Untitled document

Crimes (Amendment) Act 2000

Act No. 67/2000

TABLE OF PROVISIONS

Section Page

1.	Purpose	1
2.	Commencement	2
3.	Principal Act	2
4.	Extended definition of rape	2
5.	New section 45 substituted	3

45. Sexual penetration of child under the age of 16 3

6.	Possession of child pornography	6
7.	Amendments to Principal Act consequential on section 5	6
8.	New section 593 inserted	7

593.        Transitional provisions—Crimes (Amendment)

Act 2000 7

9.	Consequential amendments to Education Act 1958	9
10.	Consequential amendments to Sentencing Act 1991	10

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ENDNOTES 12

i

Victoria

No. 67 of 2000

Crimes (Amendment) Act 2000†

[Assented to 21 November 2000]

The Parliament of Victoria enacts as follows:

1. Purpose

The purpose of this Act is to amend the Crimes

Act 1958 so as to—

(a)	extend the definition of "rape" to include situations where a male is coerced into sexually penetrating, or continuing to sexually penetrate, another person;
(b)	create a single new offence dealing with the sexual penetration of children under the age of 16;

Crimes (Amendment) Act 2000

s. 2 Act No. 67/2000

(c) increase the penalty for possession of child pornography.

2. Commencement

This Act comes into operation on the day after the day on which it receives the Royal Assent.

See:

Act No.	3. Principal Act
6231
Reprint No. 15	In this Act, the Crimes Act 1958 is called the
as at	Principal Act.
1 September 1999 and amending Act No. 26/1999. LawToday: dpc.vic. gov.au

4. Extended definition of rape

In section 38 of the Principal Act, after sub-
section (2) insert—

"(3) A person (the offender) also commits rape if

he or she compels a male person—

(a) another person with his penis,
irrespective of whether the person

to sexually penetrate the offender or the act; or

(b)

who has sexually penetrated the penis, not to withdraw his penis from the offender or that other person, irrespective of whether the person who has been sexually penetrated consents to the act.

Crimes (Amendment) Act 2000

Act No. 67/2000 s. 5

(4) For the purposes of sub-section (3), a person

compels a male person (the victim) to
engage in a sexual act if the person compels
the victim (by force or otherwise) to engage
in that act—

(a) without the victim's consent; and

(b) while being aware that the victim is not consenting or might not be consenting.".

5. New section 45 substituted

For sections 45 and 46 of the Principal Act
substitute—

"45. Sexual penetration of child under the age

of 16

(1) A person who takes part in an act of sexual penetration with a child under the age of 16 is guilty of an indictable offence.

(2) A person who is guilty of an offence against sub-section (1) is liable—

(a)	if the court is satisfied beyond reasonable doubt that the child was, at the time of the offence, under the age of 10, to level 2 imprisonment (25 years maximum); or
(b)	if the court is satisfied beyond reasonable doubt that the child was, at the time of the offence, aged between 10 and 16 and under the care, supervision or authority of the accused, to level 4 imprisonment (15 years maximum); or
(c)	in any other case, to level 5 imprisonment (10 years maximum).

Crimes (Amendment) Act 2000

s. 5 Act No. 67/2000

(3) Sub-section (1) does not apply to an act of sexual penetration if—

(a)	the child is aged between 10 and 16; and
(b)	the persons taking part in the act are married to each other.

(4) Consent is not a defence to a charge under

sub-section (1) unless at the time of the alleged offence the child was aged 10 or older and—

(a)	the accused believed on reasonable grounds that the child was aged 16 or older; or
(b)	the accused was not more than 2 years older than the child; or
(c)	the accused believed on reasonable grounds that he or she was married to the child.

(5) A circumstance of aggravation described in

sub-section (2) is not an element of an
offence against sub-section (1) but must be
stated in the presentment.

(6) An accused who takes issue with a

circumstance of aggravation described in
sub-section (2) and who wishes to have the
matter determined on the trial may do so by
pleading not guilty to the offence with which
he or she is charged even if he or she does
not take issue with any acts, facts, matters or
circumstances relied upon by the prosecution
to support a finding of guilt.

Crimes (Amendment) Act 2000

Act No. 67/2000 s. 5

(7) A circumstance of aggravation described in sub-section (2)—

(a)	is to be determined by the jury if the accused pleads not guilty to the offence; and
(b)	is to be determined by the trial judge if the accused pleads guilty to the offence.

