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Indecent Act In the Presence of a Child Under the Age of 16

In Victoria, section 49F of the Crimes Act 1958 contains the offence of Indecent Assault in the Presence of a Child Under 16 Years of Age which is performing an indecent act with a child witness.

Have you been accused of performing an Indecent Act in the Presence of a Child Under 16 Years of Age? You will have legal questions which need to be answered. This is where we can help you. It is never too early to get legal advice. Every stage of the allegation process is important, so it is best that you know what to expect.

Police interview and investigations
Do the Police want to interview you in relation to a charge of Indecent Act in the Presence of a Child Under 16 Years of Age? You will have important questions such as:

  • Should I make a statement to the Police?
  • Should I attend a Police interview?
  • Will the Police leave me alone if I explain my side of the story?
  • Will I be remanded?
  • Do I need to let the Police in to my home if they have a search warrant?
  • What will you tell the Police during the interview?
  • Are there witnesses who can help your case that the Police have not spoken to?
Our lawyers can attend the Police station with you and be in the interview. This can give you comfort knowing that you have someone on your side who is there to help you.

Pleading not guilty
Call us straight away if you are accused of Indecent Act in the Presence of a Child Under 16 Years of Age and if you want to contest the charges. We will fight on your behalf and work out a strategy with one of our experienced lawyers. We are criminal defence lawyers who specialise in sex offences and are experienced in running these matters in Court.

Being accused of a sexual offence can have a devastating effect on a person. Being accused of Indecent Act in the Presence of a Child Under 16 Years of Age can be especially damaging. It can negatively impact your reputation, your employment, your ability to parent your children, and ability to travel. The Court treats all allegations involving children very seriously.

Pleading guilty
A finding of guilt for a charge of Indecent Act in the Presence of a Child Under 16 Years of Age can attract an immediate gaol sentence.

We have conducted many pleas of guilty for people charged with Indecent Act in the Presence of a Child Under 16 Years of Age. We know how to properly prepare your plea to get the best possible outcome from the Court.
 
  • Contact an expert in charges of Indecent Act in the Presence of a Child Under 16 Years of Age on (03) 9670 5111.
  • We provide a free first phone conference.
  • Download our free booklet to learn more about the Investigation and Court process.
Jurisdictional limits: Indecent Act in the Presence of a Child Under 16
Indecent Act in the Presence of a Child Under the Age of 16 will be heard by a judge and jury in the County Court or by a Magistrate in the Magistrates’ Court. That depends on the Magistrates’ Court considering it appropriate and the accused consenting.

In making this determination, the Magistrate will consider:

  1. the seriousness of the charge
  2. the adequacy of sentences available to the court (the maximum term of imprisonment that a Magistrate can impose for a single offence is two years imprisonment and the maximum aggregate (total) sentence that a Magistrate can impose is five years imprisonment)
  3. whether a co-accused is charged with the same offence
  4. any other matters the court considers relevant.1

[1] Section 29(2) of the Criminal Procedure Act 2009 (Vic).
 
Statutory Provisions
Section 49F of the Crimes Act 1958 (Vic) (“the Act”) prohibits Indecent Act in the Presence of a Child Under the Age of 16. Pursuant to section 49F, an accused person commits this offence if they:

  1. Committed or were a party to the commission of the act;
  2. Wilfully;
  3. The act was indecent;
  4. The act was with or in the presence of the complainant; and
  5. The complainant was a child under the age of 16.
Consent is not a defence to the charge of Indecent Act unless:

  1. The accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that the child was aged 16 or older;2 or
  2. The accused was not more than 2 years older than the child;3 or
  3. The accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that he or she was married to the child.4
Section 49F of the Crimes Act 1958 specifically states:

