Offences

[1-000] Sexual offences involving child victims

Table 1 contains both current and historical NSW and Commonwealth sexual offences which refer specifically to children (including, information about the period of operation of each offence).

Table 1 sets out the maximum penalties for offences where the offences are dealt with on indictment according to law.

  • For those indictable sexual offences in the Crimes Act 1900 which may be dealt summarily under the Criminal Procedure Act 1986, Ch 5, the maximum penalties are set out in the “Specific Penalties and Orders” chapter in the Local Court Bench Book.

  • Section 15 of the Crimes (Sentencing Procedure) Act 1999, which applies to all offences dealt with on indictment (other than offences for which the penalty that may be imposed includes a fine), provides that a court may impose a fine not exceeding 1,000 penalty units in addition to, or instead of, any other penalty that may be imposed for the offence.

Table 1 also identifies offences which attract a standard non-parole period (SNPP) under the Crimes (Sentencing Procedure) Act, Pt 4, Div 1A.

  • As to the application of SNPPs, see Muldrock v The Queen (2011) 244 CLR 120 and H Donnelly, “The diminished role of standard non-parole periods” (2012) 24(1) JOB 1; RA Hulme, “After Muldrock — sentencing for standard non-parole period offences in NSW” (2012) 24(10) JOB 8.

  • SNPPs do not apply to offenders who were under the age of 18 years at the time the offence was committed: Crimes (Sentencing Procedure) Act, s 54D(3): Crimes Amendment (Sexual Offences) Act 2008, Sch 2.4[4] (commenced on 1 January 2009).

Table 1 specifies whether a particular offence is a “prescribed sexual offence” for the purposes of the Criminal Procedure Act, s 3. A “prescribed sexual offence” includes nearly all offences found in Pt 3 Div 10 of the Crimes Act 1900. Prescribed sexual offences also attract particular provisions of the Crimes (Sentencing Procedure) Act (in relation to victim impact statements); the Children (Criminal Proceedings) Act 1987 (s 10(3A) in relation to hearings); and multiple provisions in the Criminal Procedure Act 1986. Section 67 of the Crimes (Sentencing Procedure) Act (intensive correction not available for certain sexual offences), contains its own definition of “prescribed sexual offence” which is different to the definition of that term in the Criminal Procedure Act, s 3.

Table 1 also indicates (by the inclusion of note (a)) which offences (or forms of offences) are a “serious children’s indictable offence” for the purposes of the Children (Criminal Proceedings) Act, s 3.

  • The Children’s Court has no jurisdiction to hear and determine proceedings in respect of these offences (or forms of offences) and they must be dealt with according to law by higher courts: s 3 definition of “serious children’s indictable offence” (a), (b), (c), (c1), (d), (e); Children (Criminal Proceedings) Regulation 2016, cl 4.

For each offence (as available), online access is provided to commentary in the Sentencing Bench Book, suggested directions and commentary in the Criminal Trial Courts Bench Book, and Judicial Commission research publications, including Sentencing Trends & Issues and Research Monographs.

For each offence (as available), online access is also provided for Judicial Information Research System (JIRS) users only to:

  • point-in-time offences

  • amending Acts which commence, repeal or amend particular offences — to access these, click on the dates appearing in the columns: “Operation” and “Max penalty and SNPP”

  • NSW Criminal Court of Appeal case summaries prepared by the Judicial Commission

  • Advance notes prepared by the Office of the Director of Public Prosecutions (NSW)

  • NSW Court of Criminal Appeal table of SNPP appeals

  • sentencing statistics — higher courts (District and Supreme Courts) and Children’s Court

  • relevant articles in other Judicial Commission publications, including the Judicial Officers’ Bulletin and The Judicial Review.

Table 1: Sexual offences involving child victims

Section

Offence

Operation

Prescribed sexual offence

Max penalty 

and SNPP

Further resources

Crimes Act 1900

s 43B Failure to reduce or remove risk of child becoming victim of abuse 31.8.18 – yes 2 yrs [Recent Law]

s 61B(1) (rep)(a)

Maliciously inflict GBH with intent to have sexual intercourse

14.7.1981 –

16.3.1991

yes

20 yrs

Cases

[CCA summaries]

s 61B(2) (rep)(a)

Maliciously inflict GBH with intent to have sexual intercourse with other

14.7.1981 –

16.3.1991

yes

20 yrs

Cases

[CCA summaries]

s 61C(1) (rep)

Maliciously inflict or threaten ABH with intent to have sexual intercourse

14.7.1981 –

16.3.1991

yes

12 yrs

Sentencing Bench Book

[20-610]

 

Cases

[CCA summaries]

[Advance notes]

 

Statistics [District and Supreme Courts]

s 61C(2) (rep)

Maliciously inflict or threaten ABH with intent to have sexual intercourse with other

14.7.1981 –

16.3.1991

yes

12 yrs

Sentencing Bench Book

[20-610]

 

Cases

[CCA summaries]

[Advance notes]

s 61C(3) (rep)

In company maliciously inflict or threaten ABH with intent to sexual intercourse

21.2.1988 –

16.3.1991

yes

14 yrs

s 61C(4) (rep)

In company maliciously inflict or threaten ABH with intent to sexual intercourse with other

21.2.1988 –

16.3.1991

yes

14 yrs

s 61D(1) (rep)

Sexual intercourse without consent — person under 16 yrs

14.7.1981 –

16.3.1991

yes

10 yrs

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

 

Research

[Research Monograph No 25, October 2004] Sentencing offenders convicted of child sexual assault

 

[Sentencing Trends No 18, August 1998] Common offences in the higher courts 1990–1997

s 61D(1A) (rep)

Sexual intercourse without consent of person under 16 yrs and under authority

23.3.1986 –

16.3.1991

yes

12 yrs

s 61D(1B) (rep)

Sexual intercourse without consent and in company — person under 16 yrs

21.2.1988 –

16.3.1991

yes

12 yrs

s 61D(1C) (rep)

Sexual intercourse without consent with person under 16 yrs and under authority and in company

21.2.1988 –

16.3.1991

yes

14 yrs

s 61E(1) (rep)(b)

Indecent assault — person under 16 yrs

14.7.1981 –

22.3.1986

ye

6 yrs

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

 

Research

[Research Monograph No 25, October 2004] Sentencing offenders convicted of child sexual assault

 

[Sentencing Trends & Issues No 34, June 2005] Trends in the use of s 12 suspended sentences

 

[Sentencing Trends No 18, August 1998] Common offences in the higher courts 1990–1997

s 61E(1A) (rep)

Indecent assault — person under 16 yrs and under authority

23.3.1986 –

16.3.1991

yes

6 yrs

s 61E(1C) (rep)

Indecent assault — person under 16 yrs and under authority and in company

21.2.1988 –

16.3.1991

yes

8 yrs

s 61E(2) (rep)

Act of indecency or incite to an act of indecency with person under 16 yrs

14.7.1981 –

16.3.1991

yes

2 yrs

s 61E(2A) (rep)

Act of indecency or incite to an act of indecency with person under 16 yrs and under authority

23.3.1986 –

16.3.1991

yes

4 yrs

s 61F (rep)

Attempt offence under ss 61B, 61C, 61D or 61E

14.7.1981 –

16.3.1991

yes

Same penalty as for principal offence

Cases

[CCA summaries]

ss 61J(1), (2)(d)(a)

See also s 61U

Aggravated sexual assault — victim under 16 yrs

17.3.1991 –

yes

20 yrs

 

SNPP

10 yrs

1.2.2003 –

[Offence package]

[Recent law]

 

Criminal Trial Courts Bench Book

 

Suggested directions

[4-215] [4-222] [4-227] [4-237] [4-240] [4-232] [5-1550] [5-1566] [5-1570] [5-1590]

 

Commentary

[1-342] [4-210] [4-220] [4-225] [4-235] [4-230] [5-1565] [5-1568] [5-1585]

 

Sentencing Bench Book

[7-890]ff [17-505] [20-830]

 

Cases

[CCA summaries]

[Advance notes]

[SNPP appeals]

 

Statistics

[District and Supreme Courts]

[Children’s Court]

 

Articles

[(2012) 24(10) JOB 81] After Muldrock — sentencing for standard non-parole period offences in NSW (RA Hulme)

 

[(2012) 24(1) JOB 1] The diminished role of standard non-parole periods (H Donnelly)

 

[(2008) 20(1) JOB 1] Recent statutory reform of consent in sexual offences (L Wells)

 

[(2002) 14(2) JOB 9] Aggravated sexual assault in company: A brief overview of the new legislation (R Johns and G Griffith)

 

Research

[Research Monograph No 33, May 2010] The impact of the standard non-parole period sentencing scheme on sentencing patterns in New South Wales

 

[Research Monograph No 29, March 2007] Full-time imprisonment in New South Wales and other jurisdictions

 

[Research Monograph No 27, June 2005] Crown appeals against sentence

 

[Research Monograph No 25, October 2004] Sentencing offenders convicted of child sexual assault

 

[Sentencing Trends & Issues No 41, December 2012] Common offences in the NSW higher courts: 2010

 

[Sentencing Trends & Issues No 36, November 2007] Trends in the use of full-time imprisonment 2006–2007

 

[Sentencing Trends & Issues No 30, March 2004] Common offences and the use of imprisonment in the District and Supreme Courts in 2002

ss 61J(1), (2)(e)(a)

 

See also s 61U

Aggravated sexual assault — victim under authority of offender

17.3.1991 –

yes

20 yrs

 

SNPP

10 yrs

1.2.2003 –

s 61KC Sexual touching 1.12.2018 – yes 5 yrs [Recent law]
s 61KD Aggravated sexual touching 1.12.2018 yes

7 yrs

 

SNPP

5 yrs

[Recent law]
s 61KE Sexual act 1.12.2018 yes 18 mths [Recent law]
s 61KF Aggravated sexual act 1.12.2018 yes 3 yrs [Recent law]

ss 61M(1), (3)(c) (rep)

Aggravated indecent assault — victim under authority of offender

17.3.1991 –

30.11.2018

yes

7 yrs

 

SNPP

5 yrs

1.2.2003 –

[Offence package]

 

[Recent law]

 

Criminal Trial Courts Bench Book

 

Suggested directions

[5-660] [5-680] [5-710]

 

Commentary

[5-650] [5-670] [5-690] [5-700]

 

Sentencing Bench Book

[7-890]ff [17-510]

 

Cases

[CCA summaries]

[Advance notes]

[SNPP appeals]

 

Statistics

[District and Supreme Courts]

[Children’s Court]

 

Articles

[(2018) 30(2) JOB 1] A guide to parole including the operating practices of the NSW State Parole Authority — Part 1 (J Wood)

.

