Sentencing Of Sex Offenders (NSW)

Every sex offence in New South Wales is considered a serious offence and this is reflected in the severe penalties for such crime. The Crimes (Sentencing Procedure) Act 1999 governs sentencing for sex offences in the state.

General sentencing principles

The Act lists seven purposes of sentencing. Those purposes are to:

• ensure the offender is adequately punished;
• prevent crime by deterring the offender and other people from similar offending;
• protect the community;
• promote rehabilitation of the offender;
• make the offender accountable for their actions;
• denounce the offender’s conduct;
• recognises the harm to victim and the community.

Factors relevant to sentencing

The Act provides a range of general factors a court is to consider in sentencing an offender. These fall under the broad categories of:

• the nature, circumstances and seriousness of the offence;
• the personal circumstances and vulnerability of any victim due to their age, occupation, relationship to the offender, or disability;
• the extent of any injury, emotional harm, loss or damage resulting from the offence;
• the offender’s character, general background, criminal history, age and any disability;
• the offender’s prospects of rehabilitation.

Section 21A provides a special rule for a court when sentencing for child sex offences: that good character or lack of previous convictions is not to be taken into account as a mitigating factor if this helped the offender in the commission of the offence. The Act also precludes the court from considering the consequences of a sentence in relation to restrictions on employment that apply to certain sexual offenders.

Victim aged under 10

It is a crime to have sexual intercourse with a child aged under 10. The maximum penalty is imprisonment for life, with anyone receiving this sentence to serve that sentence for the term of their natural life. Anyone who attempts to have sexual intercourse with a child aged under 10 is liable to imprisonment for 25 years.

Victim aged 10 to 14

Anyone who has sexual intercourse with a child aged between 10 and 14 is liable to imprisonment for 16 years. If there are circumstances of aggravation, the penalty increases to 20 years.

Victim aged 14 to 16

Anyone who has sexual intercourse with a child aged between 14 and 16 is liable to imprisonment for 10 years. If there are circumstances of aggravation, the penalty increases to 12 years.

Circumstances of aggravation

The Act defines “circumstances of aggravation” as:

• intentional or reckless infliction of actual bodily harm;
• threat or actual bodily harm by means of an offensive weapon or instrument;
• in company;
• the victim being aged under 16;
• the victim being under the authority of the offender;
• the victim having a serious physical disability;
• the victim having a cognitive impairment;
• break and entry into a place with an intent to commit an offence;
• deprivation of the victim’s liberty before or after the offence.

Standard non-parole periods

Standard non-parole periods apply for certain sex offences. These are:

• Sexual assault – 7 years
• Aggravated sexual assault – 10 years
• Aggravated sexual assault in company – 15 years
• Aggravated indecent assault – 7 years

Alternatives to full-time imprisonment

Under section 5 of the Act, a court must not sentence and offender to imprisonment unless it considers that no other penalty is appropriate. When a court imposes a prison sentence of 6 months or less, it must  provide reasons it chose imprisonment, including why it did not make an order that the offender take part in a treatment program or other rehabilitation, such as an intensive correction order.

However, under section 67(1)(b) of the Act, a court must not make an intensive correction order for a “prescribed sexual offence”. A “prescribed sexual offence” includes offences involving:

• sexual intercourse with a victim of any age;
• a victim aged under 16;
• child prostitution;
• production, dissemination or possession of child abuse material.

Conviction for a child sex offence

Among the social and legal consequences of a conviction for a child sex offence is the offender’s status as a “disqualified person” and “registrable” person.

Under the Child Protection (Working With Children) Act 2012, a person convicted of a child sex offence automatically becomes a “disqualified person”. This means the person is prohibited from obtaining a working with children check clearance, which is required to work in a child-related job.

Under the Child Protection (Offenders Registration) Act 2000, a person convicted of a child sex offence automatically becomes a “registrable person”. This means the person is placed on the Child Protection Register, which contains the person’s details and requires the person to report regularly to police.

Serious Sex Offenders

The Crimes (Serious Sex Offenders) Act 2006 allows the Attorney-General to apply for a “continuing detention order” or an “extended supervision order” for a “serious sex offender”. Such an offender has:

• committed a sex offence against a child, or an aggravated sex offence against an adult, punishable by imprisonment of 7 years or more;
• engaged in persistent sexual abuse of a child;
• committed a break and enter with an intent to commit a sexual offence;
• used an intoxicating substance with an intent to commit a sexual offence.

A continuing detention order allows for the extension of a serious sex offender’s term of imprisonment when the original sentence has been served. An extended supervision order allows for further supervision of an offender in the community, once their initial supervision order has expired, where the offender poses an unacceptable risk of committing a serious sex offence if unsupervised.

For advice or representation in any legal matter, please contact Armstrong Legal.