(8) An offender who pleads not guilty to an

offence against sub-section (1) is to be taken to have pleaded guilty to the offence for the purposes of section 5(2)(e) of the

Sentencing Act 1991 if—

(a) he or she—

(i)

took issue with a circumstance of section (2); and

(ii) facts, matters or circumstances

did not take issue with any acts, support a finding of guilt; and

(b) the circumstance of aggravation is not proved.

(9) For the avoidance of doubt it is declared that

it is the intention of the Parliament that an
offence against sub-section (1) is not an
offence to which section 53(1) of the
Magistrates' Court Act 1989 applies
(indictable offences triable summarily) even
though the offence is punishable by level 5
imprisonment where a circumstance of
aggravation described in sub-section (2) is
not present.".

Crimes (Amendment) Act 2000

s. 6 Act No. 67/2000

6. Possession of child pornography

In section 70 of the Principal Act, for sub-section
(1) substitute—

"(1) A person who knowingly possesses child

pornography is guilty of an indictable

offence.

Penalty:  Level 6 imprisonment (5 years
maximum).".

7.  Amendments to Principal Act consequential on section 5

(1) In section 60B(1)(a) of the Principal Act, omit

"46,".

(2) In section 60B(1)(b) of the Principal Act, after

"clause" insert "7A, 7B,".

(3) In section 359A(1)(a) of the Principal Act, omit

"46,".

(4) In section 425(1)(c) of the Principal Act, for "10"

substitute "16".

(5) In section 425(1) of the Principal Act,

paragraph (d) is repealed.

(6) In section 425(3) of the Principal Act, for ", 45(1)

or 46(1)" substitute "or 45(1)".

(7) In clause 7(e) of Schedule 8 to the Principal Act,

for "10" substitute "16".

(8) Clause 7(f) of Schedule 8 to the Principal Act is

repealed.

(9) In Schedule 8 to the Principal Act, after clause 7

insert—

"7A. An offence against section 45(1) (sexual penetration

of child under the age of 10) (as amended) of the
Crimes Act 1958 inserted in the Crimes Act 1958 on
5 August 1991 by section 3 of the Crimes (Sexual

Crimes (Amendment) Act 2000

Act No. 67/2000 s. 8

Offences) Act 1991 and repealed by section 5 of the

Crimes (Amendment) Act 2000.

7B. An offence against section 46(1) (sexual penetration

of child aged between 10 and 16) (as amended) of the Crimes Act 1958 inserted in the Crimes Act 1958 on 5 August 1991 by section 3 of the Crimes (Sexual
Offences) Act 1991 and repealed by section 5 of the

Crimes (Amendment) Act 2000.".

8. New section 593 inserted

After section 592 of the Principal Act insert—

'593. Transitional provisions—Crimes

(Amendment) Act 2000

(1) In this section "commencement day"

means the day on which the Crimes (Amendment) Act 2000 comes into operation.

(2) The amendment of section 38 of this Act

made by section 4 of the Crimes
(Amendment) Act 2000 applies only to
offences alleged to have been committed
after the commencement day.

(3) The amendment of section 70 of this Act

made by section 6 of the Crimes
(Amendment) Act 2000 applies only to
offences alleged to have been committed
after the commencement day.

(4) For the purposes of sub-sections (2) and (3),

if an offence is alleged to have been
committed between two dates, one before
and one on or after the commencement day,
the offence is alleged to have been
committed before the commencement day.

(5) From any time on or after the

commencement day a charge or presentment may be filed against a person for an offence against section 45 of this Act, as substituted

Crimes (Amendment) Act 2000

s. 8 Act No. 67/2000

by section 5 of the Crimes (Amendment) offence is alleged to have been committed before, on or after the commencement day provided it is not alleged to have been committed before 5 August 1991.

(6) For the purposes of sub-section (5), if an

offence is alleged to have been committed
between two dates, one before and one on or
after 5 August 1991, the offence is alleged to
have been committed before 5 August 1991.

(7) Section 359A(1) of this Act, as in force

before the commencement day, continues to
apply to an alleged offence against section
45 or 46 (as in force before the
commencement day) or an attempt to
commit any such offence or an assault with
intent to commit any such offence for which
a person is directed to be tried, or with which
a person is charged on indictment or
presentment, before the commencement day.

(8) The amendments of section 425(1) of this

Act made by section 7 of the Crimes
(Amendment) Act 2000 apply to any trial
that commences on or after the
commencement day and an accused may be
found guilty in such a trial of an offence
against section 45 of this Act, as substituted
by section 5 of the Crimes (Amendment)
Act 2000, irrespective of whether the
conduct constituting the offence is alleged to
have occurred before, on or after the
commencement day provided it is not
alleged to have occurred before 5 August
1991.

