Crimes Amendment (Sexual Offences) Act 2008 (NSW)

An Act to amend the Crimes Act 1900 and other criminal legislation to make further provision with respect to sexual offences, sentencing and other matters.

1Name of Act

This Act is the Crimes Amendment (Sexual Offences) Act 2008.

2Commencement(1)

This Act commences on a day or days to be appointed by proclamation, except as provided by subsection (2).

(2)

Schedule 1 [10] commences on the commencement of Schedule 1 [9] or, if Schedule 1 [1] to the Crimes Amendment (Cognitive Impairment—Sexual Offences) Act 2008 has not commenced when Schedule 1 [9] to this Act commences, on the commencement of Schedule 1 [1] to the Crimes Amendment (Cognitive Impairment—Sexual Offences) Act 2008.

3Amendment of Crimes Act 1900 No 40

The Crimes Act 1900 is amended as set out in Schedule 1.

4Amendment of other Acts and instrument

The Acts and instrument specified in Schedule 2 are amended as set out in that Schedule.

5Repeal of Act(1)

This Act is repealed on the day following the day on which all of the provisions of this Act have commenced.

(2)

The repeal of this Act does not, because of the operation of section 30 of the Interpretation Act 1987, affect any amendment made by this Act.

Schedule 1Amendment of Crimes Act 1900

(Section 3)

[1]Section 61J Aggravated sexual assault

Insert at the end of section 61J (2) (g):

•

, or

(h)

the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or

(i)

the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence.

[2]Section 61J (3)

Insert after section 61J (2):

(3)

In this section, building has the same meaning as it does in Subdivision 4 of Division 1 of Part 4.

[3]Section 61M Aggravated indecent assault

Omit “the age of 10 years” from section 61M (2).

Insert instead “the age of 16 years”.

[4]Section 61M (3) (b)

Omit the paragraph.

[5]Section 61O Aggravated act of indecency

Insert after section 61O (2):

(2A)

A person:

• (a)

  who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under the age of 16 years to an act of indecency with or towards that person or another person, and

• (b)

  who knows that the act of indecency is being filmed for the purposes of the production of child pornography,

is guilty of an offence.

Maximum penalty: imprisonment for 10 years.

[6]Section 61O (3)

Omit “In this section”.

Insert instead “For the purposes subsections (1) and (1A)”.

[7]Section 61O (4)

Insert after section 61O (3):

(4)

For the purposes of subsection (2A):

• (a)

  child pornography has the meaning given by Division 15A, and

• (b)

  an act of indecency is being filmed if one or more images (whether still or moving) of the act of indecency are being recorded or transmitted for the purpose of enabling those images to be observed by any person (whether during the filming or later).

[8]Section 61Q Alternative verdicts

Insert as section 61Q (6):

(6)

If on the trial of a person for an offence under section 61O (2A) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 61O (2) or 61N, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.

[9]Section 66A

Omit the section. Insert instead:

66ASexual intercourse—child under 10(1)

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

Maximum penalty: imprisonment for 25 years.

(2)

Any person who has sexual intercourse with another person who is under the age of 10 years in circumstances of aggravation is guilty of an offence.

Maximum penalty: imprisonment for life.

(3)

In this section, circumstances of aggravation means circumstances in which:

• (a)

  at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or

• (b)

  at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or

• (c)

  the alleged offender is in the company of another person or persons, or

• (d)

  the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or

• (e)

  the alleged victim has a serious physical disability, or

• (f)

  the alleged victim has a serious intellectual disability, or

• (g)

  the alleged offender took advantage of the alleged victim being under the influence of alcohol or a drug in order to commit the offence, or

• (h)

  the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence.

(4)

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

(5)

Nothing in this section affects the operation of section 21 of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life).

(6)

Nothing in this section affects the prerogative of mercy.

(7)

If on the trial of a person charged with another offence against this Act the person is instead found guilty of an offence against this section (as provided by section 61Q), the maximum penalty that may be imposed on the person for the offence against this section is the penalty for the offence charged.

[10]Section 66A (as substituted by this Act)

Omit “serious intellectual disability” from section 66A (3) (f).

Insert instead “cognitive impairment”.

[11]Section 66C Sexual intercourse—child between 10 and 16

Insert at the end of section 66C (5) (g):

•

, or

(h)

the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence.