[(2018) 30(4) JOB 33] A guide to parole including the operating practices of the NSW State Parole Authority — Part 2 (J Wood)

.

[(2015) 27(4) JOB 1] Juvenile sex offenders in the criminal justice system (D Kenny)

.

[(2012) 24(10) JOB 81] After Muldrock — sentencing for standard non-parole period offences in NSW (RA Hulme)

 

[(2012) 24(1) JOB 1] The diminished role of standard non-parole periods (H Donnelly)

 

Research

[(2017) 29(8) JOB 1] The social dynamics and impacts of institutional child sexual abuse (D Kenny)

.

[(2016) 28(3) JOB 1] The adolescent brain: implications for understanding young offenders (D Kenny)

.

[Research Monograph No 33, May 2010] The impact of the standard non-parole period sentencing scheme on sentencing patterns in New South Wales

 

[Research Monograph No 25, October 2004] Sentencing offenders convicted of child sexual assault

 

[Sentencing Trends & Issues No 34, June 2005] Trends in the use of s 12 suspended sentences

s 61M(2) (rep)

Aggravated indecent assault — person under 16 yrs

1.1.2009 –

30.11.2018

yes

10 yrs

 

SNPP

8 yrs

s 61M(2) (old)

Aggravated indecent assault — person under 10 yrs

17.3.1991 –

31.12.2008

yes

10 yrs

 

SNPP(c)

8yrs

1.1.2008 – 31.12.2008

5 yrs

1.2.2003 – 31.12.2007

s 61N(1) (rep)

Act of indecency — person under 16 yrs

1.7.1995 –

30.11.2018

yes

2 yrs

Sentencing Bench Book

[17-520]

 

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

[Children’s Court]

 

Research

[Research Monograph No 25, October 2004] Sentencing Offenders Convicted of Child Sexual Assault

s 61N(2) (rep)

Act of indecency — person 16 yrs or above

1.7.1995 –

30.11.2018

yes

18 mths

s 61N (old)

Act of indecency — person under 16 yrs

17.3.1991 –

30.6.1995

 

Wording amended 3.5.1992

yes

2 yrs

s 61O(1) (rep)

Aggravated act of indecency — person under 16 yrs

17.3.1991 –

30.11.2018

 

Wording amended 1.9.1999

 

Circumstances of aggravation in s 61O(3) amended 1.12.2008

yes

5 yrs

Sentencing Bench Book

[17-520]

 

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

[Children’s Court]

 

Research

[Research Monograph No 25, October 2004] Sentencing offenders convicted of child sexual assault

s 61O(1A)

(rep)

Aggravated act of indecency — person 16 yrs or over

1.7.1995 –

30.11.2018

 

Circumstances of aggravation in s 61O(3) amended 1.12.2008

yes

3 yrs

s 61O(2)

(rep)

Aggravated act of indecency — person under 10 yrs

17.3.1991 –

30.11.2018

 

Wording amended 1.9.1999

yes

7 yrs

s 61O(2A)

(rep)

Aggravated act of indecency — person under 16 yrs (knowing it to be filmed for producing child abuse material (previously “child pornography”)

1.1.2009 –

30.11.2018

 

Wording amended 17.9.2010

yes

10 yrs

s 61P(a)

(rep)

Attempt to commit offence under ss 61I–61O

17.3.1991 –

30.11.2018

 

Wording amended 1.10.2001

yes

As for substantive offence

Cases

[CCA summaries]

[Advance notes]

 

Research

[Research Monograph No 25, October 2004] Sentencing offenders convicted of child sexual assault

s 63 (rep)

Rape

31.10.1900 –

13.7.1981

yes

Life

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

s 65 (rep)

Assault with intent to rape

31.10.1900 –

13.7.1981

yes

14 yrs

Cases

[CCA summaries]

[Advance notes]

s 65A(2) (rep) Sexual intercourse procured by non-violent threats

21.2.1988 –

31.12.2007

yes 6 yrs

Criminal Trial Courts Bench Book

[5-1568]

 

Sentencing Bench Book

[20-700]

 

Cases

[Advance notes]

 

Statistics

[District and Supreme Courts]

s 66 (rep)

Carnal knowledge by false pretence or representation

31.10.1900 –

12.6.2003

yes

14 yrs

s 66A(1)(a)

Sexual intercourse — child under 10 yrs

29.6.2015 –

yes

Life

 

SNPP

15 yrs

 

29.6.2015 –

 

[Offence package]

 

[Recent law]

 

Sentencing Bench Book

[7-890]ff [17-480]

 

Cases

[CCA summaries]

[Advance notes]

[SNPP appeals]

 

Statistics

[District and Supreme Courts]

 

Articles

[(2012) 24(10) JOB 81] After Muldrock — sentencing for standard non-parole period offences in NSW (RA Hulme)

 

[(2012) 24(1) JOB 1] The diminished role of standard non-parole periods (H Donnelly)

 

[(2007) 19(8) JOB 68] Criminal law update 2007 — Child sexual offences (J Howie)

 

[(2006) 18(2) JOB 9] Multidisciplinary forum on child sexual assault trials (B Knox)

 

[(2006) 18(2) JOB 12] Minimising the impact of the court process on child victims: learning together (B Debus)

 

Research

[Research Monograph No 33, May 2010] The impact of the standard non-parole period sentencing scheme on sentencing patterns in New South Wales

 

[Research Monograph No 25, October 2004] Sentencing offenders convicted of child sexual assault

s 66A(1) (rep)(a)

Sexual intercourse — child under 10 yrs

1.1.2009 –

28.6.2015

yes

25 yrs

 

SNPP

15 yrs

 

1.1.2009 – 28.6.2015

s 66A(2) (rep)(a)

Aggravated sexual intercourse — child under 10 yrs

1.1.2009 –

28.6.2015

 

Circumstances of aggravation in s 66A(3) amended 19.5.2009

yes

Life

 

SNPP

15 yrs

 

1.1.2009 – 28.6.2015

s 66A (rep)(a)

Sexual intercourse — child under 10 yrs

23.3.1986 –

31.12.2008

yes

25 yrs

1.2.2003 – 31.12.2008

 

20 yrs

23.3.1986 – 31.1.2003

 

SNPP

15 yrs

1.2.2003 – 31.12.2008

s 66B(a)

Attempting, or assaulting with intent, to have sexual intercourse with child under 10 yrs

23.3.1986 –

yes

25 yrs

1.2.2003 –

 

20 yrs

23.3.1986 – 31.1.2003

 

SNPP

10 yrs

29.6.2015 –

 

Sentencing Bench Book

[17-480]

 

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

s 66C(1)

Sexual intercourse — child between 10 and 14 yrs

13.6.2003 –

yes

16 yrs

 

SNPP

7 yrs

29.6.2015 –

 

[Offence package]

[Recent law]

 

Sentencing Bench Book

[17-490]

 

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

 

Articles

[(2007) 19(8) JOB 68] Criminal law update 2007 — Child sexual offences (J Howie)

 

[(2006) 18(2) JOB 9] Multidisciplinary forum on child sexual assault trials (B Knox)

 

[(2006) 18(2) JOB 12] Minimising the impact of the court process on child victims: learning together (B Debus)

 

Research

[Research Monograph No 25, October 2004] Sentencing offenders convicted of child sexual assault

s 66C(1) (rep)(b)

Sexual intercourse — child between 10 and 16 yrs

23.3.1986 –

12.6.2003

yes

8 yrs

s 66C(2)

Aggravated sexual intercourse — child between 10 and 14 yrs

13.6.2003 –

 

Circumstances of aggravation in s 66C(5) amended 15.2.2008

 

Amended 1.12.2008

 

Amended 1.1.2009

 

Amended 19.5.2009

yes

20 yrs

 

SNPP

9 yrs

29.6.2015 –

s 66C(2) (rep)

Sexual intercourse — child between 10 and 16 yrs by person in authority

23.3.1986 –

12.6.2003

yes

10 yrs

s 66C(3)

Sexual intercourse — child between 14 and 16 yrs

13.6.2003 –

yes

10 yrs

s 66C(4)

Aggravated sexual intercourse — child between 14 and 16 yrs

13.6.2003 –

 

Circumstances of aggravation in s 66C(5) amended 15.2.2008

 

Amended 1.12.2008

 

Amended 1.1.2009

 

Amended 19.5.2009

yes

12 yrs

 