Sexual Activity in the Presence of a Child Under the Age of 16
  1. A person (A) commits an offence if—
    1. A intentionally engages in an activity; and
    2. the activity is sexual; and
    3. another person (B) is present when A engages in the activity; and
    4. A knows that B is, or probably is, present when A engages in the activity; and
    5. B is a child under the age of 16 years; and
    6. engaging in the activity in the presence of B is contrary to community standards of acceptable conduct.
  2. A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).
  • 2A. The standard sentence for an offence against subsection (1) is 4 years.
  1. Whether or not engaging in the activity in the presence of B is contrary to community standards of acceptable conduct depends on the circumstances.
  2. For the purposes of subsection (3)—
    1. the circumstances include—
      1. the purpose of the activity; and
      2. whether A seeks or gets sexual arousal or sexual gratification from engaging in the activity or from the presence of B;
    2. the circumstances do not include—
      1. whether B consents—
        1. to being present when A engages in the activity; or
        2. to A engaging in the activity; or
      2. whether A believes that B consents—
        1. to being present when A engages in the activity; or
        2. to A engaging in the activity.
  3. For the purposes of subsection (1), when A engages in an activity, B may be present—
    1. in person; or
    2. by means of an electronic communication within the meaning of the Electronic Transactions (Victoria) Act 2000 that is received by B in real time or close to real time.
  4. It is immaterial that some or all of the conduct constituting an offence against subsection (1) occurred outside Victoria, so long as B was in Victoria at the time at which that conduct occurred.
  5. It is immaterial that B was outside Victoria at the time at which some or all of the conduct constituting an offence against subsection (1) occurred, so long as A was in Victoria at the time at which that conduct occurred.5
Elements of Indecent Act In the Presence of a Child Under 16
There are five elements that constitute the offence. The prosecution must prove each of them ‘beyond reasonable doubt’ to prove their case against the accused person. If the prosecution is unable to do this, the accused is not guilty of the offence. As criminal lawyers, we investigate cases and identify holes in the prosecution case, to show that one or more of the elements are not proven.

If the offence of Indecent Act in the Presence of a Child Under 16 was alleged to have been committed before 22 October 2014, then there is a sixth element of the offence which relates to whether or not the accused and the complainant were married.

Element 1: The accused committed or was party to the commission of the act

The prosecution need not prove that the accused performed the physical act themselves to prove Indecent Act in the Presence of a Child Under the Age of 16. It is enough if they were ‘party to’ the act in some way. Whether or not an accused was ‘party to’ an act can be a complicated legal question.

Element 2: The accused did so wilfully

This element is focused upon the accused’s state of mind.

The accused must wilfully commit, or wilfully be a part to the commission of Indecent Act in the Presence of a Child Under the Age of 16. It seems likely that the term ‘wilfully’ means intentionally.6

The question of whether the accused person must wilfully perform the indecent act, or wilfully perform the indecent act with or in the presence of a child, has not been judicially determined.7 As criminal defence lawyers, we would argue that the prosecution must prove the latter scenario.

Element 3: The act was indecent

The test of indecency has been variously stated as whether the behaviour was unbecoming or offensive to common propriety,8 an affront to modesty,9 or an act which right-minded persons would consider to be contrary to community standards of decency.10 The test of indecency has remained broad because ‘indecent acts are as various as the human imagination’.11 In R v Harkin12 the court found that there needs to be a sexual connotation for an act to be indecent. However, even where no objective sexual connotation arises from the act, if the offender’s purpose was sexual gratification, his or her intent may give the act the quality of indecency if the act accompanied by that intent offends community standards.13

In Curtis v The Queen14 the accused had urged two complainants, each aged 14, to kiss. It was common ground that their participation was consensual. On appeal it was argued that there could be no act of indecency in two teenagers of the same age kissing each other. However the Court disagreed and found that it was open for the jury to decide that the indecency did not arise from the act of kissing but in the instigation of the act by a 24-year old man for his own sexual gratification.

Indecent act covers sexual acts other than sexual penetration (which is rape).

Element 4: The accused committed the act in the presence of the complainant

‘In the presence of…’
There is no requirement that there be any physical contact between the accused and the victim at all. The words require the presence of the child in the proximity of the accused.15 In R v Coffey16the accused requested the child to perform a strip dance down to his underpants and whilst the child performed, he fondled his penis. This constituted an indecent act in the presence of a child.

