Any sexual activity between a child under 16 and an adult is an offence.
Queensland has also implemented additional charges aimed at protecting children. These are the crimes of using the internet to procure a child and grooming.
These offences prosecute activity leading to or facilitating sexual activity involving a child.
In 2020, the Queensland Parliament brought in a new “grooming” offence. Grooming refers to the conduct of an adult attempting to facilitate or expose a child to a sexual act.
It is a distinct offence under section 218B of the Criminal Code Act. The Act states that an adult commits a crime:
“who engages in conduct in relation to a child, or a person who has care of a child, with intent to—
(a) facilitate the procurement of the child to engage in a sexual act, either in Queensland or elsewhere; or
(b) expose, without legitimate reason, the child to any indecent matter, either in Queensland or elsewhere;“
Section 218B Queensland Criminal Code Act 1899
A child is taken to have engaged in a sexual act if the child:
This is not limited to acts involving physical contact.
Under section 218A of the Criminal Code Act:
“Any adult who uses electronic communication with intent to procure a person under the age of 16 years, or a person the adult believes is under the age of 16 years, to engage in a sexual act, either in Queensland or elsewhere, commits a crime.“
Section 218A Queensland Criminal Code Act 1899
The definition of whether a child has engaged in a sexual act is the same as for the offence of “grooming” above.
Both these offences are indictable.
This means they will be committed and dealt with in the District Court by way of a trial or a sentence.
Section 218B specifies the offence of grooming. This offence targets conduct that facilitates sexual acts between adults and children. This is regardless of if the person engaging in the conduct is the adult who intends to participate in the act. The conduct also does not need to occur online. It can occur online, in person, or otherwise.
Section 218A covers the offence of procuring a child using electronic communication. This offence requires the use of electronic communication, such as online messaging. It also typically will be an adult directly engaging with a child to engage in a sexual act.
As such, “grooming” encompasses a broader range of conduct that facilitates child exploitation.
The maximum penalty for using the internet to procure a child under 16 is 10 years imprisonment.
A circumstance of aggravation applies if:
In those cases, the maximum penalty increases to 14 years imprisonment.
The maximum penalty for the offence of grooming is 5 years imprisonment.
This increases to 10 years imprisonment if the child is under 12 years of age.
Sentencing statistics are available from the Queensland Sentencing Information Service. They show the most common penalty imposed for these offences is a period of imprisonment.
Periods of imprisonment, however, can come in many forms, including:
Another sentencing option is a period of probation.
The Penalties and Sentences Act, however, stipulates guidelines for sentencing. This includes sentencing for offences of a sexual nature committed against a child. Both these offences fall into this category. The Act states that for such an offence, an offender must serve an actual term of imprisonment. This is unless the Court finds there are “exceptional circumstances“.
What constitutes “exceptional circumstances” will vary from case to case. Ultimately, it is a decision for the sentencing Judge.
Our Brisbane criminal lawyers will be able to advise you about what to expect in terms of penalty.
As with most criminal offences, there is a general defence to the charges on a factual basis. This is that the offending simply did not occur.
Aside from this, there is also a specific defence to the charges. It is a defence that the accused believed on reasonable grounds that the child was at least 16 years of age. There is also a defence to the circumstance of aggravation if the child is alleged to have been under 12 years. It is a defence to this element if the accused believed on reasonable grounds that the child was at least 12 years. This is not, however, a defence to the charge generally.
For both offences, it is not a defence to the charge if it turns out the child:
In many circumstances, undercover police officers will pose as children online. This is a strategy used by police to investigate the commission of these offences.
The prosecution does not need to provide the accused’s specific intentions. It is not necessary to show that the accused intended to procure the child for a particular sexual act.
It also does not matter whether it is impossible in fact for the child to engage in a sexual act.
Offenders found guilty of this offence will automatically be:
See our article on the Child Protection Offender Register for more details.
It is essential you have experienced solicitors when dealing with offences involving children. The consequences if you are found guilty or convicted of such offences are serious.
Our Brisbane Criminal Defence lawyers will make sure your rights are protected.
Aitken Whyte Lawyers Brisbane are focused on results.
Our solicitors can assist you with all criminal matters. Call us on 07 3229 4459 to discuss your needs.
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