SNPP

5 yrs

29.6.2015 –

s 66D Assault with intent to have sexual intercourse – child between 10 and 16 1.12.2018 – yes same penalty as for s 66C [Recent law]

s 66D(b)

(old)

Attempting, or assaulting with intent, to have sexual intercourse with child between 10 and 16 yrs

23.3.1986 –

30.11.2018

yes

Same penalty as for s 66C

Cases

[CCA summaries]

 

Statistics

[District and Supreme Courts]

[Children’s Court]

s 66DA Sexual touching – child under 10 1.12.2018 – yes

16 yrs

 

SNPP

8 yrs

1.12.2018 –

[Recent law]
s 66DB Sexual touching – child between 10 and 16 1.12.2018 – yes 10 yrs [Recent law]
s 66DC Sexual act – child under 10 1.12.2018 – yes 7 yrs [Recent law]
s 66DD Sexual act – child between 10 and 6 1.12.2018 – yes 2 yrs [Recent law]
s 66DE Aggravated sexual act – child between 10 and 16 1.12.2018 – yes 5 yrs [Recent law]
s 66DF Sexual act for production of child abuse material – child under 16 1.12.2018 – yes 10 yrs [Recent law]
s 66EA(1) Persistent sexual abuse of a child 1.12.2018 – yes Life imprisonment [Recent law]

s 66EA(1)(a)

(old)

Persistent sexual abuse of a child

15.1.1999 –

30.11.2018

 

Wording of s 66EA(12) amended 1.10.2001

yes

25 yrs

Sentencing Bench Book

[17-500]

 

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

s 66EB(2)(a)

Procuring child for unlawful sexual activity — child under 14 yrs

18.1.2008 –

yes

15 yrs

 

SNPP

6 yrs

29.6.2015 –

 

Sentencing Bench Book

[17-535]

 

Cases

[CCA summaries]

 

Statistics

[District and Supreme Courts]

s 66EB(2)(b)

Procuring a child for unlawful sexual activity — child 14 – 16 yrs

18.1.2008 –

yes

12 yrs

 

SNPP

5 yrs

29.6.2015 –

 

s 66EB(2A)

Meeting child following grooming — child under 14 yrs

1.1.2009 –

yes

15 yrs

 

SNPP

6 yrs

29.6.2015 –

 

s 66EB(2A)

Meeting child following grooming — child 14 – 16 yrs

1.1.2009 –

yes

12 yrs

 

SNPP

5 yrs

29.6.2015 –

 

s 66EB(3)(a)

Grooming a child for unlawful sexual activity — child under 14 yrs

18.1.2008 –

yes

12 yrs

 

SNPP

5 yrs

29.6.2015 –

 

s 66EB(3)(b)

Grooming a child for unlawful sexual activity — child 14 – 16 yrs

18.1.2008 –

yes

10 yrs

 

SNPP

4 yrs

29.6.2015 –

 

s 66EC Grooming a person for unlawful sexual activity with a child under the person’s authority 1.12.2018 – yes 6 yrs (child under 14) 5 years (any other case) [Recent law]
s 66F(2) Sexual offences — cognitive impairment Sexual intercourse: person responsible for care

1.12.2008 –

 

Defence in s 66F(7) amended 24.9.2012

yes 10 yrs

Criminal Trial Courts Bench Book

 

Suggested direction

[5-1710]

 

Commentary

[5-1700] [5-1705]

 

Sentencing Bench Book

[20-710]

 

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

s 66F(2) (old) Sexual intercourse with person with intellectual disability

21.2.1988 –

30.11.2008

yes 10 yrs

Criminal Trial Courts Bench Book

 

Suggested direction

[5-1740]

 

Commentary

[5-1730] [5-1760]

 

Sentencing Bench Book

[20-710]

 

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

s 66F(3) Sexual offences — cognitive impairment Sexual intercourse: taking advantage of impairment

1.12.2008 –

 

Defence in s 66F(7) amended 24.9.2012

yes 8 yrs

Criminal Trial Courts Bench Book

 

Suggested direction

[5-1720]

 

Commentary

[5-1700] [5-1705]

 

Sentencing Bench Book

[20-710]

 

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

s 66F(3) (old) Sexual intercourse with person with intellectual disability — taking advantage of the other person’s vulnerability to sexual exploitation

21.2.1988 –

30.11.2008

yes 8 yrs

Criminal Trial Courts Bench Book

 

Suggested direction

[5-1750]

 

Commentary

[5-1730] [5-1760]

 

Sentencing Bench Book

[20-710]

 

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

s 66F(4) Sexual offences — cognitive impairment Attempts

1.12.2008 –

 

Defence in s 66F(7) amended 24.9.2012

yes Same penalty as for principal offence
s 66F(4) (old) Sexual intercourse with person with intellectual disability — attempts

21.2.1988 –

30.11.2008

yes Same penalty as for principal offence

s 67 (rep)

Carnally know girl under 10 yrs

31.10.1900 –

22.3.1986

yes

Life

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

s 68 (rep)

Attempt to carnally know girl under 10 yrs

31.10.1900 –

22.3.1986

yes

14 yrs

Cases

[CCA summaries]

 

Statistics

[District and Supreme Courts]

s 71 (rep)(b)

Carnally know girl between 10 and 16 yrs

1.10.1924 –

22.3.1986

yes

10 yrs

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

s 72 (rep)(b)

Attempt, or assault with intent to carnally know girl between 10 and 16 yrs

1.10.1924 –

22.3.1986

yes

5 yrs

Cases

[CCA summaries]

s 73(1)

Sexual intercourse with child above 16 yrs and under 17 yrs under special care

13.6.2003 –

 

Wording of s 73(3) amended 24.9.2012

yes

8 yrs

Sentencing Bench Book

[17-530]

 

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

 

Research

[Research Monograph No 25, October 2004] Sentencing offenders convicted of child sexual assault

s 73(2)

Sexual intercourse with child above 17 yrs and under 18 yrs under special care

13.6.2003 –

Wording of s 73(3) amended 24.9.2012

yes

4 yrs

s 73 (rep)

Carnal knowledge by teacher, father, stepfather with girl 10 yrs or over and under 17 yrs who is pupil, daughter, stepdaughter

1.10.1924 –

22.3.1986

yes

14 yrs

s 73 (old)

Carnal knowledge by teacher, father, stepfather with girl 16 yrs who is pupil, daughter, stepdaughter

23.3.1986 –

31.8.1987

yes

8 yrs

s 73 (old)

Carnal knowledge by teacher, father, stepfather with girl 16 yrs or over and under 17 yrs who is pupil, daughter, stepdaughter

1.9.1987 –

12.6.2003

yes

8 yrs

s 73A Sexual touching – young person between 16 and 18 under special care 1.12.2018 – yes

4 yrs (child aged 16)

2 yrs (child aged 17)

[Recent law]

s 74 (old)

Attempted carnal knowledge by teacher, father, stepfather with girl 10 yrs or over and under 17 yrs who is pupil, daughter, stepdaughter

1.10.1924 –

22.3.1986

yes

7 yrs

Cases

[CCA summaries]

s 74 (old)

Attempted carnal knowledge by teacher, father, stepfather with girl 16 yrs who is pupil, daughter, stepdaughter

23.3.1986 –

31.8.1987

yes

8 yrs

s 74 (rep)

Attempted carnal knowledge by teacher, father, stepfather with girl 16 yrs or over and under 17 yrs who is pupil, daughter, stepdaughter

1.9.1987 –

12.6.2003

yes

8 yrs

s 76 (rep)(b)

Indecent assault — female under 16 yrs

1.10.1924 –

13.7.1981

yes

6 yrs

2.8.1974 – 13.7.1981

 

5 yrs

1.10.1924 – 1.8.1974

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

s 76A (rep)

Commit act of indecency — girl under 16 yrs

2.8.1974 –

13.7.1981

yes

2 yrs

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

s 78A(1)

Incest — Sexual intercourse with close family member who is of or above the age of 16 yrs

13.6.2003 –

yes

8 yrs

Sentencing Bench Book

[20-730]

 

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

s 78A (old)

Incest: carnal knowledge by male of mother, sister, daughter or granddaughter.

