Sexual Act (Child Under 10)

The offence of Sexual Act (Child under 10) carries a maximum penalty of 7 years imprisonment.

What is Sexual Act (Child under 10)?

Sexual Act (Child under 10) is set out under section 66DC of the Crimes Act 1900 (NSW) and states:

Any person who intentionally—

(a)  carries out a sexual act with or towards a child who is under the age of 10 years, or

(a1) carries out a sexual act—

(i)  in the presence of a child who is under the age of 10 years, and

(ii)  for which the presence of the child is a source of sexual arousal or gratification of the person carrying out the sexual act, or

(b)  incites a child who is under the age of 10 years to carry out a sexual act with or towards the person, or

(c)  incites a child who is under the age of 10 years to carry out a sexual act with or towards another person, or

(d)  incites another person to carry out a sexual act with or towards a child who is under the age of 10 years,

is guilty of an offence.

Maximum penalty—Imprisonment for 7 years.

Breakdown of Terms

“Sexual Act” means an act (other than sexual touching) carried out in circumstances where a reasonable person would consider the act to be sexual1. In deciding whether a reasonable person would consider an act to be sexual, the Court will consider the following:  

• whether the area of the body involved in the act is a person’s genital area, anal area or breasts  

• whether the breasts are sexually developed; and 

• regardless of gender or sex or whether the person carrying out the act does so for the purpose of obtaining sexual arousal or sexual gratification; or 

• whether any other aspect of the act (including the circumstances in which it is carried out) makes it sexual.  

This is a serious offence which requires prompt legal advice. 

The following acts constitute Sexual Act (Child under 10): 

• Masturbating near a child who is under the age of 10;
• Watching children swim in a pool for the purposes of sexual gratification;
• Watching pornography in the presence of children;

What Must be Proven?

For a person to be found guilty of Sexual Act (Child under 10), the Prosecution must prove each of the following matters beyond a reasonable doubt:

• You carried out a sexual act with or towards a child who is under the age of 10 years, or
• You incited the child to carry out a sexual act with you or towards you, or
• You incited a third person to carry out a sexual act with or towards the child, or
• You incited the child to carry out a sexual act with or towards a third person.

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 Act (Child under 10)

The following defences may be available for a Sexual Act (Child under 10) charge:

• Duress
• Honest and reasonable mistake of fact as to age

Common Questions about Sexual Act (Child under 10)

Will I receive a criminal conviction?

A conviction and criminal record for this offence is likely, even if you have no prior criminal convictions. 

In NSW, a Court can impose any of the following penalties for Sexual Act (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 Act (Child under 10) charge might jeopardise your job or make it difficult to obtain visas for overseas travel. 

Will I go to Gaol for a Sexual Touching (Child under 10) charge?

A Gaol sentence is highly likely for this offence if you are found guilty. 

What if they consented?

A child under the age of 10 years old cannot legally provide consent, so this is not a defence. ‘Consent’ is a tricky legal term and can be read here [LINK].

Will I end up on the Sex Offenders Register?

If you are convicted of the offence, you will possibly be on the Sex Offenders Register. We can provide you with advice on this.

What factors affect sentencing for a Sexual Act (Child under 10)?

• 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.