Attempting or Assaulting With Intention to Have Sexual Intercourse With Child Under 10

The offence of Attempting or Assaulting with Intention to have Sexual Intercourse with Child under 10 carries a maximum penalty of 25 years imprisonment. 

What is Attempting or Assaulting with Intention to have Sexual Intercourse with a Child under 10?

The offence of Attempting or Assaulting with Intention to have Sexual Intercourse with Child under 10 is set out under section 66B of the Crimes Act 1900 (NSW) (the Act) which states:

Any person who attempts to have sexual intercourse with a child who is under the age of 10 years, or assaults a child who is under the age of 10 years with intent to have sexual intercourse, shall be liable to imprisonment for 25 years.

Assault with Intent to have Sexual Intercourse is the charge that is used for attempted rape offences in NSW and is a very serious offence.

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. 

Assaulting a child is when you:

• Cause the child to fear unlawful and immediate violence, or
• You have made unauthorised physical contact with the child, and
• The child did not consent, and
• Your actions were intentional and reckless in nature

The following acts constitute Attempting or Assaulting with Intention to have Sexual Intercourse with Child under 10:

• Holding a child under 10 years old down and pulling their pants down with the intention to have sexual intercourse
• You touched a child’s genitals, who is under 10 years old whilst you were naked with the intention of having sexual intercourse

What Must be Proven?

For a person to be found guilty of Attempting or Assaulting with Intention to have Sexual Intercourse with Child under 10, the Prosecution must prove each of the following matters beyond a reasonable doubt:

• You attempted to have sexual intercourse with a child under the age of 10, or 
• You assaulted a child under the age of 10 years with the intention of having sexual intercourse with the child, and
• You knew or were reckless as to whether the child was under 10, or 
• You had no reasonable grounds to believe the child was over 10.

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 Attempting or Assaulting with Intention to have Sexual Intercourse with Child under 10

The following defences may be available for an Attempting or Assaulting with Intention to have Sexual Intercourse with Child under 10 charge:

• Duress
• Honest and reasonable mistake of fact as to age
• No intention to have sexual intercourse

Common Questions about Attempting or Assaulting with Intention to have Sexual Intercourse with Child under 10

Will I receive a criminal conviction?

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

In NSW, a Court can impose any of the following penalties for an Attempting or Assaulting with Intention to have Sexual Intercourse with 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 an Attempting or Assaulting with Intention to have Sexual Intercourse with Child under 10 charge might jeopardise your job or make it difficult to obtain visas for overseas travel. 

Will I go to Gaol for an Attempting or Assaulting with Intention to have Sexual Intercourse with 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 10 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 under 10) charge?

• 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.