1.10.1924 –

22.3.1986

yes

7 yrs

s 78A (rep)

Incest: carnal knowledge by male of female of or above the age of 16 yrs who is mother, sister, daughter or granddaughter

23.3.1986 –

12.6.2003

yes

7 yrs

s 78B Attempt offence under s 78A

1.10.1924 –

 

Wording amended 6.11.1951

 

Amended 13.6.2003

yes 2 yrs

Sentencing Bench Book

[20-730]

s 78H (rep)(a)(d)

Homosexual intercourse — male under 10 yrs

8.6.1984 –

31.1.2003

yes

25 yrs

12.1.1990 – 31.1.2003

 

Life

8.6.1984 – 11.1.1990

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

 

Research

[Research Monograph No 25, October 2004] Sentencing offenders convicted of child sexual assault

s 78I (rep)(d)

Attempt or assault with intent to have homosexual intercourse — male under 10 yrs

8.6.1984 –

31.1.2003

yes

14 yrs

Cases

[CCA summaries]

s 78K (rep)(b)(d)

Homosexual intercourse — male under between 10 and 18 yrs

8.6.1984 –

12.6.2003

yes

10 yrs

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

s 78L (rep)(b)(d)

Attempt, or assault male between 10 and 18 yrs with intention to have homosexual intercourse

8.6.1984 –

12.6.2003

yes

5 yrs

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

s 78N (rep)(d)

Homosexual intercourse by a teacher, father, stepfather, with male between 10 and 18 yrs being pupil, son or stepson

8.6.1984 –

12.6.2003

yes

14 yrs

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

s 78O (rep)(d)

Teacher, father, stepfather attempt, or assault pupil, etc, between 10 and 18 yrs with intention to have homosexual intercourse

8.6.1984 –

12.6.2003

yes

7 yrs

Cases

[CCA summaries]

[Advance notes]

s 78Q(1) (rep)(d)

Male commit act of gross indecency with male under 18 yrs

8.6.1984 –

12.6.2003

 

Wording amended 3.5.1992

yes

2 yrs

Cases

[CCA summaries]

[Advance notes]

s 78Q(2) (rep)(d)

Solicit, procure, incite or advise male under 18 yrs to commit act of gross indecency

8.6.1984 –

12.6.2003

 

Wording amended 3.5.1992

yes

2 yrs

s 79 (rep)

Buggery

1.10.1924 –

7.6.1984

yes

14 yrs

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

 

Research

[Research Monograph No 25, October 2004] Sentencing offenders convicted of child sexual assault

s 80 (rep)

Attempted buggery

1.10.1924 –

7.6.1984

 

Wording amended 6.11.1951

yes

5 yrs

Cases

[CCA summaries]

[Advance notes]

ss 80A(2A), (1)(d)(a)

Aggravated sexual assault by forced self-manipulation — victim under 16 yrs

24.3.2004 –

yes

20 yrs

Sentencing Bench Book

[15-050] [20-720]

 

Cases

[CCA summaries]

 

Statistics

[District and Supreme Courts]

ss 80A(2A), (1)(e)(a)

Aggravated sexual assault by forced self-manipulation — victim under authority of offender

24.3.2004 –

yes

20 yrs

s 80A(2) (rep)(a)

Sexual assault forced self-manipulation victim under 10 yrs

17.3.1991 –

23.3.2004

 

Wording amended 1.10.1996

yes

20 yrs

s 80A(2) (rep)

Sexual assault forced self-manipulation victim over 10 yrs

17.3.1991 –

23.3.2004

 

Wording amended 1.10.1996

yes

14 yrs

s 80D(2)

Aggravated causing sexual servitude — victim under 18 yrs

22.3.2002 –

yes

20 yrs

1.1.2009 –

 

19 yrs

22.3.2002 – 31.12.2008

Sentencing Bench Book

[17-540]

s 80E(2)

Aggravated conduct of business involving sexual servitude — victim under 18 yrs

22.3.2002 –

yes

19 yrs

Criminal Trial Courts Bench Book

[4-080]ff

s 80G

Incitement to commit sexual offence

1.1.2009 –

yes

As for substantive offence

Sentencing Bench Book

[17-545]

s 81 (rep)

Indecent assault upon a male person

31.10.1900 –

7.6.1984

yes

5 yrs

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

s 81A (rep)

Act of indecency by male with male

14.4.1955 –

7.6.1984

yes

2 yrs

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

s 81B(1) (rep)

Solicit or entice offence under ss 79, 81 or 81A

14.4.1955 –

7.6.1984

yes

1 yr

s 91D(1)

Promoting or engaging in acts of child prostitution — child 14 yrs or over

12.2.1989 –

yes

10 yrs

 

Sentencing Bench Book

[17-540] [17-545] [17-570]

 

Cases

[CCA summaries]

 

Statistics

[District and Supreme Courts]

s 91D(1)

Promoting or engaging in acts of child prostitution — child under 14 yrs

12.2.1989 –

yes

14 yrs

 

SNPP

6 yrs

29.6.2015 –

 

s 91E(1)

Obtaining benefit from child prostitution — child 14 yrs or over

1.1.2009 –

yes

10 yrs

Sentencing Bench Book

[17-540]

 

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

s 91E(1)

Obtaining benefit from child prostitution — child under 14 yrs

1.1.2009 –

yes

14 yrs

 

SNPP

6 yrs

29.6.2015 –

 

s 91E(1) (old)

Obtaining benefit from child prostitution

12.2.1989 –

31.12.2008

yes

10 yrs

s 91F(1)

Premises not to be used for child prostitution

12.2.1989 –

yes

7 yrs

Sentencing Bench Book

[17-540]

 

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

s 91G(1)

Children not to be used for production of child abuse material — child under 14 yrs

1.1.2005 –

 

Wording amended 17.9.2010

yes

14 yrs

 

SNPP

6 yrs

29.6.2015 –

 

[Offence package]

[Recent law]

 

Sentencing Bench Book

[17-541]

 

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

 

Articles

[(2006) 18(4) JOB 25] Issues facing judges in sentencing online child pornography offenders

 

Research

[Research Monograph No 34, September 2010] Sentencing offenders convicted of child pornography and child abuse material offences

s 91G(1) (rep)

Children not to be used for pornographic purposes — child under 14 yrs

12.2.1989 –

31.12.2004

 

Wording amended 25.1.1998

yes

7 yrs

s 91G(1) (rep)

Children not to be used for pornographic purposes — child 14 yrs or over

12.2.1989 –

31.12.2004

 

Wording amended 25.1.1998

yes

5 yrs

s 91G(2)

Children not to be used for production of child abuse material — child 14 yrs or over

1.1.2005 –

 

Wording amended 17.9.2010

yes

10 yrs

s 91H(2)

Production, dissemination or possession of child abuse material

17.9.2010 –

10 yrs

[Offence package]

[Recent law]

 

Sentencing Bench Book

[17-541]

 

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

[Children’s Court]

 

Articles

[(2006) 18(4) JOB 25] Issues facing judges in sentencing online child pornography offenders

 

Research

[Research Monograph No 34, September 2010] Sentencing offenders convicted of child pornography and child abuse material offences

s 91H(2) (rep)

Possession, production or dissemination of child pornography

1.1.2009 –

16.9.2010

10 yrs

s 91H(2) (rep)

Production, dissemination of child pornography

1.1.2005 –

31.12.2008

10 yrs

s 91H(3) (rep)

Possession of child pornography

1.1.2005 –

31.12.2008

5 yrs

s 316A(1) Concealing child abuse offence 31.8.18 – no 2 yrs
s 316A(4) Soliciting, accepting, or agreeing to any benefit for person or anyone else to conceal child abuse offence under s 316A(1) 31.8.18 – 5 yrs

Criminal Code (Cth)

s 270.7B Forced marriage offences 21.9.2019 – 7 yrs
s 273A.1 Possession of child-like sex dolls 21.9.2019 – 15 yrs [Recent law]

s 471.16 (rep)

Using a postal or similar service for child pornography material

15.4.2010 –

21.9.2019

15 yrs

[Offence package]

[Recent law]

 

Sentencing Bench Book

[17-541]

 

Articles

[(2006) 18(4) JOB 25] Issues facing judges in sentencing online child pornography offenders

 

Research

[Research Monograph No 34, September 2010] Sentencing offenders convicted of child pornography and child abuse material offences

s 471.17 (rep)

Possessing, controlling, producing, supplying or obtaining child pornography material for use through a postal or similar service

15.4.2010 –

21.9.2019

15 yrs

s 471.19

Using a postal or similar service for child abuse material

15.4.2010 –

15 yrs

s 471.20

Possessing, controlling, producing, supplying or obtaining child abuse material for use through a postal or similar service

15.4.2010 –

15 yrs

s 471.22

Aggravated offence—offence involving conduct on 3 or more occasions and 2 or more people

15.4.2010 –

25 yrs

s 474.19

Using a carriage service for child pornography material

1.3.2005 –

 

Wording amended 15.4.2010

10 yrs

1.3.2005 – 14.4.2010

 

15 yrs

15.4.2010 –

[Offence package]

[Recent law]

 

Sentencing Bench Book

[17-541]

 

Cases

[CCA summaries]

 

Statistics

[District and Supreme Courts]

[Children’s Court]

 

Articles

[(2006) 18(4) JOB 25] Issues facing judges in sentencing online child pornography offenders

 

Research

[Research Monograph No 34, September 2010] Sentencing offenders convicted of child pornography and child abuse material offences

s 474.20

Possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service

1.3.2005 –

10 yrs

1.3.2005 – 14.4.2010

 

15 yrs

15.4.2010 –

[Offence package]

[Recent law]

 

Sentencing Bench Book

[17-541]

 

Statistics

[District and Supreme Courts]

 

Articles

[(2006) 18(4) JOB 25] Issues facing judges in sentencing online child pornography offenders

 

Research

[Research Monograph No 34, September 2010] Sentencing offenders convicted of child pornography and child abuse material offences

s 474.22

Using a carriage service for child abuse material

1.3.2005 –

 

Wording amended 15.4.2010

10 yrs

1.3.2005 – 14.4.2010

 

15 yrs

15.4.2010 –

s 474.22A Possessing or controlling child abuse material obtained or accessed using a carriage service 21.9.2019 15 years

s 474.23

Possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service

1.3.2005 –

10 yrs

1.3.2005 – 14.4.2010

 

15 yrs

15.4.2010 –

s 474.24A

Aggravated offence—offence involving conduct on 3 or more occasions and 2 or more people

15.4.2010 –

25 yrs

[Offence package]

 

Sentencing Bench Book

[17-541]

Customs Act 1901 (Cth)

s 233BAB

Importing or exporting child pornography/child abuse material

(NB. The definition of “child pornography” is also repealed from the Customs Act 1901 (Cth), s 233BAB(3), and the definition of “child abuse material” under s 233BAB(4) consequently expanded from 21/9/19.

