Persistent Sexual Abuse of a Child Under 16

Which court will the case be heard in?

This charge is heard in the higher courts. Any indictment or summons for this charge will generally be heard by a Judge in the County Court.

The statutory provisions for Persistent Sexual Abuse of a Child Under 16

This offence is governed by section 49J of the Crimes Act 1958 (‘the Act’).

Persistent Sexual Abuse of a Child Under the Age of 16

1. A person (A) commits an offence if—
   1. A sexually abuses another person (B) on at least 3 occasions during a particular period; and
   2. B is a child under the age of 16 years during the whole of that period.
2. A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).

• 2A. The standard sentence for an offence against subsection (1) is 10 years.

3. It is not necessary that the alleged acts be of a similar nature or constitute an offence under the same provision.
4. It is not necessary to prove conduct constituting sexual abuse with the same degree of specificity as to date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted by that conduct instead of an offence against subsection (1).
5. For the purposes of subsection (1), A sexually abuses B if A engages in conduct that would involve the commission by A of any of the following—
   1. an offence against a provision of Subdivision (8A) (rape, sexual assault and associated sexual offences);
   2. an offence against section 49A(1) (sexual penetration of a child under the age of 12);
   3. an offence against section 49B(1) (sexual penetration of a child under the age of 16);
   4. an offence against section 49D(1) (sexual assault of a child under the age of 16);
   5. an offence against section 49F(1) (sexual activity in the presence of a child under the age of 16);
   6. an offence against section 49H(1) (causing a child under the age of 16 to be present during sexual activity);
   7. an offence against a provision of Subdivision (8C) (incest).
6. Nothing in this section affects the operation of any exception or defence applicable or available to A in respect of the offence constituting the sexual abuse.
7. If, on the trial of A for an offence against subsection (1), the jury is not satisfied that A is guilty of that offence but is satisfied that A engaged in conduct during the particular period that constitutes one or more instances of an offence against a provision referred to in subsection (5)—
   1. the jury—
      1. must find A not guilty of the offence against subsection (1); and
      2. may find A guilty of the one or more instances of an offence against a provision referred to in subsection (5); and
   2. A is liable to the penalty for any offence of which, in accordance with this subsection, A is found guilty.
8. Subsection (7) does not restrict the operation of section 239 of the Criminal Procedure Act 2009.
9. A prosecution for an offence under subsection (1) must not be commenced without the consent of the Director of Public Prosecutions.¹

Persistent Sexual Abuse of a Child Under 16: The elements

Persistent sexual abuse of child under the age of 16 has the following three elements, all of which the prosecution must prove beyond reasonable doubt:

• On at least three occasions, the accused committed acts which would constitute an offence under a provision of Subdivisions 8A, 8B or 8C of the Crimes Act;
• These acts were committed against a child who was under the age of 16 at the time; and
• The accused was not married to the child at the relevant time.

Element 1 – On at least three occasions, the accused committed acts which would constitute an offence under a provision of Subdivisions 8A, 8B or 8C of the Crimes Act;

As mentioned above, this charge was enacted to overcome problems that are said to often arise when a young child who has been the subject of repeated sexual abuse over a period of time is unable to identify which particular sexual acts occurred.² Whilst a charge under this section reduces the specificity with which the relevant act must be proved, the Prosecution must clearly identify the evidence that is to be relied upon on each so called “occasion”.

A complainant cannot simply allege that a sexual offence happened on three occasions. Proof of the actual commission of the acts which constitute the specified sexual offence is required.³ Each occasion must have a distinguishing feature from the other. It is not sufficient for a complainant to say the accused “would normally do this” when recollecting on something that typically occurred in terms of the offending.⁴

It is also important to note that the sexual offence that occurred on the three separate occasions need not be the same type of offending. For example, it may be alleged that sexual penetration took place on one occasion and an indecent act on the next.

In essence, a complainant must still be able to account for occurrences surrounding each of the acts alleged in sufficient detail to identify each occasion.

Element 2 – These acts were committed against a child who was under the age of 16 at the time

For a charge of Persistent Sexual Abuse of a Child Under 16, the Prosecution must establish that the occasions specified occurred during a period where the complainant was under 16 years of age. Whilst there is a lack of specificity that accompanies this charge, the complainant must be able to identify a time range. Often, specific events such as what class they were in school or where they resided at the time will assist in establishing the child’s age group. It is not uncommon for this charge to cover a large period of time. For instance, a complainant may allege that one occasion of sexual abuse occurred when they were between the ages of 7 and 13 years of age.

Element 3 – The accused was not married to the child at the relevant time.

A defence is available if the Accused is married to the victim.

