Sexual Intercourse (Child Under 10)

The offence of Sexual Intercourse (Child under 10) carries a maximum penalty of life imprisonment.

What is Sexual Intercourse (Child under 10)?

The offence of Sexual Intercourse (Child under 10) is set out in section 66A of the Crimes Act 1900 (NSW) (the Act) which states: 

• Any person who has sexual intercourse with a child who is under the age of 10 years is guilty of an offence.

Maximum penalty—imprisonment for life.

(2)  A person sentenced to imprisonment for life for an offence under this section is to serve that sentence for the term of the person’s natural life.

Sexual Intercourse (Child under 10) is the charge that is used for any person who has sex with a child under the age of 10 years. 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 definition of ‘life in prison’, pursuant to s 66A (2) of the Act, means that a person sentenced to imprisonment for life for an offence under this section is to serve that sentence for the term of the person’s natural life. 

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

• Performing oral sex on a child who is under the age of 10
• Penetrating your penis into a child who is under the age of 10
• Using an object to penetrate a child who is under the age of 10

What Must be Proven?

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

• You had sexual intercourse with a child under the age of 10, 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 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 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 Intercourse (Child under 10) charge?

A Gaol sentence is highly likely to an offender that pleads or is found guilty of this offence. According to the Judicial Information Research System, from 2018-2024, 92.4% of cases concerning section 66A were penalized with imprisonment. 7.6% of cases presented with a Community Corrections Order. 

Is there a non-parole period?

The standard non-parole period is 15 years imprisonment. 

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)?

• 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.