26.5.2000 –

10 yrs and/or 2500 pu(e)

[Offence package]

[Recent law]

 

Sentencing Bench Book

[17-541]

 

Articles

[(2006) 18(4) JOB 25] Issues facing judges in sentencing online child pornography offenders

 

Research

[Research Monograph No 34, September 2010] Sentencing offenders convicted of child pornography and child abuse material offences


[1-010] Sexual offences — other

Table 2 contains current sexual offences in the Crimes Act 1900 other than those which specifically refer to children (see Table 1 at [1-000]). It sets out the maximum penalties (on indictment) for each of these offences and specifies those which attract a SNPP. It also specifies whether offences are “prescribed sexual offences” and/or “serious children’s indictable offences”. As with Table 1, links are provided in Table 2 to Judicial Commission resources.

Table 2: Sexual offences — other

Section

Offence

Operation

Prescribed sexual offence

Max penalty

and SNPP

Further resources

Crimes Act 1900

s 61I

 

See also s 61U

Sexual assault

17.3.1991 –

yes

14 yrs

 

SNPP

7 yrs

1.2.2003 –

[Offence package]

[Recent law]

 

Criminal Trial Courts Bench Book

 

Suggested directions

[4-215] [4-222] [4-227] [4-237] [4-240] [4-232] [5-1550] [5-1566] [5-1590]

 

Commentary

[1-342] [4-210] [4-220] [4-225] [4-235] [4-230] [5-1565] [5-1568]

 

Sentencing Bench Book

[7-890]ff [20-620] [20-640] [20-650]

 

Cases

[CCA summaries]

[Advance notes]

[SNPP appeals]

 

Statistics

[District and Supreme Courts]

[Children’s Court]

 

Articles

[(2012) 24(10) JOB 81] After Muldrock — sentencing for standard non-parole period offences in NSW (RA Hulme)

 

[(2012) 24(1) JOB 1] The diminished role of standard non-parole periods (H Donnelly)

 

[(2008) 20(1) JOB 1] Recent statutory reform of consent in sexual offences (L Wells)

 

[(2002) 14(2) JOB 9] Aggravated sexual assault in company: A brief overview of the new legislation (R Johns and G Griffith)

 

Research

[Research Monograph No 33, May 2010] The impact of the standard non-parole period sentencing scheme on sentencing patterns in New South Wales

 

[Research Monograph No 29, March 2007] Full-time imprisonment in New South Wales and other jurisdictions

 

[Research Monograph No 25, October 2004] Sentencing offenders convicted of child sexual assault

 

[Sentencing Trends & Issues No 41, December 2012] Common offences in the NSW higher courts: 2010

 

[Sentencing Trends & Issues No 36, November 2007] Trends in the use of full-time imprisonment 2006–2007

s 61J(1)(a)

 

See also s 61U

Aggravated sexual assault

17.3.1991 –

 

Circumstances of aggravation in s 61J(2) amended 15.2.2008

 

Amended 1.12.2008

 

Amended 1.1.2009

 

Wording in s 61J(3) amended 22.2.2010

yes

20 yrs

 

SNPP

10 yrs

1.2.2003 –

[Offence package]

[Recent law]

 

Criminal Trial Courts Bench Book

 

Suggested directions

[4-215] [4-222] [4-227] [4-237] [4-240] [4-232] [5-1550] [5-1566] [5-1570] [5-1585] [5-1590]

 

Commentary

[1-342] [4-080]ff [4-210] [4-220] [4-225] [4-235] [4-230] [5-1565] [5-1568]

 

Sentencing Bench Book

[7-890]ff [17-505] [20-830]

 

Cases

[CCA summaries]

[Advance notes]

[SNPP appeals]

 

Statistics

[District and Supreme Courts]

[Children’s Court]

 

Articles

[(2012) 24(10) JOB 81] After Muldrock — sentencing for standard non-parole period offences in NSW (RA Hulme)

 

[(2012) 24(1) JOB 1] The diminished role of standard non-parole periods (H Donnelly)

 

[(2008) 20(1) JOB 1] Recent statutory reform of consent in sexual offences (L Wells)

 

[(2002) 14(2) JOB 9] Aggravated sexual assault in company: A brief overview of the new legislation (R Johns and G Griffith)

 

Research

[Research Monograph No 33, May 2010] The impact of the standard non-parole period sentencing scheme on sentencing patterns in New South Wales

 

[Research Monograph No 29, March 2007] Full-time imprisonment in New South Wales and other jurisdictions

 

[Research Monograph No 27, June 2005] Crown appeals against sentence

 

[Sentencing Trends & Issues No 41, December 2012] Common offences in the NSW higher courts: 2010

 

[Sentencing Trends & Issues No 36, November 2007] Trends in the use of full-time imprisonment 2006–2007

 

[Sentencing Trends & Issues No 30, March 2004] Common offences and the use of imprisonment in the District and Supreme Courts in 2002

s 61JA(1)(a)

Aggravated sexual assault in company

1.10.2001 –

 

Wording amended 15.2.2008

yes

Life

 

SNPP

15 yrs

1.2.2003 –

Criminal Trial Courts Bench Book

 

Commentary

[4-080]ff [5-1565] [5-1568]

 

Sentencing Bench Book

[7-890]ff [17-500] [20-605] [20-610] [20-620] [20-670] [20-830]

 

Cases

[CCA summaries]

[Advance notes]

[SNPP appeals]

 

Statistics

[District and Supreme Courts]

 

Articles

[(2012) 24(10) JOB 81] After Muldrock — sentencing for standard non-parole period offences in NSW (RA Hulme)

 

[(2012) 24(1) JOB 1] The diminished role of standard non-parole periods (H Donnelly)

 

[(2008) 20(1) JOB 1] Recent statutory reform of consent in sexual offences (L Wells)

 

[(2002) 14(2) JOB 9] Aggravated sexual assault in company: A brief overview of the new legislation (R Johns and G Griffith)

 

Research

[Research Monograph No 33, May 2010] The impact of the standard non-parole period sentencing scheme on sentencing patterns in New South Wales

 

[Research Monograph No 29, March 2007] Full-time imprisonment in New South Wales and other jurisdictions

 

[Research Monograph No 25, October 2004] Sentencing offenders convicted of child sexual assault

 

[Sentencing Trends & Issues No 36, November 2007] Trends in the use of full-time imprisonment 2006–2007

s 61K(a)

Assault with intent to have sexual intercourse

17.3.1991 –

 

Wording amended 15.2.2008

yes

20 yrs

Criminal Trial Courts Bench Book

 

Commentary

[4-080]ff

 

Sentencing Bench Book

[20-680] [20-830]

 

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

 

s 61L

Indecent assault

17.3.1991 –

yes

5 yrs

[Offence package]

 

Criminal Trial Courts Bench Book

 

Suggested directions

[5-660] [5-700]

 

Commentary

[5-650] [5-670] [5-710] [5-1700]

 

Sentencing Bench Book

[17-420] [20-605] [20-690] [20-760] [20-770]

 

Article

P Mizzi, “Balancing prosecution with the right to a fair trial: the child sexual abuse reforms in NSW” (2019) 31(2) JOB 11.

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

[Children’s Court]

s 61M(1)

Aggravated indecent assault

17.3.1991 –

 

Circumstances of aggravation in s 61M(3) amended 1.12.2008

yes

7 yrs

 

SNPP

5 yrs

1.2.2003 –

[Offence package]

[Recent law]

 

Criminal Trial Courts Bench Book

 

Suggested directions

[5-660] [5-680] [5-710]

 

Commentary

[5-650] [5-670] [5-690] [5-700]

 

Sentencing Bench Book

[7-890]ff [17-510]

 

Cases

[CCA summaries]

[Advance notes]

[SNPP appeals]

 

Statistics

[District and Supreme Courts]

[Children’s Court]

 

Articles

[(2012) 24(10) JOB 81] After Muldrock — sentencing for standard non-parole period offences in NSW (RA Hulme)

 

[(2012) 24(1) JOB 1] The diminished role of standard non-parole periods (H Donnelly)

 

Research

[Research Monograph No 33, May 2010] The impact of the standard non-parole period sentencing scheme on sentencing patterns in New South Wales

 

[Research Monograph No 25, October 2004] Sentencing offenders convicted of child sexual assault

s 61M(2)

Aggravated indecent assault — person under 16 yrs

1.1.2009 –

yes

10 yrs

 

SNPP

8 yrs

s 61M(2) (old)

Aggravated indecent assault — person under 10 yrs

17.3.1991 –

31.12.2008

 

Circumstances of aggravation in s 61M(3) amended 1.12.2008

yes

10 yrs

 

SNPP(c)

8yrs

1.1.2008 – 31.12.2008

5 yrs

1.2.2003 – 31.12.2007

s 61N(2)

Act of indecency — person 16 yrs or above

1.7.1995 –

yes

18 mths

Criminal Trial Courts Bench Book

[5-1700]

 

Sentencing Bench Book

[17-420] [17-500] [17-520] [20-605] [20-770]

 

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

[Children’s Court]

 

Research

[Research Monograph No 25, October 2004] Sentencing offenders convicted of child sexual assault

s 61P(a)

Attempt to commit offence under ss 61I–61O

17.3.1991 –

 

Wording amended 1.10.2001

yes

As for substantive offence

Cases

[CCA summaries]

[Advance notes]

 

Research

[Research Monograph No 25, October 2004] Sentencing offenders convicted of child sexual assault

s 78A(1)

Sexual intercourse with close family member who is of or above the age of 16 yrs

13.6.2003 –

yes

8 yrs

Sentencing Bench Book

[20-730]