Element 5: The complainant was under the age of 16 years

The prosecution must establish that the conduct occurred when the complainant was under 16 years of age.


[2] Section 49F of the Act.
[3] Section 49F of the Act.
[4] Section 49F of the Act.
[5] Australian legal Information Institute. “Crimes Act 1958 – Section 49F: Sexual activity in the presence of a child under the age of 16.” Austlii.edu.au. http://classic.austlii.edu.au/au/legis/vic/consol_act/ca195882/s49f.html (accessed June 18, 2020).
[6] Criminal Charge Book, 7.3.4.2.1 – Bench Notes: Indecent Act with a Child under 16 (22 January 2016) Judicial College of Victoria: <http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#4652.htm>.
[7] Ibid.
[8] Above n 1.
[9] Crowe v Graham (1968) 121 CLR 375.
[10] DPP v Scott [2004] VSC 129; Curtis v The Queen [2011] VSCA 102.
[11] R v Coffey (2003) 6 VR 543 at 550.
[12] (1989) 38 A Crim R 296.
[13] Above n 2.
[14] [2011] VSCA 102.
[15] Criminal Charge Book, 15.7.2 – With or in the presence of a child under the age of 16 (1 January 2011) Judicial College of Victoria: <http://www.judicialcollege.vic.edu.au/eManuals/SAM/index.htm#29401.htm>.
[16] (2003) 6 VR 543.

 
Consent and belief that the complainant was older than 16
Consent is available as a defence where the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that the child was aged 16 or older.

Consent and married
The accused may also defend the allegations on the basis that they are married to the complainant, and the complainant consented. The accused must prove to the court, on the balance of probabilities, that they believed that they were married to the complainant at the time of the relevant conduct.

Consent and not more than 2 years older than the complainant
An accused may also defend the matter if they were no more than 2 years older than the complainant and the complainant consented.

If the age gap is in issue, generally the prosecution must prove beyond reasonable doubt either that there was no consent, or that the age gap is over 2 years.

An age difference of not more than 2 years is measured from the dates of birth of the complainant and the offender. The court does not round off the ages of the parties to the whole number of years.

For example, if, on the date of the offence of indecent act in the presence of a child under 16, the victim is aged 13 years and 5 months and the accused is aged 15 years and 6 months, the accused is more than 2 years older than the child and so consent is not a defence.17

Importantly, section 49F of the Act states that if consent is in dispute, the prosecution carries the burden of proving the lack of consent.

If the offence is alleged to have been committed before 1 December 2006, the defence does not need to prove (on balance) either that they believe they were married to the complainant or that they believed on reasonable grounds that the child was 16 or older. For pre-December 2006 offences, if there is an evidentiary basis to support either or both of these defences, then the prosecution must disprove the matter, beyond reasonable doubt.

Other defences for Indecent Act in the Presence of a Child Under 16
Other defences include wrongful identification, mental impairment or duress.

We regularly come across matters where the complainant is lying. This can often be the case in historical matters where the complainant’s allegations surface years down the track often borne out of anger or revenge, sadly enough. In such a case where there is a factual dispute, the prosecution bear the burden of proving matters alleged beyond reasonable doubt.

In a trial for Indecent Act in the Presence of a Child Under 16, the questions a judge will ask the jury to consider (when consent is in issue) are:18

  1. [Did the accused commit/Was the accused a party to the commission of] the alleged act?
    If yes, the jury will be asked to consider question 2.
    If no, then the accused is not guilty
  2. [Did the accused wilfully commit/Was the accused wilfully a party to] the act?
    If yes, the jury will be asked to consider question 3.
    If no, then the accused is not guilty
  3. Did the act occur in indecent circumstances?
    (Consider – sexual connotation)
    If yes, the jury will be asked to consider question 4.
    If no, then the accused is not guilty
  4. Did the act take place [with/in the presence of] the complainant?
    If yes, the jury will be asked to consider question 5.
    If no, then the accused is not guilty
  5. Was the complainant under the age of 16 at the time the act was committed?
    If yes, the jury will be asked to consider whether consent is relevant – see point 6, below.
    If no, then the accused is not guilty
Consent in a case of Indecent Act in the Presence of a Child Under 16 is only relevant if:

