances, and from the conduct of the accused before, at the time of, or after he did the specific act

What does ‘procure’ mean?

To knowingly entice or recruit for the purpose of sexual exploitation

What does it mean by ‘belief under the age of 13’?

It does not matter that the victim is a fictitious person represented to the accused person as a real person.

What is the definition of ‘sexual activity’?

“Sexual activity” means:

  1. allowing a sexual act to be done to the person’s body;
  2. doing a sexual act to the person’s own body or the body of another person; or
  3. otherwise engaging in an act of an indecent nature.

What is ‘electronic communication’?

“Electronic communication” means:

  1. communication of information in the form of data, text or images by means of guided or unguided electromagnetic energy, or both; or
  2. communication of information in the form of sound by means of guided or unguided electromagnetic energy, or both, where the sound is processed at its destination by an automated voice recognition system.

Q. If I plead guilty or am found guilty, will a conviction be recorded?

A. 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.

Q. Should I plead guilty to a charge of using electronic communication to procure or expose indecent matter to child under 13?

A. This will depend on a number of factors including, for example:

  • whether you accept that you, as an adult, used electronic communication
  • whether you used the electronic communication with an intent to procure a person to engage in sexual activity or expose a person to any indecent matter
  • whether you accept that the person was under the age of 16 or believed them to be under 13
  • whether you believed on reasonable grounds that the person was of or over the age of 13

You may accept that you committed an offence but:

  • you may disagree with part of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the statement of material facts.

Q. Am I going to go to gaol if I plead guilty to or am found guilty of 

A. Although there are many sentencing alternatives, it is possible that you will go to gaol if you plead guilty or are found guilty.

The maximum penalty for using electronic communication to procure or expose indecent matter to child under 13 is 10 years imprisonment, 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 gaol.

Distribution of Intimate Images

  • Distribution of Intimate Images is an offence under section 221BD of the Criminal Code 1913 (WA).
  • The offence can be dealt with in either the Magistrates Court or the District Court. The maximum penalty is 3 years imprisonment, however if dealt with in the Magistrates Court the maximum penalty is 18 months imprisonment and a fine of $18,000.00.
  • If you plead guilty, or are found guilty, a number of different sentences can be imposed. It is likely that a criminal conviction will be recorded.

If you have been charged with distribution of Intimate Images, the prosecutor must prove beyond a reasonable doubt that:

  1. You are the person who is alleged to have committed the offence.
  2. You distributed an image
  3. The image that you distribute was an intimate image
  4. The intimate image was of another person
  5. The other person did not consent to the distribution

Your lawyer will explore all legal avenues for defence, and work towards achieving the most favourable outcome possible, whether through challenging the evidence, negotiating plea deals, or presenting mitigating factors to the court.

What does ‘intimate images’ mean?

‘Intimate images’ means a still or moving image that shows, in circumstance where the person would reasonably expect privacy:

  1. The persons genital or anal area (bare or covered by underwear)
  2. The breasts of a person (bare or covered by underwear)
  3. The person engaging in a private act
  4. Any image created or altered to show any of the above

What does ‘consent’ mean for this charge?

‘Consent’ means a consent freely and voluntarily given. Consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means. Consent to distribute on a previous occasion is not to be regarded to consenting on another occasion. Consent to distribution in a particular way is not to be regarded as consent to distribute it another way. A person under the age of 16 years of age is incapable of consenting.

What does ‘distribute’ mean for this charge?

‘Distribute’ means:

  • Communicating, exhibiting, selling, sending, supplying, offering or transmitting the image to a person other than themselves or the person in the image
  • Making the image available by electronic or other means
  • Entering into an agreement to do any of the above.

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.

Should I plead guilty to distribution of intimate images?

This will depend on a number of factors including, for example:

  • whether you accept that you distributed an image
  • whether you accept that the image was an intimate image
  • whether the person consented to the intimate images distribution
  • whether the distribution could be considered acceptable by a reasonable person

You may accept that you committed an offence but:

  • you may disagree with part of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the statement of material facts.

Am I going to go to gaol if I plead guilty to or am found guilty of distribution of intimate images?

Although there are many sentencing alternatives, it is possible that you will go to gaol if you plead guilty or are found guilty.

The maximum penalty for distribution of an intimate image is 3 years imprisonment, 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 gaol.

Why Choose Hugo Law Group to Defend You

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.

Whether you want to plead not guilty, you are looking to secure the best possible sentence, or a loved one wants to apply for bail, it is essential to have an experienced team of criminal defence lawyers in your corner.

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.

Contact

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.

Hugo Law Group is the market leader in criminal defence law, providing exceptional representation to people facing serious criminal charges.

As leaders in criminal defence, we know that every story has two sides. We defend yours.

Get in contact with us today or feel free to call us at 02 9696 1361 (Sydney), 02 5104 9640 (Canberra), or 08 6255 6909 (Perth) and find out how we can help you.