Indecent Treatment of a Child under 16

In Queensland, the age a person can lawfully consent to a sexual act is 16 years of age. 

Accordingly, sexual or indecent treatment of people under the age of 16 is a criminal offence punishable by up to 20 years imprisonment, depending on the circumstances of the case. 

What is Indecent Treatment of a Child Under 16?

Section 210 of the Criminal Code states that a person is guilty of the offence of Indecently Dealing with a child under 16 if they: 

(a) unlawfully and indecently deal with a child under the age of 16 years; or

(b) unlawfully procure a child under the age of 16 years to commit an indecent act; or

(c) unlawfully permits themselves to be indecently dealt with by a child under the age of 16 years; or

(d) wilfully and unlawfully expose a child under the age of 16 years to an indecent act by the offender or another person; or

(e) without legitimate reason, wilfully expose a child under the age of 16 years to any indecent object or any indecent film, videotape, audiotape, picture, photograph or printed or written matter; or

(f) without legitimate reason, take any indecent photograph or records, by means of any device, any indecent visual image of a child under the age of 16 years;

The words “deal with” in this section includes doing any act which, if done without consent, would constitute an assault.  This includes touching of the Complainant and any other application of force of any kind, (directly or indirectly) to the Complainant. 

What Must be Proven?

For a person to be found guilty of Indecent Treatment of a child under 16, the Prosecution must prove each of the following elements of the charge:

• That there was an indecent act by the accused; and
• That the indecent act concerned one of the examples of unlawful treatment (i.e deal with, procure to commit indecent act, permit themselves to be indecently dealt with, willfully expose to an indecent act or expose to indecent material)
• That the indecent act was directed at a person under 16 years of age.

In addition to the above elements, if the accused person is charged with a circumstance of aggravation, the circumstance of aggravation becomes an additional element which must be proven alongside the other elements of the offence.

If the Prosecution is unable to prove every single one of the relevant elements to the requisite standard (beyond a reasonable doubt), the accused should be found not guilty. 

Maximum Penalty – ‘Simpliciter’ and ‘Aggravated’ Forms of Indecent Treatment

In Court you will often hear charges without circumstances of aggravation referred to as “simpliciter” offences, and charges with circumstances of aggravation referred to as “aggravated” offences. 

The charge of Indecent Treatment is an offence which will attract a heavier sentence where it is charged with a circumstance of aggravation.  Where a circumstance of aggravation is averred by the Prosecution as part of the allegations of the charge, the charge becomes an “aggravated” Indecent Treatment offence and the maximum penalty the person faces will increase. Aggravated Indecent Treatment offences generally attract heavier sentences because of their added seriousness.  

The maximum penalty for Indecent Treatment of a Child (Simpliciter) is 14 years imprisonment. The maximum penalty then increases if any of the below circumstances of aggravation exist:

• The complainant child was under the age of 12 years at the time of the offending (maximum penalty increases to 20 years imprisonment)
• The complainant child is, to the knowledge of the offender, his or her lineal descendant or if the offender is the guardian of the child or, for the time being, has the child under his or her care; (maximum penalty increases to 20 years imprisonment)
• The complainant child is a person with a disability that is attributable to an intellectual, psychiatric, cognitive or neurological impairment or a combination of these; and results in a substantial reduction of the person’s capacity for communication, social interaction or learning; and needing support (maximum penalty increases to 20 years imprisonment)
• Under the s 161Q of the Penalties and Sentences Act 1992 (QLD), it is also a circumstance of aggravation to the charge of Indecent Treatment of a Child, if, at the time the offence was committed, or at any time during the course of the commission of the offence, the offender: 
  • Was a participant in a criminal organisation; and 
  • they knew or ought reasonably to have known the offence was being committed
    • at the direction of the criminal organisation or one of its participants, or
    • in association with 1 or more persons who were participants of the criminal organisation at the time the offence was committed; or
    • for the direct or indirect benefit of a criminal organisation 

The above circumstance of aggravation was introduced some years ago to specifically target and more substantially punish the illegal conduct of motorcycle gangs and other criminal organisations. The impact of this circumstance of aggravation is that, if convicted of this offence with this particular circumstance of aggravation, the Court must impose, as a part of your sentence, a base component (sentence of imprisonment imposed under the law) in addition to a mandatory 7 years imprisonment which has to be served cumulatively (or on top of) the base component term of imprisonment and must be served wholly in a corrective services facility. 

Which Court Will Hear the Matter?

In some cases, an accused person can have their charge of Indecent Treatment of a Child Under 16 finalised in the Magistrates Court of Queensland. This is only possible if:

•  The accused person does not elect to have a trial by Jury in the District Court
•  The accused person is pleading guilty to the offence, and
•  the victim of the offence was 14 years or older at the time of the offence; and
•  The complainant child is not lineal descendant of, or under care/guardianship of the offender
•  The complainant child is not a person with an impairment of the mind; and
• The Magistrates’ Court does not abstain from jurisdiction (this can occur if the Court believes the person cannot be adequately punished in the Magistrates Court because the person is likely to be sentenced to more than 3 years imprisonment which is the Magistrates Court’s jurisdictional limit for terms of imprisonment).

