Those accused of offences against a child are being charged with a crime involving non-consensual sexual contact, sexual penetration, indecent dealing, indecent recording or other crimes of a sexual nature involving a child. The law is clear: children under 16 cannot give consent.
Penalties for those convicted of these crimes vary based on the age of the child, the specific act, and whether the abuser was in a position of authority over the victim. Sex offences would ordinarily attract an immediate term of imprisonment. Depending on the severity of the offending, the range of penalty will vary significantly. It is in your best interest to immediately contact a criminal defence lawyer if you are charged with this crime.
Definition of consent
Circumstances in which a person does not freely agree to an act include the following:
(a) the person submits because of force or the fear of force to that person or someone else;
(b) the person submits because of the fear of harm of any type to that person or someone else;
(c) the person submits because she or he is unlawfully detained;
(d) the person is asleep, unconscious, or so affected by alcohol or another drug as to be incapable of freely agreeing;
(e) the person is incapable of understanding the sexual nature of the act;
(f) the person is mistaken about the sexual nature of the act or the identity of the person;
(g) the person mistakenly believes that the act is for medical or hygienic purposes.”
“In a relevant case the judge must direct the jury that –
(a) the fact that a person did not say or do anything to indicate free agreement to a sexual act is normally enough to show that the act took place without that person’s free agreement;
(b) a person is not to be regarded as having freely agreed to a sexual act just because –
(i) she or he did not protest or physically resist; or
(ii) she or he did not sustain physical injury; or
(iii) on that or an earlier occasion, she or he freely agreed to engage in another sexual act (whether or not of the same type) with that person, or a sexual act with another person;
(c) in considering the accused’s alleged belief that the complainant was consenting to the sexual act, it must take into account whether that belief was reasonable in all the relevant circumstances.”
Types of Offences Against a Child
- Indecent dealings with a child (Sections 320 and 321 of the Criminal Code)
- Sexual penetration of a child (Section 321(2) of the Criminal Code)
- Possession of child exploitation material – An offence where a person has child pornography material. (Section 217A of the Criminal Code)
- Persistent sexual conduct with a child- An offence where the accused does a ‘sexual act’ with the child under the age of 16 on at least three separate occasions. (Section 321A of the Criminal Code)
- Use electronic communication to procure or expose a child to engage in sexual activity.- This offence occurs when someone uses electronic communication with the intent of getting hold of someone under the age of 16 to engage in sexual activity or expose them to sexual activity. (Section 204B of the Criminal Code)
- Sexual offences against a child by a person in authority- Sexual offence of a child by a person charged with their care or who is in a position of authority. (Section 322 of the Criminal Code)
- Intra-familial sex offences- Committing sexual offences against a child where the child is a relative. (Section 329 of the Criminal Code)
Sentencing & Penalties for Offences Against a Child
Child Under 13
| PROVISION | OFFENCE | MAXIMUM PENALTY |
| 320(2) | Sexual penetration of child | 20 Years Imprisonment |
| 320(3) | Procure, incite or encourage child to engage in sexual behaviour | 20 Years Imprisonment |
| 320(4) | Indecent dealings with child | 10 Years Imprisonment |
| 320(5) | Procure, incite or encourage to engage in indecent act | 10 Years Imprisonment |
| 320(6) | Indecently record a child |
10 Years Imprisonment |
Child Aged 13-16
| PROVISION | OFFENCE | MAXIMUM PENALTY |
| 321(2) | Sexual penetration of child | Imprisonment for 14 years (20 years if the child is under the offender’s supervision or care) |
| 321(3) | Procure, incite or encourage child to engage in sexual behaviour | Imprisonment for 14 years (20 years if the child is under the offender’s supervision or care) |
| 321(4) | Indecent dealings with child | Imprisonment for 7 years (10 years if the child was under the offender’s supervision, control or authority) |
| 321(5) | Procure, incite or encourage to engage in indecent act | Imprisonment for 7 years (10 years if the child was under the offender’s supervision, control or authority) |
Child Aged 16-17
| PROVISION | OFFENCE | MAXIMUM PENALTY |
| 322(2) | Sexual penetration of child | Imprisonment for 10 years |
| 322(3) | Procure, incite or encourage child to engage in sexual behaviour | Imprisonment for 10 years |
| 322(4) | Indecent dealings with child | Imprisonment for 5 years |
| 322(5) | Procure, incite or encourage to engage in indecent act | Imprisonment for 5 years |
| 322(6) | Indecently record a child | Imprisonment for 5 years |
Consent
In Western Australia, consent is defined as an agreement to freely and voluntarily agree to do an act. It is important to note that failing to resist or fight back does NOT imply consent.
