s218B Criminal Code 1899 makes it an offence to groom a child under 16 to engage in sexual activity.
What the prosecution must prove.
The prosecution must prove beyond reasonable doubt that:
1. The defendant engaged in any conduct.
2. The defendant was an adult.
3. The complainant was, or the defendant believed, a child under 16.
4. The conduct was intended to facilitate the procurement of the person to engage in a sexual act either in Queensland or elsewhere.
What it means.
“Sexual act” includes a sexual act to the body, an act of an indecent nature, and exposing a person to something indecent.
The word “indecent” does not have a specific legal definition. It is what the community regards as indecent. Motive and context can be relevant to considering whether an act is indecent.
“Procure” means knowingly entice or recruit for the purposes of sexual exploitation, to bring about, to cause someone to do something they would not otherwise have done.
“Expose” will normally mean show but can include exposing to a recording or sound.
The prosecution do not have to prove the complainant did not consent. The law provides that a child under 16 cannot provide legal consent to any sexual activity.
It does not matter that the person was not a child under 16 if the prosecution prove beyond reasonable doubt that the defendant believed the person was a child under 16. The offence often concerns an undercover police officer pretending to be a child online.
Evidence that the defendant was told the complainant was under the age of proof that the defendant believed the person was under that age unless the defendant proves otherwise on the balance of probabilities.
If the complainant is over the age of 12 it is a defence to prove the defence believed on reasonable grounds the complainant was over the age of 16.
The defence of Mistake of Fact is not available if the child is under 12.
The age of the defendant is irrelevant to the question of guilt. The law applies to a child of the same age as a complainant or even younger.
The available defences.
Mistake of Fact as to age if the complainant is over 12. The defendant bears the onus of proof.
The usual penalties.
The maximum penalty for the criminal offence of Grooming a Child is 5 years imprisonment.
That maximum penalty is increased to 10 years imprisonment if it is charged and proved the child was under the age of 12 or the defendant believed that.
The maximum penalty is a poor numerical indicator of sentences usually imposed. It plays a role in setting the relative seriousness of an offence. The maximum penalty is hardly ever imposed.
The law mandates that the court must impose a sentence of actual imprisonment unless there are exceptional circumstances. Exceptionally circumstances can comprise of a number of individual circumstances that are collectively exceptional. It follows, the penalty for a first offence of this nature usually involves a term of imprisonment.
Factors that affect the appropriate penalty include the age of the child, the age of the offender, the duration of the offending, whether there was an intention to meet the child in person and the impact on the child.