  1. The defence has proven, on the balance of probabilities:
    1. The accused believed that the complainant was aged 16 or older at the time the indecent act took place; and
    2. The accused’s belief that the complainant was aged 16 or older was based on reasonable grounds.
  2. The accused alleged that they are no more than 2 years older than the complainant, and the prosecution has not proven, beyond reasonable doubt, that there is an age gap of over 2 years; or
  3. The accused has proven, on the balance of probabilities, that they believed on reasonable grounds that they were married to the child.
If at least one of 6, 7 or 8 applies, then go to question 9.

If none of 6, 7 or 8 apply then the accused is guilty of committing the offence (as long as you answered yes to questions 1, 2, 3, 4 and 5).

If consent is relevant, you must further consider:

  1. Did the indecent act occur without the complainant’s consent?
    If yes, then go to 10.
    If no, the accused is not guilty of committing an Indecent Act in the Presence of a Child Under 16 (as long as you are satisfied that at least one of the circumstances in question 6, 7 or 8 existed).
  2. At the time of the alleged indecent act, was the accused aware that the complainant was not consenting or that they might not be consenting?
    If yes, then the accused is guilty of committing an Indecent Act in the Presence of a Child Under 16 (as long as you answered yes to questions 1, 2, 3, 4, 5 and 9).
    If no, the accused is not guilty of committing an Indecent Act in the Presence of a Child Under 16 (as long as you are satisfied that at least one of the circumstances in question 6, 7 or 8 existed).

[17] Criminal Charge Book, 15.6.2 – Consent (1 January 2011) Judicial College of Victoria: <http://www.judicialcollege.vic.edu.au/eManuals/SAM/index.htm#29396.htm> . Also see Stannard v DPP [2010] VSCA 165.
[18] This checklist is based on a checklist from the Judicial College of Victoria website. It only applies to offences allegedly committed after 22 October 2014. Criminal Charge Book, 7.3.4.2.4A – Checklist: Consent in Issue (Offences on or After 22 October 2014) (22 January 2016) Judicial College of Victoria: <http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#56888.htm> Also see Stannard v DPP [2010] VSCA 165.

 
The maximum penalty is level 5 imprisonment (10 years).

The offence is a standard sentence offence, which means the court must take into account the standard sentence as one of the factors relevant to sentencing. The standard sentence for an offence against this section is 4 years.19


[19] See Section 49F(2A) of the Crimes Act 1958
 
Sentencing in the higher courts
Sentencing Statistics Pie Chart for Indecent Act With or In the Presence of a Child Under the Age of 16 in the Higher Courts
Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.

Sentencing in the Magistrates’ Courts
Sentencing Statistics Pie Chart for Indecent Act With or In the Presence of a Child Under the Age of 16 in the Magistrates' Courts
Please note that suspended sentences were abolished in the higher courts earlier than that of the Magistrates’ Court, and therefore for all offences committed on or after 1 September 2013 will not have this available as a sentencing option.

Victoria has become tougher with sentencing people who plead guilty to certain offences involving children. For anyone who commits Indecent Assault in the Presence of a Child Under 16 Years of Age will have committed a category 2 offence. This means that the starting point in sentencing for this offence is 4 years imprisonment. A Judge can impose a combination sentence of imprisonment and a Community Correction Order if special reasons exist such as:

  • You assisted Police,
  • You have a mental impairment,
  • The Court imposes a Court Treatment Order or a Residential Treatment Order, or
  • Substantial and Compelling Circumstances which are exceptional and rare exist.
To view sentencing decisions by Victorian County Courts for sexual offences against children, visit this page.