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

In Victoria, section 49P of the Crimes Act 1958 is the offence of Abduction of a Child under 16 Years of Age for a Sexual Purpose. This offence happens when a child under 16 years of age is taken away without the consent of their guardian for the purpose of performing sexual acts.

Have you been accused of Abduction a Child Under the Age of 16 for a Sexual purpose? We can help you by answering your legal questions in confidence about how to get the best result possible.
 
Abduction of a Child Under the Age of 16
‘The Police will lay a charge of Abduction of a Child Under the Age of 16 for a Sexual Purpose’ if they think you have taken a young person somewhere against their will or without their guardian’s consent while you are thinking you will perform a sexual act with them’.

Police interview
We can advise you about what should be said during a Police interview. You may want to know – should I make a statement to Police? Should I attend a Police interview? Do I need to give my DNA? Will the Police leave me alone if I explain my side of the story? Will I be remanded?

If the Police want to speak with you about an allegation of Abduction of a Child Under the Age of 16 for a Sexual Purpose, it is important to the success of your case that you call us to speak with one of our experienced lawyers first. Anything you tell the Police without advice can make running a defence more difficult.

Our lawyers can also attend the Police station with you.

Pleading not guilty
We are defence lawyers who specialise in sexual allegations and we can answer your questions about how to successfully defend charges. We will help you prepare the best defence strategy if you are accused of Abducting a Child Under the Age of 16 for a Sexual Purpose.

In a case like this, you want a lawyer who is going to ask the Police – Is there relevant CCTV footage? Is there DNA evidence? Are there people who the Police have not spoken to who can shed some light on this case? Is there exonerating evidence which needs to be preserved?

The answer to these questions can lead to a charge of Abduction of a Child Under the Age of 16 for a Sexual Purpose being withdrawn before a trial or an acquittal after a trial.

We believe it is very important for our clients to understand what they are facing. Preparing a case strategy early is critical to increasing the chances of this charge being withdrawn or leading to an acquittal. We have successfully stopped the Police from charging people with sex matters by strategic pre-charge work.

Pleading guilty
If you are pleading guilty, we can advise you how to prepare your plea to get the possible outcome. We will help you to arrange reports and documents that will help you. Call us and discuss how to get the best result.
 
  • Contact an expert in charges of Abducting a Child Under the Age of 16 for a Sexual Purpose on (03) 9670 5111.
  • We provide a free first phone conference.
  • Download our free booklet to learn more about the Investigation and Court process.
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.

[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).
 
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.
 
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.
 
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.