Sexual Intercourse (Child between 10 and 16)
The offence of Sexual Intercourse (Child between 10 and 16) carries the following maximum penalties:
- 16 years imprisonment if the child is above the age of 10 years and under the age of 14 years.
- 20 years imprisonment if the child is above the age of 10 years and under the age of 14 years if there are circumstances of aggravation.
- 10 years imprisonment if the child is of or above the age of 14 years and under the age of 16 years.
- 12 years imprisonment if the child is of or above the age of 14 years and under the age of 16 years if there are circumstances of aggravation.
What is Sexual Intercourse (Child between 10 and 16)?
The offence of Sexual Intercourse (Child between 10 and 16) is set out in section 66C of the Crimes Act 1900 (NSW) (the Act) which states:
- Child between 10 and 14 Any person who has sexual intercourse with a child who is of or above the age of 10 years and under the age of 14 years is liable to imprisonment for 16 years.
- Child between 10 and 14—aggravated offence Any person who has sexual intercourse with a child who is of or above the age of 10 years and under the age of 14 years in circumstances of aggravation is liable to imprisonment for 20 years.
- Child between 14 and 16 Any person who has sexual intercourse with a child who is of or above the age of 14 years and under the age of 16 years is liable to imprisonment for 10 years.
- Child between 14 and 16—aggravated offence Any person who has sexual intercourse with a child who is of or above the age of 14 years and under the age of 16 years in circumstances of aggravation is liable to imprisonment for 12 years.
- In this section, circumstances of aggravation means circumstances in which—
- at the time of, or immediately before or after, the commission of the offence, the accused person intentionally or recklessly inflicts actual bodily harm on the complainant or any other person who is present or nearby, or
- at the time of, or immediately before or after, the commission of the offence, the accused person threatens to inflict actual bodily harm on the complainant or any other person who is present or nearby by means of an offensive weapon or instrument, or
- the accused person is in the company of another person or persons, or
- the complainant is (whether generally or at the time of the commission of the offence) under the authority of the accused person, or
- the complainant has a serious physical disability, or
- the complainant has a cognitive impairment, or
- the accused person took advantage of the complainant being under the influence of alcohol or a drug in order to commit the offence, or
- the accused person deprives the complainant of his or her liberty for a period before or after the commission of the offence, or
- the accused person breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence.
This is a very serious offence which requires prompt legal advice.
Breakdown of Terms
The definition of Sexual Intercourse is under section 61HA of the Act, as meaning:
- The penetration to any extent of the genitalia or anus of a person by using a body part or an object or;
- The introduction of any part of the genitalia of a person into the mouth of another person, and
- The application of the mouth or tongue to the female genitalia.
The following acts constitute Sexual Intercourse (Child between 10 and 16):
- Performing oral sex on a child who is between the age of 10 and 16
- Penetrating your penis into a child who is between the age of 10 and 16
- Using an object to penetrate a child who is between the age of 10 and 16
What Must be Proven?
For a person to be found guilty of Sexual Intercourse (Child between 10 and 16), the Prosecution must prove each of the following matters beyond a reasonable doubt:
- You had sexual intercourse with a child between the age of 10 and 16, and
- You knew or were reckless as to whether the child was between the age of 10 and 16, or
- You had no reasonable grounds to believe the child was between the age of 10 and 16.
If the Prosecution does not prove every single one of the above elements, you will be found not guilty.
Which Court Will Hear the Matter?
This offence is Strictly Indictable, which means that it must be finalised (either by way of a trial or sentence) in the District Court. The matter will still start in the Local Court and it will be subject to the Early Appropriate Pleas of Guilty (EAGP) Scheme.
Possible Defences to Sexual Intercourse (Child under 10)
The following defences may be available for a Sexual Intercourse (Child under 10) charge:
- Duress
- Honest and reasonable mistake of fact as to age
Common Questions about Sexual Intercourse (Child under 10)
Will I receive a criminal conviction?
A conviction and criminal record for this offence is extremely likely, even if you have no prior criminal convictions.
In NSW, a Court can impose any of the following penalties for a Sexual Intercourse (Child under 10) charge:
- Gaol Sentence
- Intensive Corrections Order (ICO)
- Community Corrections Orders (CCO)
- Conditional Release Order with conviction (CRO)
- Fine
- Conditional Release Order without conviction (CRO)
- S10A
- Section 10
The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for a Sexual Intercourse (Child between 10 and 16) charge might jeopardise your job or make it difficult to obtain visas for overseas travel.
Will I go to Gaol for a Sexual Intercourse (Child under 10) charge?
A Gaol sentence is highly likely for this offence if you are found guilty.
Will I end up on the Sex Offenders Register?
If you are convicted of the offence, you will be on the Sex Offenders Register.
How long would this offence stay on my criminal record for?
This offence will remain on your criminal record for life.
What if they consented?
A child under the age of 16 years old cannot legally provide consent, so this is not a defence. ‘Consent’ is a complicated legal term and can be read on here [LINK].
What factors affect sentencing for Sexual Assault (Child between 10 and 16)?
- The nature, circumstances, and seriousness of the offence;
- The use of pressure or threats before or after the offence to ensure the victim’s compliance with the demands made, and subsequent silence;
- The extent of any injury, emotional harm, loss or damage resulting from the offence;
- The existence of any aggravating factors;
- The personal circumstances and vulnerability of any victim due to their age, occupation, relationship to you, or disability;
- Your prospects of rehabilitation.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.
