s215 Criminal Code 1899 makes it an offence to have carnal knowledge of a child under 16.
What the prosecution must prove.
The prosecution must prove beyond reasonable doubt that:
1. The defendant had or attempted to have carnal knowledge of the complainant.
2. That the complainant was under 16.
What it means.
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 sexual activity.
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.
Carnal knowledge include vaginal and anal intercourse. Penetration to any degree is sufficient.
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 Unlawful Carnal Knowledge is 14 years imprisonment.
That maximum penalty is increased to life imprisonment (or 14 years for an attempt) if any of the following circumstances are charged and proved:
• The child was under 12.
• The child was under the care of the offender.
• The child has an impairment of the mind.
The maximum penalty is a poor numerical indicator of sentences usually imposed. It plays a role in defining 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.
The penalty for a first offence of this nature can range from a community based order to a lengthy term of imprisonment. The courts treat otherwise consensual sexual activity between two children very differently from an offence involving a much older offender.
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.