 

Cases

[CCA summaries]

[Advance notes]

 

Statistics

[District and Supreme Courts]

s 78M (rep) Homosexual intercourse with idiot or imbecile

6.8.1984 –

21.2.1988

yes 5 yrs

s 80A(2)(a)

Sexual assault by forced self-manipulation

24.3.2004 –

yes

14 yrs

Criminal Trial Courts Bench Book

[4-080]ff

 

Sentencing Bench Book

[15-050] [20-720]

 

Cases

[CCA summaries]

 

Statistics

[District and Supreme Courts]

s 80A(2A)(a)

Aggravated sexual assault by forced self-manipulation

24.3.2004 –

 

Circumstances of aggravation in s 80A(1) amended 15.2.2008

 

Amended 1.12.2008

yes

20 yrs

s 80D(2)

Aggravated causing sexual servitude — victim under 18 yrs

22.3.2002 –

yes

20 yrs

1.1.2009 –

19 yrs

22.3.2002 – 31.12.2008

Criminal Trial Courts Bench Book

[4-080]ff

 

Sentencing Bench Book

[17-540]

s 80E(2)

Aggravated conduct of business involving sexual servitude — victim under 18 yrs

22.3.2002 –

yes

19 yrs

Criminal Trial Courts Bench Book

[4-080]ff

s 80G

Incitement to commit sexual offence

1.1.2009 –

yes

As for substantive offence

Sentencing Bench Book

[17-545]

s 86(1)(f)

Kidnapping — basic offence

14.12.2001 –

 

Renumbered from s 85A 21.12.2001

 

Wording amended 24.9.2012

yes

14 yrs

Criminal Trial Courts Bench Book

 

Suggested direction

[5-2010]

 

Commentary

[5-2000]

 

Sentencing Bench Book

[18-700] [18-710] [18-715] [18-740]

 

Research

[Sentencing Trends No 38, June 2009] Sentencing in complicity cases — Part 1: Joint criminal enterprise

 

[Sentencing Trends No 17, July 1998] Kidnapping — Section 90A Crimes Act 1900 (NSW)

s 86(2)(f)

Kidnapping — aggravated offence

14.12.2001 –

 

Renumbered from s 85A 21.12.2001

 

yes

20 yrs

Criminal Trial Courts Bench Book

 

Suggested direction

[5-2020]

 

Commentary

[5-2000]

 

Sentencing Bench Book

[18-700] [18-710] [18-715] [18-720] [18-730] [18-740]

 

Research

[Sentencing Trends No 38, June 2009] Sentencing in complicity cases — Part 1: Joint criminal enterprise

 

[Sentencing Trends No 17, July 1998] Kidnapping — Section 90A Crimes Act 1900 (NSW)

s 86(3)(f)

Kidnapping — specially aggravated offence

14.12.2001 –

 

Renumbered from s 85A 21.12.2001

 

yes

25 yrs

Criminal Trial Courts Bench Book

 

Suggested direction

[5-2030]

 

Commentary

[5-2000]

 

Sentencing Bench Book

[18-700] [18-710] [18-715] [18-720] [18-730] [18-740]

 

Research

[Sentencing Trends No 38, June 2009] Sentencing in complicity cases — Part 1: Joint criminal enterprise

 

[Sentencing Trends No 17, July 1998] Kidnapping — Section 90A Crimes Act 1900 (NSW)

s 90A (rep)(f)

Kidnapping

15.12.1961 –

13.12.2001

yes

20 yrs

 

(if person liberated without substantial injury: 14 yrs)

Criminal Trial Courts Bench Book

 

Commentary

[5-2000]

 

Sentencing Bench Book

[18-740]

 

Statistics

[District and Supreme Court]

 

Research

[Sentencing Trends No 17, July 1998] Kidnapping — Section 90A Crimes Act 1900 (NSW)


[1-020] Sexual offences — alternative verdicts

Table 3 sets out the statutory alternative verdicts available in proceedings for sexual offences.

Table 3: Sexual offences — alternative verdicts

Offence charged

Alternative verdict(s)

Empowering provision

Criminal Procedure Act 1986

Any indictable offence

Attempt

s 162

Crimes Act 1900

s 61I

ss 66C(3) or 66C(4)

s 66F

ss 78A or 78B

s 80AB(2)

s 80AB(5)

s 80AB(4)

s 61J

s 61I

ss 66A or 66C

s 66F

ss 78A or 78B

s 80AB(1)

s 80AB(3)

s 80AB(5)

s 80AB(4)

s 61JA

ss 61I or 61J

ss 66A or 66C

s 66F

s 80AB(1A)

s 80AB(3)

s 80AB(5)

s 61M

s 61L

s 80AB(1)

s 61O

s 61N

s 80AB(1)

s 61O(2A)

ss 61O(2) or 61N

s 80AB(6)

s 66A

ss 66B, 66C(1), 66C(2), 66C(3), 66C(4) or 66D

s 66E(1)

s 66C

s 66D

s 66E(5)

s 66C(1)

ss 66C(3) or 66C(4)

s 66E(4)

s 66C(2)

ss 66C(3) or 66C(4)

ss 66C(1) or 66C(3)

s 66E(4)

s 66E(3)

s 66C(4)

ss 66C(1) or 66C(3)

s 66E(3)

s 66EA

“sexual” offence as defined in s 66E(12)

s 66EA(10)

s 80D(2)

s 80D(1)

s 80F

s 80E(2)

s 80E(1)

s 80F

Criminal Code (Cth)

s 471.22(1)

ss 471.16, 471.17, 471.19 or 471.20

s 471.23

s 474.24A(1)

ss 474.19, 474.20, 474.22 or 474.23

s 474.24B


As to the power of the jury to return an alternative verdict to any offence stated in the indictment at common law, see Criminal Trial Courts Bench Book at [2-200] and ff.

[1-025] Sexual offences — Brief legislative history

The following discussion briefly describes the significant reforms to the laws relating to sexual assault in the past 30 years. This material previously appeared in Sentencing Bench Book at [20-605].

Crimes Amendment Act 1989

This amending Act, which commenced on 17 March 1991, repealed ss 61A–61G and inserted ss 61H, 61I, 61J, 61L, 61M, 61N, 61O and 61P. Maximum penalties for sexual offences were also substantially increased (see below). Parliament recognised the particular vulnerability of children less than 10 years of age by increasing the penalties for aggravated indecent assault and acts of indecency. Section 61I created the offence of sexual intercourse without consent and s 61J the same offence but in circumstances of aggravation. The Criminal Legislation (Amendment) Act 1992 amended the definition of sexual intercourse as defined in s 61H to include penetration, to any extent, of the genitalia of a female person or the anus of any person.

Crimes Amendment (Aggravated Sexual Assault in Company) Act 2001

This amending Act, which commenced on 1 October 2001, created the offence of aggravated sexual assault in company under s 61JA with a maximum penalty of life imprisonment.

Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002

This amending Act repealed ss 78H and 78I — homosexual intercourse with a child under 10 years and attempt to commit that offence. It replaced each with gender neutral offences under ss 66A and 66B. The maximum penalties were increased from 20 years to 25 years. The Act also introduced standard non-parole periods for offences under ss 61I, 61J, 61JA, 61M(1), 61M(2) and 66A.

Crimes Amendment (Sexual Offences) Act 2003

This amending Act standardised the age of consent for both males and females at 16 years and amended the Crimes Act 1900 by inserting a new range of offences relating to sexual intercourse with a child aged between 10 and 16 years consisting of two offences: sexual intercourse with a child of or above the age of 10 and under 14 years and sexual intercourse with a child who is of or above 14 and under 16 years. Basic and aggravated forms of the offence were created.

See further, Sentencing Bench Book — Sexual offences against children at [17-420].

Crimes (Serious Sex Offenders) Act 2006

This Act created a statutory scheme for applications by the Attorney General (NSW) for the extended supervision and continuing detention of persons convicted of a “serious sexual offence” after their sentence has expired. The fact that an application might be made in the future by the Attorney General is not relevant to the determination of a non-parole period: MG v R [2008] NSWCCA 4 at [64]–[79]. The fact that the offender has or may become the subject of an order under the Act is not a matter of mitigation at sentence: s 24A(1) Crimes (Sentencing Procedure) Act 1999.

Crimes Amendment (Consent—Sexual Assault Offences) Act 2007

This amending Act inserted a new definition of consent for the purposes of offences under ss 61I, 61J, and 61JA Crimes Act, effective 1 January 2008. This is discussed in the Criminal Trial Courts Bench Book in Sexual intercourse without consent at [5-1568].

Crimes Amendment Act 2007

This amending Act, which commenced on 15 February 2008, replaced the term “malicious” with the modern fault element of “intention or recklessness” in offences under ss 61J, 61JA, 61K, 66C, 80A and 95.

Crimes Amendment (Sexual Procurement or Grooming of Children) Act 2007

This amending Act, which commenced on 18 January 2008, created offences under s 66EB of intentionally procuring a child for unlawful sexual activity. See Sexual offences against children at [17-535].

Crimes Amendment (Sexual Offences) Act 2008

This amending Act, which commenced on 1 January 2009, created several new sexual offences:

  • s 61O(2A): aggravated act of indecency offence where the act of indecency is filmed for the purposes of producing child pornography — maximum penalty of 10 years imprisonment

  • s 66A(2): aggravated offence of having sexual intercourse with a child under the age of 10 years — maximum penalty of life imprisonment. The circumstances of aggravation are set out in ss 66A(3)(a)–(h)

  • ss 66EB(2A) and (2B): grooming offences — maximum penalty of 15 years imprisonment where the child involved is under 14 years of age, and 12 years imprisonment in any other case

  • s 80G: inciting a person to commit a sexual offence

  • ss 91I–91M: offences of voyeurism and related offences.