[12]Section 66E

Omit the section. Insert instead:

66EAlternative verdicts(1)

If on the trial of a person for an offence under section 66A (1) or (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66B, 66C (1), (2), (3) or (4) or 66D, it may find the accused not guilty of the offence charged but guilty of an offence under section 66B, 66C (1), (2), (3) or (4) or 66D. The accused is liable to punishment accordingly.

(2)

If on the trial of a person for an offence under section 66A (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66A (1), it may find the accused not guilty of the offence charged but guilty of an offence under section 66A (1). The accused is liable to punishment accordingly.

(3)

If on the trial of a person for an offence under section 66C (2) or (4) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66C (1) or (3), it may find the accused not guilty of the offence charged but guilty of an offence under section 66C (1) or (3). The accused is liable to punishment accordingly.

(4)

If on the trial of a person for an offence under section 66C (1) or (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66C (3) or (4), it may find the accused not guilty of the offence charged but guilty of an offence under section 66C (3) or (4). The accused is liable to punishment accordingly.

(5)

If on the trial of a person for an offence under section 66C the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 66D, it may find the accused not guilty of the offence charged but guilty of an offence under section 66D. The accused is liable to punishment accordingly.

[13]Section 66EB Procuring or grooming child under 16 for unlawful sexual activity

Omit “or 15” from the definition of unlawful sexual activity in section 66EB (1).

Insert instead “, 15 or 15A”.

[14]Section 66EB (2A) and (2B)

Insert after section 66EB (2):

(2A)

An adult person:

• (a)

  who intentionally meets a child, or travels with the intention of meeting a child, whom the adult person has groomed for sexual purposes, and

• (b)

  who does so with the intention of procuring the child for unlawful sexual activity with that adult person or any other person,

is guilty of an offence.

Maximum penalty:

• (a)

  in the case of a child who is under the age of 14 years—imprisonment for 15 years, or

• (b)

  in any other case—imprisonment for 12 years.

(2B)

For the purposes of subsection (2A), a child has been groomed for sexual purposes by an adult person if, on one or more previous occasions, the adult person has engaged in conduct that exposed the child to indecent material.

[15]Section 66EB (6)

Insert “, (2A)” after “subsection (2)”.

[16]Section 66EB (8)

Insert “or (2A)” after “subsection (2)”.

[17]Section 77 Consent no defence in certain cases

Omit “or 61O (1) or (2), 66A,”.

Insert instead “, 61O (1), (2) or (2A), 66A (1) or (2),”.

[18]Section 80D Causing sexual servitude

Omit “19 years” from the penalty provision to section 80D (2).

Insert instead “20 years”.

[19]Part 3, Division 10B

Insert after Division 10A:

Division 10BIncitement to commit sexual offence80GIncitement to commit sexual offence(1)

A person who incites the commission of an offence under Division 10, 10A or 15A is guilty of an offence and is liable to the penalty provided for the commission of the offence.

(2)

For the person to be guilty, the person must intend that the offence incited be committed.

(3)

A person may be found guilty even if committing the offence incited is impossible.

(4)

Any defences, procedures, limitations or qualifying provisions that apply to the offence incited also apply to an offence under this section.

(5)

It is not an offence to incite the commission of the following offences:

• (a)

  an offence against section 61N or 61O that is constituted by inciting another person to an act of indecency,

• (b)

  an offence against section 61P, 66B, 66D, 66EB, 66F (4), 73 (4), 78B or 80.

[20]Part 3, Division 15, heading

Omit “and pornography”.

[21]Section 91C Definitions

Omit the definition of material.

[22]Section 91E Obtaining benefit from child prostitution

Insert “or, if the act of child prostitution involves a child under the age of 14 years, to imprisonment for 14 years” after “10 years” in section 91E (1).

[23]Section 91E (3)

Insert after section 91E (2):

(3)

The higher maximum penalty under this section in the case of an offence involving a child under the age of 14 years does not apply unless the age of the child is set out in the charge for the offence.

[24]Part 3, Division 15A

Insert before section 91G:

Division 15AChild pornography91FADefinitions

For the purposes of this Division:

child means a person who is under the age of 16 years.

material includes any film, printed matter, electronic data or any other thing of any kind (including any computer image or other depiction).

