Abduction of a Child Under the Age of 16 for a Sexual Purpose

Which Court Will the Case be Heard in?

Abduction of a Child Under the Age of 16 for a Sexual Purpose is a strictly indictable charge which means that your case must be heard in the County Court.

Examples of Abduction of a Child Under the Age of 16 for a Sexual Purpose

• The mother is clear to her daughter’s 18-year old boyfriend that he is not to pick up the former’s 15-year old daughter and take her away. He does so as they are having a sexual relationship.
• Two people meet online. The parents tell the older one not to take the child anywhere. The 22-year old arranges to pick the 14-year old up in his car and to go to motel and have sex.

We had a case where a client was charged with this because he was taking a child from welfare and driving her off in his car. The Prosecution could not prove that he intended to, or did, have sex with her and so the charge was withdrawn.

What is the legal definition of Abduction of a Child Under the Age of 16 for a Sexual Purpose?

The charge in essence is made out by taking a child, or getting someone else to, from the care of another person who has lawful charge of the child and having the intention that they will participate in sexual acts.

To prove a charge such as this, the Prosecution must show that the accused has an intention to have sex with the child who has been abducted.

Legislation

The section that covers this offence is section 49P of the Crimes Act.

Abduction or Detention of a Child Under the Age of 16 for a Sexual Purpose

1. A person (A) commits an offence if—
   1. A—
      1. takes away or detains another person (B); or
      2. causes B to be taken away or detained by another person; and
   2. B is a child under the age of 16 years; and
   3. the person who has lawful charge of B (C) does not consent to B being taken away or detained; and
   4. A knows that—
      1. B is a child under the age of 16 years; or
      2. B is probably a child under the age of 16 years; and
   5. A knows that—
      1. C does not consent to B being taken away or detained; or
      2. C probably does not consent to B being taken away or detained; and
   6. A intends that B will take part in a sexual act with A or another person or both; and
   7. B taking part in the sexual act would involve the commission by A, or the other person, or both, of an offence against section 38(1), 39(1), 40(1), 41(1) or a provision of this subdivision (other than this section).
2. A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).¹

Elements of the offence

A person will be found guilty of Abduction or Detention of a Child Under the Age of 16 for a Sexual Purpose if the following are established in court beyond reasonable doubt:

1. The accused takes the victim away, AND This element will be proven if the accused takes away or detains the victim or causes the victim to be taken away or detained by another person.
2. The victim is a child, AND The victim must be a child under the age of 16 years.
3. The person in charge of the victim does not consent; AND The person who has lawful charge of the victim must not consent to the victim being taken away or detained. The person with lawful charge may be a parent, guardian, or teacher.
4. The accused knows the victim is underage, AND The accused must know that the victim is a child under the age of 16 years; or that the victim is probably a child under the age of 16 years.
5. The accused knows that the person in charge doesn’t consent; AND The accused must know that the person in charge of the victim does not consent to the victim being taken away or detained; or that they probably don’t consent.
6. The accused intends to take part in a sexual act with the victim; AND The accused must intend that the victim will take part in a sexual act with the accused or another person or both.
7. The sexual act would be an offence B taking part in the sexual act must involve the commission by the accused, or the other person, or both, of an offence against section 38(1), 39(1), 40(1), 41(1) of the Crimes Act 1958, or against subdivisions 8A to 8G.

What are some of the possible defences to a charge of Abduction of a Child Under the Age of 16 for a Sexual Purpose?

Obvious defences that are run against this charge:

• There was no intention to have sex with the child.
• There was no taking away of the child.
• There was no indication that you were aware that they were not allowed to go with you.

There are other possible defences depending on the circumstances surrounding the alleged offending. Each matter is unique and requires an individual approach and strategy.

Maximum Penalty Section 49P Crimes Act 1958

There is a maximum penalty of level 6 imprisonment (5 years) for the offence of Abduction of a Child Under the Age of 16 for a Sexual Purpose.

It does not mean that a person will receive the maximum penalty upon being found guilty. The maximum is reserved for the worst example of the charge. The reason that the maximum is relatively low is that if there was a completed act of Rape or some other offence then that would be charged as well.

Sentencing

If you decide to plead guilty to or are found guilty of the offence of Abduction of a Child under 16 Years of Age for a Sexual Purpose in Victoria, you may receive a prison sentence. This offence attracts condign punishment because Courts view crimes which victimise children as serious (DPP v Hooper [2020] VCC 1065). A Judge will look at the following factors:

• Your individual personal circumstances. Presenting your personal circumstances in a coherent way which tells the Judge about the major things in your life which shows your good character.
• Remorse. This is shown by resolving your matter early without going to trial and cross-examining the complaint. This is also mandated by section 6AAA of the Sentencing Act 1991 (Vic).
• Tendering a psychological report which talks about any mental health issues you may have impacted our wrong-doing and how prison will impact your mental health.
• Character references from your family and friends which speak about your character and personal circumstances generally and what you mean to your community.

The Victorian Court of Appeal in Boulton v The Queen (2014) 46 VSCA 308 said that a CCO enables all the purposes of punishment to be achieved in a balanced way. ‘A CCO may be suitable for cases of relatively serious offences which might previously have attracted a medium term of imprisonment for example … sexual offences involving minors’.

This is a Class 2 offence and will result in you being placed on the Sex Offender Register for 8 years.


_{[1] Australian legal Information Institute. “Crimes Act 1958 – Section 49P: Abduction or detention of a child under the age of 16 for a sexual purpose.” Classic.Austlii.edu.au. http://classic.austlii.edu.au/au/legis/vic/consol_act/ca195882/s49p.html (accessed May 28, 2020).}