The amending Act also increased maximum penalties for some offences:

  • s 61M (aggravated indecent assault against a child aged under 16 years): maximum penalty increased from 7 to 10 years imprisonment

  • s 91E(1) (benefits derived from child prostitution): maximum penalty increased from 10 to 14 years imprisonment

  • s 91H(2) (possessing child pornography): maximum penalty increased from 5 to 10 years imprisonment.

Crimes Legislation Amendment (Child Sex Offences) Act 2015

This amending Act, which commenced on 29 June 2015, repealed the existing basic and aggravated offences of sexual intercourse with a child under 10 under ss 66A(1) and 66A(2) respectively (as implemented by the Crimes Amendment (Sexual Offences) Act 2008). The provisions were replaced by one consolidated s 66A offence, carrying a maximum penalty of life imprisonment. The Act also introduced standard non-parole periods for 13 child sex offences, including under ss 66B, 66C(1), 66C(2) and 66C(4).

Crimes Amendment (Intimate Images) Act 2017 (No 29)

The amending Act, which commenced 25 August 2017, created new offences to address the non-consensual sharing of intimate images (also known as revenge porn). New ss 91P–91R created personal violence offences for a person to intentionally record or distribute, or threaten to record or distribute, an intimate image of another person without that person’s consent. Each new offence has a maximum penalty of 100 penalty units, or imprisonment for three years.

Criminal Legislation Amendment (Child Sexual Abuse) Act 2018

The amending Act, relevant sections of which commenced on 1 December 2018 substituted the former s 61HA with a new s 61HA which defines “sexual intercourse” for the purpose of Pt 3, Div 10 of the Crimes Act 1900.

The new consent provision, s 61HE, inserted and expanded the definition of consent to “sexual activity” in the Crimes Act 1900 to include sexual intercourse, sexual touching or a sexual act and applies to offences under under ss 61I, 61J, 61JA, 61KC, 61KD, 61KE and 61KF. This section also expanded “knowledge of consent” to include the incitement of the alleged victim or inciting a third person to engage in sexual activity with or towards the alleged victim.

Sections 61L, 61M, 61N, 61O and 61P were repealed with effect from 1 December 2018, although these provisions continue to apply to offences committed or alleged to have been committed before 1 December 2018.

The indecent assault and act of indecency offences found in the former ss 61L-61O were repealed and replaced with offences of sexual touching and sexual acts without consent and sexual touching and sexual acts involving children as follows:

Repealed offences

New offences: subdivis 3-4

New child specific offences: subdivs 6-7

Indecent assault: s 61L

[5 years]

Sexual touching: s 61KC

[5 years]

Sexual touching – child under 10: s 66DA

[16 years; SNPP 8 years]

Sexual touching – child between 10 and 16: s 66DB

[10 years]

Aggravated indecent assault: s 61M

[7 years; SNPP 5 years]

[10 years — victim under 16; SNPP 8 years]

Aggravated sexual touching: s 61KD

[7 years; SNPP 5 years]

Act of indecency: s 61N

[18 months]

[2 years — victim under 16]

Sexual act: s 61KE

[18 months]

Sexual act – child under 10: s 66DC

[7 years]

Sexual act – child between 10 and 16: s 66DD

[2 years]

Aggravated sexual act – child between 10 and 16: s 66DE

[5 years]

Sexual act for production of child abuse material – child under 16: s 66DF

[10 years]

Aggravated act of indecency: s 61O [3 years] [5 years — victim under 16] [7 years — victim under 10]

Aggravated sexual act: s 61KF [3 years]

Section 66EA (persistent sexual abuse of a child) was repealed and replaced: Sch 1[20]. Under the new provision:

  • an adult who maintains an unlawful sexual relationship with a child (where an adult engages in 2 or more unlawful sexual acts with or towards a child over any period) is guilty of an offence: s 66EA(1), s 66EA(2)

  • the maximum penalty is life imprisonment

  • a child is someone “under the age of 16 years”: s 66EA(15).

The jury must be satisfied beyond reasonable doubt that the unlawful sexual relationship existed: s 66EA(5)(a). The jury is no longer required to agree on which unlawful sexual acts constituted the unlawful sexual relationship: s 66EA(5)(c). The new provision extends to a relationship that existed wholly or partly before 1 December 2018 provided the accused’s acts were unlawful sexual acts during the period the relationship existed: s 66EA(7).

The offence of grooming a child under s 66EB(3) was expanded to include circumstances where an adult provides a child with “any financial or other material benefit” intending to make it easier to procure the child for unlawful sexual activity.

Section 66EC created a new offence of an adult providing a person (other than a child) with a financial or other material benefit intending to make it easier to procure a child under that person’s authority for unlawful sexual activity.

Section 73A created a new offence of sexually touching a young person between 16 and 18 under special care. The maximum penalty is 4 years if the young person is aged 16, and 2 years for a young person aged 17. Section 73A(3) defines a relationship of special care. New s 72B includes definitions of an “authorised carer” and a “member of the teaching staff”.

New s 80AF(1) provides for prosecuting a sexual offence (defined in s 80AF(2)) against a child when:

(a) it is uncertain when during a period an alleged offence occurred (b) the victim was a child for the whole period (c) there was no time during that period that the alleged conduct, if proven, would not have constituted a sexual offence, and (d) because of a change in the law or a change in the child’s age during that period, the alleged conduct, if proven, would have constituted more than one sexual offence.

In such circumstances, a person may be prosecuted in respect of the conduct under whichever sexual offence has the lesser maximum penalty, regardless of when the conduct actually occurred: s 80AF(2).

New s 80AG(1) provides a defence to prosecutions for offences against ss 66C(3), 66DB, 66DD, 73 or 73A if the alleged victim is of or above 14 years old and the age difference between the alleged victim and the accused is no more than 2 years: Sch 1[46]. Where the defence is raised, the prosecution bears the onus of proving beyond reasonable doubt that the alleged victim was less than 14 years old or the age difference was more than 2 years: s 80AG(2).

New s 91HAA provides for an exception to an offence under s 91H of possessing child abuse material where the accused possessed the material when they were under 18 years old and a reasonable person would consider the possession acceptable having regard to the matters identified in s 91HAA(b): sch 1[52].

New s 91HA(9)-(12) provides for additional defences for offences against s 91H:

  • for possession offences, if the only person depicted in the material is the accused: s 91HA(9); and

  • for production or dissemination offences, if the only person depicted in the material is the accused and the production or dissemination occurred when they were under 18: s 91HA(10).

Further resources

  • Criminal Trial Courts Bench Book at [5-​710]ff 5-​1550]ff and [5-1700]ff.

[1-030] Meaning of “sexual intercourse”

Prior to 14 July 1981

Prior to 14 May 1981, sexual assault offences were divided into rape offences and related sexual offences and the term “sexual intercourse” was not defined in the Crimes Act 1900. Under the common law, rape required “carnal knowledge”: penile penetration of the vagina of a woman who was not the accused’s wife without consent: Papadimitropoulos v The Queen (1957) 98 CLR 249 at 261.

Between 14 July 1981 and 30 September 1996

Crimes (Sexual Assault) Amendment Act 1981

The Crimes (Sexual Assault) Amendment Act 1981 commenced operation on 14 July 1981. This Act amended the Crimes Act 1900 by introducing a statutory definition of sexual intercourse:

(a) 

sexual connection occasioned by the penetration of the vagina of any person or the anus of any person by:

(i) 

any part of the body of another person, or

(ii) 

an object manipulated by another person,

except where the penetration is carried out for proper medical purposes

(b) 

sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person

(c) 

cunnilingus, or

(d) 

the continuation of sexual intercourse as defined in paragraph (a), (b) or (c): s 61A(1) (rep).

The amending Act also:

  • abolished the common law offences of rape and attempted rape: s 63 (rep)

  • introduced four categories of sexual assault (according to the degree of seriousness of the offence in terms of the level of violence) with different penalty structures: ss 61B, 61C, 61D and 61E (rep)

  • removed marital immunity: s 61A(4) (rep)

  • removed immunity for children aged under 14 years: s 61A(2) (rep)

  • introduced limitations on the admission of evidence about the complainant’s sexual experience and reputation: s 409B (rep).

Crimes (Amendment) Act 1989

The Crimes (Amendment) Act 1989 commenced operation on 17 March 1991. The Act amended the Crimes Act 1900 by replacing the four categories of sexual assault with a new offence structure: three basic and aggravated forms of offences (sexual assault, indecent assault and act of indecency) and an offence of assault with intent to have sexual intercourse: ss 61I—61P.

The amending Act also:

  • repealed ss 61A—61G

  • re-enacted the definition of “sexual intercourse” in s 61H.

Criminal Legislation (Amendment) Act 1992

The Criminal Legislation (Amendment) Act 1992 commenced operation on 3 May 1992. The Act amended the Crimes Act 1900 by amending the definition of sexual intercourse to include “sexual connection occasioned by the sexual penetration to any extent of the genitalia of a female person or the anus of any person …”: s 61H [emphasis added].

