Procuring a Sexual Act By Fraud

Which court will the case be heard in?

A charge of Procuring a Sexual Act By Fraud is always heard in the County Court before a judge and jury.

What is the legal definition of Procuring a Sexual Act by Fraud

The legal definition of Procuring a Sexual Act by Fraud is when somebody (A):

1. Makes a false or misleading representation, which they know is or probably is false or misleading; and
2. As a result of (A)’s false or misleading representation, another person (B) takes part in a sexual act with another person; and
3. (A) intends that, as a result of their false or misleading representation, the sexual act will occur.

The sexual act may occur at the time of the false or misleading representation or at a later time.

A false or misleading representation may be made by words or conduct and may be implicit or explicit.

Examples of Procuring a Sexual Act by Fraud

Someone (A) pretends to be extraordinarily wealthy and promises to give another person (B) expensive gifts if (B) agrees to have sex. The other person (B) agrees and has sex with (A), and then later finds out that (A) has very little money and is incapable of giving (B) gifts.

Elements of the offence

To be found guilty of this offence, the prosecution must prove the following elements beyond a reasonable doubt:

The Accused (‘A’):

1. Makes a false or misleading representation, which they know is or probably is false or misleading; and
2. As a result of (A)’s false or misleading representation, another person (B) takes part in a sexual act with another person; and
3. (A) intends that, as a result of their false or misleading representation, the sexual act will occur.

Legislation

The section that covers this offence is section 45 of the Crimes Act 1958:

Procuring Sexual Act By Fraud

1. A person (A) commits an offence if—
   1. A makes a false or misleading representation; and
   2. A knows that—
      1. the representation is false or misleading; or
      2. the representation is probably false or misleading; and
   3. as a result of A’s representation, another person (B) takes part (whether at the time the representation is made or at a later time) in a sexual act with A or another person; and
   4. A intends that, as a result of A’s representation, an outcome mentioned in paragraph (c) will occur.
2. A person who commits an offence against subsection (1) is liable to level 6 imprisonment (5 years maximum).
3. For the purposes of subsection (1), a false or misleading representation may be made by words or conduct (including by omission) and may be explicit or implicit.¹

Defences

• There was no misrepresentation.
• The person making the misrepresentation did not intend, as a result of their misrepresentation, that the sexual act would occur.

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

• Was the representation misleading?
• How can they prove that the person making the misrepresentation intended the sexual act to occur?

Maximum penalty for section 45 of the Crimes Act 1958

Procuring a Sexual Act by Fraud has a maximum penalty of 5 years imprisonment.

Sentencing

If you decide to plead guilty to Procuring Sexual Act by Fraud, it is open to the Court to sentence you to a term of imprisonment. This offending can attract harsh punishment because it normally results in the public’s trust being undermined. Also, because this offending involves the fraudulent production of documents and exploitation of the internet (Onnis v The Queen [2013] VSCA 271). However, the Judge also has other sentencing alternatives available to them such as a Community Correction Order. Speak to us about how you can increase your prospects of avoiding a prison sentence.

Generally speaking, you can improve your prospects of receiving a Community Correction Order by showing the Court that you are committed to treatment by undergoing your own treatment prior to the plea hearing. Our experienced lawyers can direct you to appropriately qualified experts who you can engage with before your plea hearing.

Character references from your social network also have an important role to play in a plea in mitigation. The Courts are assisted when they can read or hear what your social network think if you.

The Supreme Court of Victoria stated that a Community Correction Order is an appropriate sentencing tool to achieve punishment and treatment.


_{[1] Australian legal Information Institute. “Crimes Act 1958 – Section 45: Procuring sexual act by fraud.” Austlii.edu.au. http://classic.austlii.edu.au/au/legis/vic/consol_act/ca195882/s45.html (accessed June 22, 2020).}