Sexual Penetration of a Child Under 16 – Victoria, Australia

Which court will the case be heard in?

This is not the kind of charge that will be heard in the Magistrates’ Court. Sexual Penetration of a Child Under 16 is an indictable offence that carries a significant penalty.

This charge is likely to be heard in the higher courts. Any indictment or summons for this charge will generally be before a judge in the County Court.

The statutory provisions

Penetration of a Child Under 16 when:

• The accused took part in an act of sexual penetration with the complainant;
• The accused intended to take part in that sexual act of penetration; and
• The complainant was under the age of 16 at the time the sexual penetration took place.

Until 22 October 2014, the offence contained an additional element which states that for children aged between 12 and 16, the prosecution also had to prove that the child was not married to the accused. This was removed by section 5 of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic) and is no longer a requirement.

Legislation — Section 49B of the Crimes Act 1958

The law for this offence can be found in section 49 B of the Crimes Act 1958:

Sexual penetration of a child under the age of 16

1. A person (A) commits an offence if—
   
   1. A intentionally—
      
      1. sexually penetrates another person (B); or
      2. causes or allows B to sexually penetrate A; or
      3. causes B—
         
         1. to sexually penetrate themselves; or
         2. to sexually penetrate another person (C); or
         3. to be sexually penetrated by C; and
   2. B is a child under the age of 16 years.
2. A person who commits an offence against subsection (1) is liable to level 4 imprisonment (15 years maximum).
3. The standard sentence for an offence against subsection (1) is 6 years.¹

The elements in detail

Sexual Penetration of a Child Under 16 has the following three elements, all of which the prosecution must prove beyond reasonable doubt:

Element 1 – Sexual Penetration Occurred

The accused took part in an act of sexual penetration with the complainant

When the alleged penetration is by a penis, it may be of the vagina, anus, or the mouth of another person. When penetration is by a part of the body (a finger, for example) or by some other object, other than for medical or hygienic purposes, it may be of the vagina or the anus, but not the mouth.

The accused’s body part or object does not need to have gone all the way into the other person’s vagina, anus or mouth; even slight penetration is enough. However, mere touching of the relevant body part is not enough; there must have been actual penetration to some extent.²

Penetration only needs to have been slight or fleeting and does not need to have been committed for the purposes of sexual gratification.³ If the accused is male, the prosecution is not required to prove that he ejaculated into the woman.

Can the Prosecution prove that you sexually penetrated a child?

Meaning of vagina

Vagina is defined by section 35 of the Act and includes the “external genitalia” as well as a “surgically constructed vagina”. Rape can therefore be committed against transsexuals.

Element 2 – The Act Was Intentional

The accused intended to take part in that act of sexual penetration

The second element that the prosecution must prove beyond reasonable doubt is that the sexual penetration was intentional.

Element 3 – The Complainant Was Under 16

The complainant was under the age of 16 at the time the sexual penetration took place

The prosecution must establish that the occasions specified occurred during a period where the complainant was under 16 years of age.

Possible defences: Sexual Penetration of a Child Under 16

Consent is not a defence to a charge under this section save for circumstances where the child was aged 12 or older at the time of the alleged offence.4 Consent is only available as a defence where:

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
   This belief is a matter which the accused must prove on the balance of probabilities. That is, the accused must prove that it is more likely than not that he or she believed on reasonable grounds that the complainant was aged 16 years or over for consent to be available as a defence. That is, the accused must satisfy a jury that it is more likely than not that he or she believed, on reasonable grounds, that the complainant was 16 or over.
2. the accused was not more than 2 years older than the child
   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 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);5 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.
   The offence specified in section 49B does not apply if the child is between the ages of 12 and 16 and if the people taking part in sexual penetration were married to each other.

Importantly, subsection 45(4)(4A) of the Act states that if consent is relevant, the prosecution carries the burden of proving the lack of consent.

Another defence that is often run in relation to Sexual Penetration of a Child Under 16 is a factual defence. Either the accused did not do it, or it never happened. 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 depending on the particular circumstances of each case. These include false allegations, mistaken identity, duress and, importantly, the prosecution bears the burden of proving matters alleged beyond reasonable doubt, and in many cases they are not able to meet this burden.