[25]Section 91H Production, dissemination or possession of child pornography

Omit the definition of child pornography from section 91H (1). Insert instead:

child pornography means material that depicts or describes (or appears to depict or describe), in a manner that would in all the circumstances cause offence to reasonable persons, a person who is (or appears to be) a child:

• (a)

  engaged in sexual activity, or

• (b)

  in a sexual context, or

• (c)

  as the victim of torture, cruelty or physical abuse (whether or not in a sexual context).

[26]Section 91H (1)

Insert in alphabetical order:

produce child pornography includes:

• (a)

  film, photograph, print or otherwise make child pornography, or

• (b)

  alter or manipulate any image for the purpose of making child pornography, or

• (c)

  enter into any agreement or arrangement to do so.

[27]Section 91H (2)

Omit section 91H (2) and (3). Insert instead:

(2)

A person who produces, disseminates or possesses child pornography is guilty of an offence.

Maximum penalty: imprisonment for 10 years.

[28]Section 91H (4)

Omit “or (3)”.

[29]Section 91H (5)

Omit “any charge for an offence under subsection (3)”.

Insert instead “a charge for an offence under subsection (2) not involving the production or dissemination of child pornography”.

[30]Section 91H (6)

Insert after section 91H (5):

(6)

A reference in this section to material that appears to depict or describe a person who is a child, or a person as referred to in paragraph (a), (b) or (c) of the definition of child pornography, includes a reference to material that contains or displays an image of a person that has been altered or manipulated so that the person appears to be a child, or appears as referred to in any of those paragraphs, or both.

[31]Part 3, Division 15B

Insert after section 91H:

Division 15BVoyeurism and related offences91IDefinitions(1)

In this Division:

building includes a vehicle, vessel, tent or temporary structure.

private parts means a person’s genital area or anal area, whether bare or covered by underwear.

(2)

For the purposes of this Division, a person is engaged in a private act if:

• (a)

  the person is in a state of undress, using the toilet, showering or bathing, engaged in a sexual act of a kind not ordinarily done in public, or engaged in any other like activity, and

• (b)

  the circumstances are such that a reasonable person would reasonably expect to be afforded privacy.

(3)

For the purposes of this Division, a person films another person, or another person’s private parts, if the person causes one or more images (whether still or moving) of the other person or the other person’s private parts to be recorded or transmitted for the purpose of enabling the person or a third person to observe those images (whether during the filming or later).

91JVoyeurism(1)

A person who, for the purpose of obtaining sexual arousal or sexual gratification, observes a person who is engaged in a private act:

• (a)

  without the consent of the person being observed to being observed for that purpose, and

• (b)

  knowing that the person being observed does not consent to being observed for that purpose,

is guilty of an offence.

Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.

(2)

An offence against subsection (1) is a summary offence.

(3)

A person who, for the purpose of obtaining sexual arousal or sexual gratification, observes a person who is engaged in a private act:

• (a)

  without the consent of the person being observed to being observed for that purpose, and

• (b)

  knowing that the person being observed does not consent to being observed for that purpose, and

• (c)

  in circumstances of aggravation,

is guilty of an offence.

Maximum penalty: imprisonment for 5 years.

(4)

In this section, circumstances of aggravation means circumstances in which:

• (a)

  the person whom the offender observed was a child under the age of 16 years, or

• (b)

  the offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence.

(5)

If on the trial of a person charged with an offence against subsection (3) the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (1), the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against subsection (1). The person is liable to punishment accordingly.

(6)

A person who attempts to commit an offence under subsection (1) or (3) is liable to the penalty provided for the commission of the offence.

91KFilming a person engaged in private act(1)

A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person who is engaged in a private act:

• (a)

  without the consent of the person being filmed to being filmed for that purpose, and

• (b)

  knowing that the person being filmed does not consent to being filmed for that purpose,

is guilty of an offence.

Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.

(2)

An offence against subsection (1) is a summary offence.

(3)

A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person who is engaged in a private act:

• (a)

  without the consent of the person being filmed to being filmed for that purpose, and

• (b)

  knowing that the person being filmed does not consent to being filmed for that purpose, and

• (c)

  in circumstances of aggravation,

is guilty of an offence.

Maximum penalty: imprisonment for 5 years.

(4)

In this section, circumstances of aggravation means circumstances in which:

• (a)

  the person whom the offender filmed was a child under the age of 16 years, or

• (b)

  the offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence.

(5)

If on the trial of a person charged with an offence against subsection (3) the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (1), the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against subsection (1). The person is liable to punishment accordingly.

