Aggravated Sexual Act (Child Between 10 and 16)

The offence of Aggravated Sexual Act (Child between 10 and 16) carries a maximum penalty of 5 years imprisonment. 

What is Aggravated Sexual Act (Child between 10 and 16)?

The offence of Aggravated Sexual Act (Child between 10 and 16) is set out under section 66DE of the Crimes Act 1900 (NSW) and states:

(1)  Any person who in circumstances of aggravation intentionally—

(a)  carries out a sexual act with or towards a child who is of or above the age of 10 years and under the age of 16 years, or

(a1) carries out a sexual act—

(i)  in the presence of a child who is of or above the age of 10 years and under the age of 16 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 of or above the age of 10 years and under the age of 16 years to carry out a sexual act with or towards the person, or

(c)  incites a child who is of or above the age of 10 years and under the age of 16 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 of or above the age of 10 years and under the age of 16 years,

is guilty of an offence.

Maximum penalty—Imprisonment for 5 years.

(2)  In this section, circumstances of aggravation means circumstances in which—

(a)  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

(b)  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

(c)  the accused person is in the company of another person or persons, or

(d)  the complainant is (whether generally or at the time of the commission of the offence) under the authority of the accused person, or

(e)  the complainant has a serious physical disability, or

(f)  the complainant has a cognitive impairment, or

(g)  the accused person took advantage of the complainant being under the influence of alcohol or a drug in order to commit the offence, or

(h)  the accused person deprives the complainant of his or her liberty for a period before or after the commission of the offence, or

(i)  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.

Meaning, any person, who in circumstances of aggravation intentionally carries out a sexual act with or towards a child who is of or above the age of 10 years and under the age of 16 years, is guilty of an offence.

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 Aggravated Sexual Act (Child between 10 and 16):

• Rubbing a 10–16-year-old child’s breasts, whom has a cognitive impairment. 

• Encouraging a 10–16-year-old child to masturbate in front of you or masturbating in front of them, whilst a third person is present.
• Sexually touching a child when you are their step parent, teacher or tutor. 

What Must be Proven?

For a person to be found guilty of Aggravated Sexual Act (Child between 10 and 16), the Prosecution must prove each of the following matters beyond a reasonable doubt:

• You carried out a sexual act with or towards a child aged at least 10 but less than 16 years, or 

• you incited the child to carry out a sexual act with 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, and 

• You did so in ‘circumstances of aggravation’. 

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 a Table 2 offence, which means that it will be dealt with in the Local Court unless the Prosecution elects to have the matter dealt with in the District Court.

Possible Defences to Aggravated Sexual Act (Child between 10 and 16)

The following defences may be available for an Aggravated Sexual Act (Child between 10 and 16) charge:

• Duress
• Honest and reasonable mistake of fact as to age
• No circumstances of aggravation present

Common Questions about (offence)

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 an Aggravated Sexual Act (Child between 10 and 16) 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 Aggravated Sexual Act (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 an Aggravated Sexual Act (Child between 10 and 16) charge?

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

What if they consented?

‘Consent’ is a complicated legal term and can be read on here [LINK].

Will I end up on the Sex Offenders Register?

If you are convicted of the offence, you will be on the Sex Offenders Register.

What factors affect sentencing for an Aggravated Sexual Act (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.