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Loitering Near Schools By a Sexual Offender

Are you a convicted sex offender? Unfortunately, you will be aware that you are on the Police radar. If the Police find you hanging around a school, they may suspect you are guilty of Loitering Near Schools by a Sexual Offender. This can become frustrating as this offence can be made out in simple ways. You may just be walking to the shops. You may be walking to work.

Police interviews
Generally, the Police rely on admissions in a case like this. Therefore, it is important that you call our office and speak with one of our experienced lawyers before speaking with the Police. You do not want to say something to the Police which may harm your defence.
 
loitering near schools
Our lawyers often go with our clients to Police interviews. They can provide legal advice during the interview and support for our clients through an intimidating process.

Pleading not guilty
Our lawyers are experienced in representing people pleading not guilty to Loitering Near Schools by a Sexual Offender. You want a lawyer who is going to ask the Police how they prove their case and who will request for evidence. Without requesting relevant evidence, you cannot be sure that the Police can prove the charge.

We have proven experience in successfully running many loitering charges.

Pleading guilty
We can prepare a plea of guilty to Loitering Near Schools by a Sexual Offender to get the best possible outcome for you. There are facts which a Magistrate or Judge needs to know which can lead to a reduced penalty. This will involve us organising documents, reports. and explaining the circumstances of the offences.
 
  • Contact an expert in charges of Loitering Near Schools by a Sexual Offender on (03) 9670 5111.
  • We provide a free first phone conference.
  • Download our free booklet to learn more about the Investigation and Court process.
The Magistrates’ Court generally hears these charges.
 
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 the Police walking around the outside of a children’s dance hall.
What is the legal definition of Loitering Near Schools?
This offence occurs 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.

“Were you hanging around a school?”
Legislation
The section that covers this offence is section 49N of the Crimes Act 1958:

Loitering Near Schools etc. By Sexual Offender
  1. A person (A) commits an offence if—
    1. A has been found guilty of a relevant offence; and
    2. A loiters at or near a place; and
    3. the place is—
      1. a school, a children’s service centre or an education and care service premises; or
      2. 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
    4. A knows that the place is—
      1. a school, a children’s service centre or an education and care service premises; or
      2. 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.
  2. A person who commits an offence against subsection (1) is liable to level 6 imprisonment (5 years maximum).
  3. In this section—

    “children’s services centre “means a place at which a children’s service within the meaning of the Children’s Services Act 1996 operates;

    “education and care service premises “means a place at which an education and care service (other than a family day care service) within the meaning of the Education and Care Services National Law (Victoria) educates or cares for children;

    “relevant offence” means—
    1. a sexual offence; or
    2. murder where there are reasonable grounds to believe that a sexual offence was also committed on the victim; or
    3. an offence against—
      1. section 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 this Act 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. section 168A, 168B or 168C of the Police Offences Act 1958 ; or
      6. a 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);

    “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); 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; 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).
  4. If A has at any time been found guilty of an offence against a law of another State or a Territory of the Commonwealth which creates an offence substantially similar to a sexual offence, that finding of guilt must be taken for the purposes of this section to be a finding of guilt of a sexual offence.1
Elements of the offence
The accused will be found guilty if the prosecution proves the following elements beyond reasonable doubt:

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’.2

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 at 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 at 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.


[1] Australian legal Information Institute. “Crimes Act 1958 – Section 49N: Loitering Near Schools etc. By Sexual Offender.” Austlii.edu.au. http://classic.austlii.edu.au/au/legis/vic/consol_act/ca195882/s49n.html (accessed June 19, 2020).
[2] https://www.dictionary.com/browse/loitering

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