(6)

A person who attempts to commit an offence under subsection (1) or (3) is liable to the penalty provided for the commission of the offence.

91LFilming a person’s private parts(1)

A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person’s private parts, in circumstances in which a reasonable person would reasonably expect the person’s private parts could not be filmed:

• (a)

  without the consent of the person being filmed to being filmed for that purpose, and

• (b)

  knowing that the person being filmed does not consent to being filmed for that purpose,

is guilty of an offence.

Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.

(2)

An offence against subsection (1) is a summary offence.

(3)

A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person’s private parts, in circumstances in which a reasonable person would expect that his or her private parts could not be filmed:

• (a)

  without the consent of the person being filmed to being filmed for that purpose, and

• (b)

  knowing that the person being filmed does not consent to being filmed for that purpose, and

• (c)

  in circumstances of aggravation,

is guilty of an offence.

Maximum penalty: imprisonment for 5 years.

(4)

In this section, circumstances of aggravation means circumstances in which:

• (a)

  the person whom the offender filmed was a child under the age of 16 years, or

• (b)

  the offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence.

(5)

If on the trial of a person charged with an offence against subsection (3) the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (1), the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against subsection (1). The person is liable to punishment accordingly.

(6)

A person who attempts to commit an offence under subsection (1) or (3) is liable to the penalty provided for the commission of the offence.

(7)

A person cannot be convicted of both an offence against this section and an offence against section 91K in respect of conduct occurring on the same occasion.

91MInstalling device to facilitate observation or filming(1)

A person who, with the intention of enabling that person or any other person to commit an offence against section 91J, 91K or 91L, installs any device, or constructs or adapts the fabric of any building, for the purpose of facilitating the observation or filming of another person, is guilty of an offence.

Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.

(2)

An offence against this section is a summary offence.

(3)

If on the trial of a person charged with an offence against section 91J, 91K or 91L the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against this section, the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against this section. The person is liable to punishment accordingly.

[32]Section 431A Life sentences

Insert “, for an offence under section 66A (2)” after “61JA” in section 431A (2).

[33]Schedule 11 Savings and transitional provisions

Insert at the end of the Schedule (with appropriate Part and clause numbers):

PartCrimes Amendment (Sexual Offences) Act 2008

An amendment made to this Act by the Crimes Amendment (Sexual Offences) Act 2008 applies in respect of an offence committed, or alleged to have been committed, on or after the commencement of the amendment.

Schedule 2Amendment of other Acts and instrument

(Section 4)

Child Protection (Offenders Registration) Act 2000 No 42[1]Section 3 Definitions

Omit paragraph (f) of the definition of Class 2 offence in section 3 (1).

Insert instead:

(f)

an offence under section 91J, 91K or 91L of the Crimes Act 1900 where the person who was being observed or filmed as referred to in those sections was then a child, or

[2]Section 3A Registrable persons

Insert “or section 91J (1), 91K (1) or 91L (1) of the Crimes Act 1900” after “Summary Offences Act 1988” in section 3A (2) (c) (iii).

Children (Criminal Proceedings) Act 1987 No 55Crimes (Sentencing Procedure) Act 1999

Insert at the end of the section:

Note—

Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (which provides for standard non-parole periods) does not apply in respect of offences committed by children.

Commission for Children and Young People Act 1998 No 146

Omit paragraph (a3) of the definition of reportable conduct in section 33 (1).

Insert instead:

(a3)

an offence under section 91J, 91K, 91L or 91M of the Crimes Act 1900 committed against, with or in the presence of a child, or

(a4)

an offence that was reportable conduct at the time that it was committed, or

Crimes (Sentencing Procedure) Act 1999 No 92[1]Section 21A Aggravating, mitigating and other factors in sentencing

Insert after section 21A (5):

(5A)

In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.

(5B)

Subsection (5A) has effect despite any Act or rule of law to the contrary.

[2]Section 21A (6)

Insert in alphabetical order in the subsection:

child sexual offence means:

• (a)

  an offence against section 61I, 61J, 61JA, 61K, 61M, 61N, 61O or 66F of the Crimes Act 1900 where the person against whom the offence was committed was then under the age of 16 years, or

• (b)

  an offence against section 66A, 66B, 66C, 66D, 66EA, 66EB, 91D, 91E, 91F, 91G or 91H of the Crimes Act 1900, or

• (c)

  an offence against section 80D or 80E of the Crimes Act 1900 where the person against whom the offence was committed was then under the age of 16 years, or

• (d)

  an offence against section 91J, 91K or 91L of the Crimes Act 1900 where the person who was being observed or filmed as referred to in those sections was then under the age of 16 years, or

• (e)

  an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in any of the above paragraphs.

