Loitering Near Schools By a Sexual Offender

– section 49N of the Crimes Act 1958

Children's Hands Holding Onto a BarsLoitering near schools is when someone has been found guilty of a sexual offence or a child pornography offence. They are found hanging around a school or a place where there are children.

Examples of Loitering Near Schools
  • A man is found guilty of sexually assaulting a child and following his release from prison he is found by the Police standing outside a Primary School.
  • A woman is found guilty of possessing child pornography, and is found by Police walking around the outside of a children’s dance hall.
What are some of the possible defences to a charge of Loitering Near Schools?
  • You have a reasonable excuse for being at the place.
  • You did not know it was a school.

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

Questions in cases like this
  • Why were you at the place?
  • What were you doing when the Police found you there?
  • Do you have a lawful reason for being there?
Maximum penalty and Court that deals with this charge

The maximum penalty for this offence is level 6 imprisonment (5 years) or a level 6 fine (600 penalty units).

The Magistrates’ Court generally hears these charges.
 

“Were you hanging around a school?”

 

What is the legal definition of Loitering Near Schools?

When a person who has been found guilty of a sexual offence, or a child pornography offence, is found loitering near a school or other place where there are often children. Without a reasonable excuse for being at the place.

Legislation

The section that covers this offence is section 49N of the Crimes Act 1958.

Elements of the offence

The accused will be found guilty if the prosecution proves the following elements beyond reasonable doubt:
 
Call Doogue + George
 
Element 1: The accused has been found guilty of a relevant offence; and

A ‘relevant offence’ means:

  1. A sexual offence;
  2. Murder where there are reasonable grounds to believe that a sexual offence was also committed on the victim;
  3. An offence against the following legislation:
    1. Sections 5, 6, 7 or 11 of the Sex Work Act 1994; or
    2. Section 6, 7, 8 or 9 of the Prostitution Regulation Act 1986; or
    3. Section 59(1)(a) or (b) or 60 inserted in the Crimes Act 1958 on 1 March 1981 by section 5 of the Crimes (Sexual Offences) Act 1980 and repealed on 5 August 1991 by section 3 of the Crimes (Sexual Offences) Act 1991; or
    4. Section 19 of the Summary Offences Act 1966; or
    5. Any of the following provisions as in force at any time before its repeal:
      1. Section 60A of the Classification of Films and Publications Act 1990;
      2. Section 57A of the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995;
      3. Sections 168A, 168B or 168C of the Police Officers Act 1958; or
    6. Any provision referred to in paragraphs (dam), (dama) or (dan) of clause 1 of Schedule 1 to the Sentencing Act 1991 or of attempting to commit an offence against a provision referred to in paragraph (dama); or
    7. Section 51B(1), 51C(1), 51D(1), 51G(1) or 51H(1) or of attempting to commit an offence against section 51C(1).

A ‘sexual offence’ means:

  1. an offence against section 38(1), 39(1), 40(1), 41(1), 47(1), 48(1), 49A(1), 49B(1), 49C(1), 49D(1), 49E(1), 49F(1), 49G(1), 49H(1), 49I(1), 49J(1), 49O(1), 50C(1), 50D(1) or 50F(1) of the Crimes Act 1958; or
  2. an offence against a provision referred to in clause 7A, 7B, 8, 9, 10, 11A 11B, 11D(b), 11D(c), 11D(d), 11D(g), 11D(h), 11E, 11F or 12 of Schedule 8 of the Crimes Act 1958; or
  3. an offence against section 44(1), (2) or (4) (incest) as inserted in the Crimes Act 1958 on 5 August 1991 by section 3 of the Crimes (Sexual Offences) Act 1991 and repealed by section 16 of the Crimes Amendment (Sexual Offences) Act 2016; or
  4. an offence of conspiracy to commit, incitement to commit or attempting to commit an offence referred to in paragraph (a), (b) or (c).

Element 2: The accused loitered at or near a place; and

The accused must be ‘loitering’ near a place to satisfy the second element of this offence.

‘Loitering’ is not defined in the act and carries its ordinary dictionary meaning of ‘linger aimlessly or as if aimless in or about a place’.1
 
Element 3: The place is a school, a children’s service centre or an education and care service premises, or a public place within the meaning of the Summary Offences Act 1966 regularly frequented by children and in which children are present at the time of the loitering; and

The place the accused is loitering must be a school, a children’s service centre or an education and care service premises, or a public place regularly frequented by children and in which children are present at the time of the loitering, such as a children’s playground in a public park where children are playing.

Element 4: The accused knows that the place is a school, a children’s service centre or an education and care service premises, or a public place within the meaning of the Summary Offences Act 1966 regularly frequented by children and in which children are present at the time of the loitering.

The accused must be aware that the place they are loitering is a school, a children’s service centre or an education and care service premises, or a public place regularly frequented by children and in which children are present at the time of the loitering.

What can you be sentenced to for this charge?

In these cases your sentence could vary greatly depending on the circumstances of your case. For example if you have been found guilty of a serious sexual offence, like raping a child, and you are found observing children outside a school and don’t have a lawful excuse for being there, then you are likely to face imprisonment; particularly if this is a repeat offence. However, if you are found guilty of a minor sexual offence and you are found near a park where some children are playing, you may get a fine or a Community Corrections Order.

Other Important Resources

 



[1] https://www.dictionary.com/browse/loitering