According to the Criminal Code Compilation Act,
- A child under 16 cannot consent to sex with any other person.
- Sexual contact with a child aged 13-16 can be defended if:
- The accused was less than 3 years older than the child
- The accused had reasonable belief that the child was aged at least 16
- The accused and the child were lawfully married at the time.
- Sexual contact with a child aged 16 or 17 is an offence if the accused has authority over the child.
Your Criminal Defence Lawyers in Perth
If you are charged with an offence against a child, your first move should be to retain the services of an experienced criminal defender. Western Australia views offences against a child as severe matters. Consequently, the penalties if convicted are severe.
When dealing with this type of charge, your legal team needs to be skilled and capable. This is why you should choose WN Legal. We have well over a decade of experience defending clients facing charges for offences against a child. We have a thorough knowledge of the courts and insight into the strategies required to mount a strong defence.
Kryan & Khew are extremely compassionate and professional. They are very thorough and don’t miss anything, I was super impressed with their genuine personalities while they remained professional and businesslike throughout my dealing with them. I would not hesitate to recommend my family, friends, and business clients to them.
I was recently charged with aggravated common assault. WN Legal represented me from day one till the case was finalized. They are affordable, professional, knowledgeable, and sensitive. They kept me updated on the progress of the case. Despite the seriousness of the charge the outcome was the best I could expect – a fine and spent conviction. I would recommend WN Legal for all your legal problems.
“Khew and Aimee were both so amazing and helpful, Khew ran through everything to make sure we understood everything that had to happen and how things would work. I had Aimee with me on the big day and she was super kind and made you feel so comfortable like a best friend was with you, no nerves at all! She even walked me to the car to make sure I was safe, and we came away with a positive outcome 😀 win-win defiantly recommend this company 5 stars.”
“WN Legal are far superior to any legal firm we have dealt with before and they have set the bar so high we doubt we will ever find a legal firm as dedicated and professional.
We dealt mainly with Kyran who was readily accessible and exceeded our expectations. We also found the rest of the team at WN legal to be just as helpful, friendly, and genuine.
We highly recommend WN Legal to anyone.
If we could leave a rating higher than 5 stars we would, Mark and Marina”
“Absolutely the best service. I was treated in a professional manner and when i was about to give up Khew turned around and said i am not ready to give up fighting for you yet. Some of the best words said to me in awhile. Thank you Khew for all your help and support i highly recommend this law firm.”
FAQs
Will I be put on the Sex Offender Register? Will my details be made public?
Depending on the type of sex offence, it is mandatory to register an offender on the Sex Offender Register once the offender is convicted (ie once the offender enters a plea of guilty or if found guilty after trial). Your details will be made available on a register. However, any person who intends to access the Sex Offender Register will have to make themselves known to the relevant authorities before they can access the Sex Offender Register.
What are the penalties for indecent dealings with a child?
Per Sections 320 and 321 of the Criminal Code,
- Where the child is under 13 years a maximum penalty of 10 years imprisonment.
- Where the child is over 13 years but under 16 years a maximum penalty of 7 years imprisonment.
- Where the child is under 16 years and the child is under the care, supervision or authority of the offender a maximum penalty of 10 years imprisonment.
- Where the child is under 18 years and the child is under the care, supervision or authority of the offender a maximum penalty of 5 years imprisonment.
What is the offence against a child under a position of authority?
The offence against a child under a position of authority in Western Australia is addressed in the Criminal Code. According to the Criminal Code Compilation Act, it is a criminal offence to engage in sexual activity with or procure, incite, or encourage sexual activity with a child under the age of 18 who is under the care, supervision, or authority of an adult.
The penalties for such offences are outlined in the Act, with imprisonment being a potential consequence. The law aims to protect children from abuse due to the power imbalance between adults and children, recognizing the vulnerability of children and the lack of true equality in dealings between children and adults
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Whether you’re facing charges or have just been informed by the Police that they want to “have a word with you”, you should know your rights and what they are looking to do with your case.
In most instances, your decision to make admissions can have a serious bearing on your matter. Our Perth lawyers are available to discuss your situation and your options.