Schedule 1(16) of the amending Act inserted Sch 11, Pt 2 into the Crimes Act 1900. The savings and transitional provisions purported to give retrospective operation to the amended meaning of “sexual intercourse” in s 61H from 14 July 1981:

It is declared that, from 14 July 1981 (being the date of commencement of the amendments made by the Crimes (Sexual Assault) Amendment Act 1981) [the date upon which the definition of sexual intercourse in s 61A came into force] until the commencement of the amendment made by the Criminal Legislation (Amendment) Act 1992 to section, 61H, an act has been an act of sexual intercourse within the meaning of this Act at the relevant time if the act has comprised sexual intercourse within the meaning of section 61H, as amended by the Criminal Legislation (Amendment) Act 1992.

As to the retrospective operation of this provision: see comments by Sully J (Newman AJ agreeing) in R v MJR (2002) 54 NSWLR 368 at [97]:

As her Honour explains, correctly, in her remarks on sentence, that amending legislation “retrospectively converted what was at the time of the commission of the offences indecent assault to the significantly more serious offence of sexual intercourse”.

From 1 October 1996

The Transgender (Anti-Discrimination and Other Acts Amendment) Act 1996, Sch 3[1] commenced operation on 1 October 1996. The Act amended the Crimes Act 1900 by amending the definition of sexual intercourse to include “sexual connection occasioned by the sexual penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of a person …”: s 61H [emphasis added].

From 1 December 2008

The Crimes Amendment (Cognitive Impairment — Sexual Offences) Act 2008 commenced operation on 1 December 2008. The Act amended the Crimes Act 1900 by inserting a new section defining the term “cognitive impairment”: s 61H.

From 1 December 2018

The Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (relevant provisions commenced 1 December 2018) restructures and modernises the language used to describe the sexual offences in Pt 3, Div 10 of the Crimes Act. “Sexual touching” and “sexual act” are defined in the new ss 61HB and 61HC respectively. The definition of “sexual intercourse”, previously in s 61H(1), was inserted into s 61HA.

Meaning of “Sexual touching”

A new offence of “sexual touching” was inserted into the Crimes Act 1900 by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (commenced 1 December 2018). Sexual touching is defined in s 61HB as follows:

(1) For the purposes of this Division, sexual touching means a person touching another person:

(a) with any part of the body or with anything else, or

(b) through anything, including anything worn by the person doing the touching or by the person being touched, in circumstances where a reasonable person would consider the touching to be sexual.

(2) The matters to be taken into account in deciding whether a reasonable person would consider touching to be sexual include:

(a) whether the area of the body touched or doing the touching is the person’s genital area or anal area or (in the case of a female person, or transgender or intersex person identifying as female) the person’s breasts, whether or not the breasts are sexually developed, or

(b) whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification, or

(c) whether any other aspect of the touching (including the circumstances in which it is done) makes it sexual.

(3) Touching done for genuine medical or hygienic purposes is not sexual touching. Transitional provisions state that references in any Act or law to indecent assault are taken to include references to sexual touching, and to acts of indecency are taken to include references to sexual touching and sexual act, within their meanings in Pt 3, Div 10: Sch 1[62].

New s 73A creates a new offence of sexually touching a young person between 16 and 18 under special care: Sch 1[34].

[1-040] Meaning of “consent”

From 17 March 1991

Section 61R was inserted into the Crimes Act 1900 by the Crimes Amendment Act 1989 (commenced 17/3/1991), and read:

61R Consent

(1) For the purposes of sections 61I and 61J, a person who has sexual intercourse with another person without the consent of the other person and who is reckless as to whether the other person consents to the sexual intercourse is to be taken to know that the other person does not consent to the sexual intercourse.

(2) For the purposes of sections 61I and 61J and without limiting the grounds on which it may be established that consent to sexual intercourse is vitiated:

(a) a person who consents to sexual intercourse with another person:

(i) under a mistaken belief as to the identity of the other person, or

(ii) under a mistaken belief that the other person is married to the person, is to be taken not to consent to the sexual intercourse, and

(b) a person who knows that another person consents to sexual intercourse under a mistaken belief referred to in paragraph (a) is to be taken to know that the other person does not consent to the sexual intercourse, and

(c) a person who submits to sexual intercourse with another person as a result of threats or terror, whether the threats are against, or the terror is instilled in, the person who submits to the sexual intercourse or any other person, is to be regarded as not consenting to the sexual intercourse, and

(d) a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.

Section 61R(2)(a1) was inserted in 1992 (by the Criminal Legislation (Amendment) Act 1992, commenced 3.5.1992) as a result of the decision in R v Mobilio [I991] 1 VR 339. The new subsection provided that “a person who consents to sexual intercourse with another person under the mistaken belief that the sexual intercourse is for medical or hygienic purposes is taken not to have consented to the sexual intercourse”. In 2003, the words “(or any other mistaken belief about the nature of the act induced by fraudulent means” were inserted in 61R (2)(a1) (by the Crimes Amendment (Sexual Offences) Act 2003, commenced 13.6.2003).

Section 61R was repealed by the Crimes Amendment (Consent—Sexual Assault Offences) Act 2007, Sch 1[1], commenced 1 January 2008.

From 1 January 2008

Section 61HA was inserted into the Crimes Act 1900 by the Crimes Amendment (Consent – Sexual Assault Offences) Act 2007 (the Act), which commenced 1 January 2008. The amendment followed an extensive review of sexual assault in NSW and the adequacy of existing law. The Criminal Justice Sexual Offences Taskforce Report, published in 2006, contained 70 recommendations. A broad range of government and non-government agencies were represented on the Taskforce including those representing women’s and victims’ interests such as the NSW Rape Crisis Centre and the Women’s Legal Service NSW; judicial officers and the Judicial Commission; the legal profession including members of the Bar Association, the Law Society, NSW Public Defenders Office, the Director of Public Prosecutions; the courts; NSW Police, NSW Health, Department of Community Services and academics. See L Wells, “Recent statutory reform of consent in sexual offences” (2008) 20 JOB 1.

The object of the Act was to amend the Crimes Act 1900 to:

(a) 

create a statutory definition of “consent” as being a free and voluntary agreement to sexual intercourse

(b) 

expand the circumstances when consent to sexual intercourse is negated (vitiated)

(c) 

provide circumstances when consent to sexual intercourse may be negated

(d) 

expand the element of knowledge of consent to also provide an objective fault test that a person commits sexual assault if the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.

From 23 October 2014

The Crimes Legislation Amendment Act 2014 amended s 61HA (commenced 23 October 2014) to apply the statutory definition of consent to attempts to commit sexual assault offences and also negated consent to sexual intercourse in circumstances where consent has been given under a mistaken belief that the sexual intercourse is for health purposes. This expanded the circumstances in section 61HA(5)(c) in which consent is negated, which were then limited to medical or hygienic purposes.

From 1 December 2018

The Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (relevant sections commenced 1 December 2018), substituted the former s 61HA with new s  61HA which defines “sexual intercourse” for the purpose of Pt 3, Div 10. New s 61HE, inserts and expands the definition of consent to “sexual activity” in the Crimes Act 1900 to include sexual intercourse, sexual touching or a sexual act (s 61HE(11)). Section 61HE and applies to offences under ss 61I, 61J, 61JA, 61KC, 61KD, 61KE and 61KF: s 61HE(1) and is no longer limited, as previously, to “sexual intercourse”. The existing consent provision, s 61HA, was repealed.

Subs 61HE(3) has also expanded “knowledge of consent” to include the incitement of the alleged victim or inciting a third person to engage in sexual activity with or towards the alleged victim.

The Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 amends a number of Acts to implement recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse and the Child Sexual Offences Review Team. The Second Reading Speech stated that the amendments aim to “rationalise and consolidate our offence framework and improve the chances of successful prosecution of child sexual offences” (Legislative Assembly, 6 June 2018).



(a)Offence (or form of offence) defined as “serious children’s indictable offence” for the purposes of the Children (Criminal Proceedings) Act 1987, s 3. An offence arising under s 80A in which the victim of the offence was under the age of 10 years when the offence occurred is a “serious children’s indictable offence”: Children (Criminal Proceedings) Regulation 2011, cl 32.

(b)Note s 78 (repealed by the Criminal Legislation (Amendment) Act 1992, Sch 1[5]: effective 2.5.92) which provided that no prosecution for an offence under ss 61E(1), 66C(1), 66D, 71, 72 or 76 could be commenced after the expiration of 12 months from the time of the alleged offence if the girl was at the time of the offence was over the age of 14 yrs and under the age of 16 yrs; and s 78T(1) (also repealed effective 2.5.92) which provided that no prosecution for an offence under ss 78K or 78L could be commenced after the expiration of 12 months from the time of the alleged offence if the girl was at the time of the offence over the age of 16 yrs and under the age of 18 yrs. As to the whether the amending Act ought to be given retrospective operation: see Rodway v The Queen (1990) 169 CLR 515.

(c)As to the application of the amended SNPP see GSH v R [2009] NSWCCA 214 at [46]–[47]; R v Lane [2011] NSWSC 289 at [60]–[61].

(d)No prosecution for an offence under ss 78H, 78I, 78K, 78L, 78M, 78N, 78O or 78Q (all repealed) or for an offence of attempting, or of conspiracy or incitement, to commit an offence under any of those sections shall, if the accused was at the time of the alleged offence under the age of 18 years, be commenced without the sanction of the Attorney General (NSW): Crimes Act 1900, Sch 1, Pt 19[55].

(e)Prior to 10.10.2002 fine expressed in dollars ($250,000).

(f)Although detain for advantage is not technically a sexual offence, it has been included in Table 2 because an intention to have sexual intercourse is an “advantage”: see R v Rowe (1996) 89 A Crim R 467 .