[3]Section 24A

Insert after section 24:

24AMandatory requirements for supervision of sex offenders to be disregarded in sentencing(1)

In sentencing an offender, the court must not take into account, as a mitigating factor in sentencing, the fact that the offender:

• (a)

  has or may become a registrable person under the Child Protection (Offenders Registration) Act 2000 as a consequence of the offence, or

• (b)

  has or may become the subject of an order under the Child Protection (Offenders Prohibition Orders) Act 2004 or the Crimes (Serious Sex Offenders) Act 2006.

(2)

This section has effect despite any Act or rule of law to the contrary.

[4]Section 54D Exclusions from Division

Insert after section 54D (2):

(3)

This Division does not apply to the sentencing of an offender in respect of an offence if the offender was under the age of 18 years at the time the offence was committed.

[5]Part 4, Division 1A, Table

Omit “66A” from item 10. Insert instead “66A (1) or (2)”.

[6]Schedule 1 Existing life sentences

Omit “or 61JA” from the definition of existing life sentence in clause 1.

Insert instead “, 61JA or 66A (2)”.

[7]Schedule 2 Savings, transitional and other provisions

Insert at the end of clause 1 (1):

Crimes Amendment (Sexual Offences) Act 2008

[8]Schedule 2, Part 19

Insert in appropriate order:

Part 19Provisions consequent on enactment of Crimes Amendment (Sexual Offences) Act 200859Existing offences and proceedings(1)

An amendment made to Part 3 of this Act by the Crimes Amendment (Sexual Offences) Act 2008 applies to the determination of a sentence for an offence whenever committed, unless:

• (a)

  a court has convicted the person being sentenced of the offence, or

• (b)

  a court has accepted a plea of guilty and the plea has not been withdrawn,

before the commencement of the amendment.

(2)

In this clause:

convict includes make a finding of guilt.

60Standard non-parole periods(1)

An amendment made to section 54D by the Crimes Amendment (Sexual Offences) Act 2008 does not affect any sentence imposed before the commencement of that amendment.

(2)

The Table to Division 1A of Part 4, as in force immediately before its amendment by the Crimes Amendment (Sexual Offences) Act 2008, continues to apply in respect of an offence against section 66A of the Crimes Act 1900 committed before the commencement of the amendment.

Crimes (Serious Sex Offenders) Act 2006 No 7[1]Section 5 Definitions of “serious sex offence” and “offence of a sexual nature”

Insert “or 15A” after “Division 15” in section 5 (2) (c).

[2]Section 5 (2) (e)

Omit the paragraph. Insert instead:

(e)

an offence under section 91J, 91K, 91L or 91M of the Crimes Act 1900 in relation to the observing or filming of a child,

Criminal Assets Recovery Act 1990 No 23[1]Section 6 Meaning of “serious crime related activity”

Insert “or 15A” after “Division 15” in section 6 (2) (g).

[2]Section 6 (2) (g)

Omit “or 91H (3)”.

Criminal Procedure Act 1986 No 209[1]Schedule 1 Indictable offences triable summarily

Insert “or (2A), 66EB” after “61O (2)” in clause 2 of Table 1.

[2]Schedule 1, Table 1

Insert “91J (3), 91K (3), 91L (3),” after “91H,” in clause 2.

[3]Schedule 1, Table 2

Omit “, 61O (1) or (1A) or 66EB” from clause 1.

Insert instead “or 61O (1) or (1A)”.

[4]Schedule 2 Savings, transitional and other provisions

Insert at the end of clause 1 (1):

Crimes Amendment (Sexual Offences) Act 2008

Firearms Regulation 2006[1]Clause 5 Offences that disqualify applicants

Insert “or 15A” after “Division 15” in clause 5 (d) (iii).

[2]Clause 44 Offences that prevent persons from being involved in firearms dealing business

Insert “or 15A” after “Division 15” in clause 44 (d) (iii).

Pre-Trial Diversion of Offenders Act 1985 No 153

Insert “66EA,” after “66D,” in the definition of child sexual assault offence in section 3 (1).

Summary Offences Act 1988 No 25

Omit the Part.