In such cases of Sexual Penetration of a Child Under 16 Years, it is important that your defence team looks at inconsistencies that may arise in the different stages of the trial process. If you have been charged with an offence under this section or are being interviewed in relation to this offence, it is important that you seek advice from a criminal defence lawyer as soon as possible. A finding of guilty is likely to result in a sentence that involves an immediate term of imprisonment.

In a trial, the questions a judge will ask the jury to consider (when consent is in issue) are:

1. Did the accused take part in an act of sexual penetration with the complainant?
   If yes, then he will ask question 2. If no, then the accused is not guilty of Sexual Penetration of a Child Under 16.
2. Did the accused intend to take part in an act of sexual penetration with the complainant?
   If yes, then he will ask question 3. If no, then the accused is not guilty of Sexual Penetration of a Child Under 16.
3. Was the complainant under the age of 16 at the time the act of sexual penetration took place?
   If yes, then he will ask question 4. If no, then the accused is not guilty of Sexual Penetration of a Child Under 16.

Consent is only relevant if you are satisfied that the defence has proven, on the balance of probabilities, both that:

1. The accused believed that the complainant was aged 16 or older at the time the act of sexual penetration took place; and
2. The accused’s belief that the complainant was aged 16 or older was based on reasonable grounds.

If consent is relevant, the prosecution must prove, beyond reasonable doubt, that:

1. The complainant did not consent to taking part in the act of sexual penetration; and
2. The accused was aware that the complainant was not or might not be consenting. A judge will ask:

1. Did the sexual penetration occur without the complainant’s consent?
   If yes, then he will ask question 5. If no, then the accused is not guilty of Sexual Penetration of a Child Under 16.
2. At the time of sexual penetration, was the accused aware that the complainant was not consenting or that s/he might not be consenting?
   If yes, then the accused is guilty of Sexual Penetration of a Child Under 16 (so long as you also answered yes to questions 1, 2, 3 and 4). If no, then the accused is not guilty of Sexual Penetration of a Child Under 16.

Maximum penalty for section 49B of the Crimes Act 1958

The maximum penalty depends on the age of the child. If the child was under the age of 12, then the maximum prison term is 25 years. If under the care, supervision, or authority of the accused, the penalty is a maximum imprisonment of 15 years and, in any other circumstances, a maximum imprisonment of 10 years.

Sentencing for Sexual Penetration of a Child Under 16

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

In Victoria, penalties for certain sex offences have become more punitive. A plea of guilty to Sexual Penetration of a Child Under 16 Years of Age committed on or after 20 March 2017 is a Class 1 offence and will result in a prison sentence. Parliament has also introduced a standard sentence scheme which a sentencing Judge must use as a guidepost in sentencing. The standard sentence for Sexual Penetration of a Child Under 16 Years of Age is 6 years’ imprisonment.

For historical cases of Sexual Penetration of a Child Under 16 Years of Age where a substantial time has passed since the offending, a properly conducted plea in mitigation may result in the sentencing judge placing you on a Community Correction Order or imposing a Suspended Sentence.

In the case of DPP v Vella [2017] VCC 71, the County Court Judge said that the law does not accept that there is an equal power balance in a sexual relationship between a child and an adult. ‘The law is intended to protect young people from premature sexual relationships, and there is a presumption that harm will flow from this type of offending’.

Sentencing in the higher courts of Victoria

Sentencing statistics in the higher courts show that imprisonment is the most common outcome for sexual penetration of a child aged 12 to under 16, imposed in 75% of cases. Community correction orders account for 21.5% of sentences, while youth justice centre orders represent 2.6% of outcomes. A further 1% of matters fall into other sentencing categories. These figures indicate that there is a strong likelihood of imprisonment when this offence is dealt with in the higher courts. The distribution reflects the seriousness with which courts treat offences involving children, although the final sentence will depend on the specific circumstances of the case and the offender’s personal background.