s210 Criminal Code 1899 makes it an offence to indecently deal with a child under 16 or procure a child to commit an act of indecency, expose a child to an indecent act or take an indecent image of a child.
What the prosecution must prove.
The prosecution must prove beyond reasonable doubt that:
1. The defendant dealt with the complainant or:
a. Procured a child to commit an act of indecency.
b. Expose a child to an indecent act or material.
c. Take an indecent image of a child.
2. The dealing was indecent.
3. The complainant was under 16 years of age
What it means.
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.
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.
Deal with means a touching. It includes a touching by any part of the defendant’s body, not just the hand.
Procuring means to bring about, to cause someone to do something they would not otherwise have done.
Exposure will normally mean show but can include exposing to a recording or sound.
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 offence of Indecent Dealing is 14 years imprisonment.
That maximum penalty is increased to 20 years imprisonment if any of the following circumstances are charged and proved:
• The child was under 12.
• The child was the lineal descendant of the defendant.
• The child was under the care of the defendant. This means the defendant was responsible for the control and supervision of the child.
• The child has an impairment of the mind.
The maximum penalty is a poor numerical indicator of sentences usually imposed though it plays a role in defining the relative seriousness of an offence.
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, and the impact on the child.
The maximum penalty is a poor numerical indicator of sentences usually imposed. It plays a very important role in setting the seriousness of an offence. The maximum penalty is hardly ever imposed.