Defences

In a trial, the questions a judge will ask the jury to consider (in regard to recklessness as the culpable factor) are:

1. Was the complainant aged under 16 at [insert relevant dates]?
   If yes, then he will ask question 2.
   If no, then the accused is not guilty of Persistent Sexual Abuse of a Child.
2. Has the prosecution proved that the accused was not married to the complainant during this period?
   If yes, then he will ask 3.
   If no, then the accused is not guilty of Persistent Sexual Abuse of a Child.
3. Did the accused commit the offence[s] of [identify relevant sexual offence(s)] against the complainant on at least three occasions between [insert relevant dates]?
   (Consider – See separate document for the elements of [identify relevant sexual offence(s)])
   If yes, then the accused is guilty of Persistent Sexual Abuse of a Child (as long as you also answered yes to questions 1 and 2)
   If no, then the accused is not guilty of Persistent Sexual Abuse of a Child.

Possible defences

We have found that offences of a sexual nature are crimes in which, for a variety of reasons, innocent people are often wrongly charged. A number of defences are potentially available to a charge of Persistent Sexual Abuse of a Child Under 16 depending on the particular circumstances of each case. These include false allegations, mistaken identity, duress and, importantly, the Prosecution bear the burden of proving matters alleged beyond reasonable doubt.

In such cases of Persistent Sexual Abuse of a Child Under 16 Years, it is important that your defence team look at inconsistencies that may arise in the different stages of the trial process. If you have been charged with an offence under this section, it is important that you seek advice from one of our lawyers as soon as you become aware. A finding of guilt is likely to result in a sentence that involves an immediate term of imprisonment as well as a mandatory placing on the Sex Offenders Register for a significant period of time.

Jurisdictional limits

Persistent Sexual Abuse of a Child Under 16 is an indictable offence that carries a significant penalty. The offence carries a 25-year term of imprisonment as the highest possible sentence.

Sentencing

In Victoria, pleading guilty to Persistent Sexual Abuse of a Child Under 16 Years of Age will almost always lead to an immediate term of prison. For offences committed on or after 20 March 2017, a term of imprisonment is mandatory because it is considered a class 1 offence. The standard sentence scheme prescribes that the standard length of the prison sentence is 10 years imprisonment.

Key to a good outcome in a plea of guilty to Persistent Sexual Abuse of a Child Under 16 Years of Age is organising a psychological report to explore whether or not you suffer from a mental illness which entitles you to a sentencing discount. In R v Verdins (2007) 16 VR 269, the Court remarked that specific and general deterrence are less relevant where a person suffers from a mental illness which is connected to the offending.

In DPP v Vella [2017] VCC 71, the sentencing Judge said – ‘it is likely that you would benefit from assistance in the form of counselling to help you to overcome the tendency towards social isolation that may have contributed to the forming of an inappropriate relationship with a young girl’.

Courts treat sexual offences committed against children seriously and pleading guilty can have life-long implications.

Of course, the sentence received will depend on the aggravating and mitigating circumstances of each particular case. These include things such as the offender’s background and prior criminal history as well as the circumstances of the sexual offending.

Please note that suspended sentences were abolished in the higher courts in 2013. Therefore all offences committed on or after 1 September 2013 will not have this available as a sentencing option.

To view sentencing decisions by Victorian County Courts for sexual offences against children, visit this page.

Standard sentences

Any offence committed after 1 February 2018 for the offence of Persistent Sexual Abuse of a Child Under 16 will be subject to standard sentencing.

The standard sentence for the offence of Persistent Sexual Abuse of a Child Under 16 is 10 years.

This is the sentence that, taking into account only the objective factors affecting the seriousness of the offence, is in the middle of the range of seriousness.

For the purposes of assessing objective factors affecting the seriousness of a particular offence, matters personal to a particular offender or class of offenders are irrelevant.

The assessment must be done wholly by reference to the nature of the offending.

When sentencing an offender for a standard sentence offence, a court must give reasons for imposing that sentence. The court must refer to the standard sentence for the relevant offence of Persistent Sexual Abuse of a Child Under 16 and explain how the sentence that it imposed relates to that standard sentence. Standard sentences do not apply to people under 18 years of age at the time of committing the offence.


_{[1] Australian legal Information Institute. “Crimes Act 1958 – Section 49J: Persistent sexual abuse of a child under the age of 16.” Austlii.edu.au. http://classic.austlii.edu.au/au/legis/vic/consol_act/ca195882/s49j.html (accessed June 22, 2020).
[2] R v Macfie [2000] VSCA 173.
[3] R v SLJ [2010] VSCA 16.
[4] Ibid.}