In all other cases, because of the nature and seriousness of the charge, the matter must proceed on indictment and be finalised before the District Court of Queensland.

Possible Defences to Indecent Treatment of a Child Under 16 years

The following defences may be available to a person charged with Indecent Treatment of a Child Under 16 years, depending on the facts and circumstances of their particular case: 

1. Mistake of fact as to the age of the complainant

• • If the offence is alleged to have been committed in respect of a child of or above the age of 12 years, it is a defence to prove that the accused person believed, honestly and reasonably but mistakenly believed the child was 16 years or older.  Conversely, If the complainant child was 12 years or over, it is immaterial that the accused person did not know that the person was under 16, or that they believed that the person was older than 16 years.
  • If the complainant child was 12 years or older, and you wish to raise the mistake of fact defence, a mere mistake is not enough, the mistake must have been both honest (genuinely held) and reasonable in reference to the particular circumstances of the accused person’s case.
  • If this defence is successfully raised, the defendant is not criminally responsible to any greater extent than if the real state of things had been such as they believed to exist.

2. The person charged had a mental illness which deprived them of their capacity to understand what they were doing at the time of the offence, or to control their actions, or to know that they ought not do the act. (Insanity/ Unsoundness of mind – Section 27 of the Criminal Code); and

Common Questions about Indecent Treatment of a Child Under 16 years

Will the jury take into account that I was drunk when the event occurred?

If the complainant child was over 12 years old, a jury is entitled to take into account your intoxication when determining whether they believe you held an honest belief that the complainant was over 16 years.  But a jury cannot have regard to your voluntary intoxication when deciding whether your belief as to the complainant’s consent was reasonable.  In short, voluntary intoxication is not, in and of itself, a defence to the charge and the fact that you were intoxicated cannot turn what would otherwise be an unreasonable belief into a reasonable one.  

Will I go to jail or have a criminal record if I am convicted of this offence?

The following is a list of potential sentences a Queensland Court can make (in order of seriousness, from least serious to most serious):

• Convict and not further punish
• Release upon entering into a recognisance, with no conviction recorded (also known as a Good Behaviour Bond)
• A monetary fine
• Probation 
• Community Service
• An Intensive Corrections Order
• Suspended Orders of Imprisonment
• Imprisonment 

Indecent Treatment of a Child Under 16 is a serious criminal charge.  In Queensland:-

• If a person is convicted of any offence of a sexual nature committed in relation to a child under 16 years, the offender must serve an actual term of imprisonment unless there are exceptional circumstances. 
• Any time the Court orders a term of imprisonment for an offence (even if the imprisonment is wholly suspended, or the person is granted immediate parole) the Court must record a conviction. This means the offence will appear on the person’s Court outcomes, and the person will have recorded criminal history. 
• The offence of Indecent Treatment of a Child Under 16 is both a ‘serious violent offence’ and a ‘qualifying offence’ under the Penalties and Sentences Act 1992 (QLD). This means if you are convicted of this offence and sentenced for it, the Court can, in some instances:
• Make a serious violent offender declaration as a part of your sentence, requiring you to serve 80% of your sentence (or 15 years, whichever is less) in actual custody before being eligible to apply for parole; or
• Impose an indefinite sentence instead of imposing a fixed term of imprisonment.

The consequences of a conviction being recorded for any type of offence can be serious if you have a job or type of employment where you need to have no prior criminal convictions.  It may also jeopardise your employment and/or make it difficult to obtain visas for overseas travel.  A conviction for an offence of a sexual nature can completely rule out certain career paths, particularly those vocations which require a blue card, where you are working with children, or other vulnerable communities. If you are convicted of an offence of this nature, you can expect to have your blue-card taken away from you. 

Will I be a reportable child sex offender if I am convicted of this offence?

Indecent Treatment of a Child is a prescribed offence under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004.  This means if you plead guilty or are found guilty of this offence, and you have a conviction recorded, or you are sentenced to a term of imprisonment or supervision, you will become a reportable offender under this Act. 

This means you will be on the Child Protection Offender Registry (‘CPOR’)  and you will have to report to Police and keep Police informed of your whereabouts and other personal details for a period of time.  How long you must be on this register depends on a number of factors. The period a person can be made subject to the CPOR reporting regime ranges from five years to  an indefinite period of time.

What should I do if the Police contact me about a charge of Indecent Treatment?

If you are contacted by Police and they want to talk to you about a charge of Indecent Treatment of a Child Under 16, it’s important you receive good advice at the earliest opportunity and before speaking with Police or anyone else about the matter.  Armstrong Legal provides expert legal advice and representation for offences of this nature. Contact Armstrong Legal now to arrange an obligation free consultation. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.