Crimes (Amendment) Act 2000

Act No. 67/2000 s. 9

(9) For the purposes of sub-section (8)—

(a)	a trial commences on arraignment of the accused in accordance with Subdivision (12) of Division 1 of Part III of this Act; and
(b)	alleged to have occurred between two dates, one before and one on or after

if conduct constituting an offence is to have occurred before 5 August 1991.

(10) Section 425(3) of this Act, as in force before

the commencement day, continues to apply
to any trial of an offence against section
45(1) or 46(1) (as in force before the
commencement day) that occurs on or after
the commencement day, irrespective of
whether that trial commenced before, on or
after the commencement day.'.

9. Consequential amendments to Education Act 1958

See:

In section 35(2) of the Education Act 1958—	Act No. 6240
(a) in paragraph (a), omit "46,";	Reprint No. 8 as at
(b) after paragraph (a) insert—	24 February 2000 and
"(ab) an offence against section 45(1) (sexual penetration of child under the age of	amending Act No.
8/2000.

10) (as amended) of the Crimes Act	LawToday:
1958 inserted in the Crimes Act 1958	dpc.vic.
on 5 August 1991 by section 3 of the	gov.au
Crimes (Sexual Offences) Act 1991 and repealed by section 5 of the Crimes (Amendment) Act 2000; or

(ac) an offence against section 46(1) (sexual

penetration of child aged between 10 and 16) (as amended) of the Crimes

Crimes (Amendment) Act 2000

s. 10	Act No. 67/2000
Act 1958 inserted in the Crimes Act 1958 on 5 August 1991 by section 3 of the Crimes (Sexual Offences) Act 1991 and repealed by section 5 of the Crimes (Amendment) Act 2000; or";

(c)	in paragraph (c), after "(a)" insert ", (ab), (ac)";
(d)	in paragraph (d), after "(a)," insert "(ab), (ac),".

10. Consequential amendments to Sentencing Act 1991

See:

Act No.	(1) In the definition of "serious offence" in section
49/1991	3(1) of the Sentencing Act 1991—
Reprint No. 5
as at	(a) in paragraph (c)—
1 January
2000 and	(i) in sub-paragraph (vi), for "10"
amending
Act Nos	substitute "16";
1/2000,
41/2000 and	(ii) sub-paragraph (vii) is repealed;
54/2000.
LawToday:	(b) after paragraph (c) insert—
dpc.vic.	"(ca) an offence against section 45(1) (sexual
gov.au	penetration of child under the age of 10) (as amended) of the Crimes Act 1958 inserted in the Crimes Act 1958
on 5 August 1991 by section 3 of the Crimes (Sexual Offences) Act 1991 and repealed by section 5 of the

Crimes (Amendment) Act 2000; or (cb) an offence against section 46(1) (sexual

penetration of child aged between 10 and 16) (as amended) of the Crimes Act 1958 inserted in the Crimes Act 1958 on 5 August 1991 by section 3 of
the Crimes (Sexual Offences) Act
1991 and repealed by section 5 of the
Crimes (Amendment) Act 2000; or".

Crimes (Amendment) Act 2000

Act No. 67/2000 s. 10

(2) In clause 1 of Schedule 1 to the Sentencing Act

1991—

(a) in paragraph (a)—

(i)  in sub-paragraph (v), for "10" substitute "16";

(ii) sub-paragraph (vi) is repealed;

(b) after paragraph (a) insert—

"(ab) an offence against section 45(1) (sexual

penetration of child under the age of 10) (as
amended) of the Crimes Act 1958 inserted in
the Crimes Act 1958 on 5 August 1991 by
section 3 of the Crimes (Sexual Offences) Act
1991 and repealed by section 5 of the Crimes

(Amendment) Act 2000;

(ac) an offence against section 46(1) (sexual

penetration of child aged between 10 and 16)
(as amended) of the Crimes Act 1958 inserted
in the Crimes Act 1958 on 5 August 1991 by
section 3 of the Crimes (Sexual Offences) Act
1991 and repealed by section 5 of the Crimes

(Amendment) Act 2000;".

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Crimes (Amendment) Act 2000

Endnotes Act No. 67/2000

ENDNOTES

†

Minister's second reading speech—

Legislative Assembly: 5 October 2000

Legislative Council: 1 November 2000

The long title for the Bill for this Act was "to amend the Crimes Act
1958, to make consequential amendments to the Education Act 1958 and
the Sentencing Act 1991 and for other purposes."