There exist in the Commonwealth Criminal Code criminal offence that relate to child sex offences committed on children aboard. These Commonwealth Offences apply across all Australian States, not just NSW.
Section 272.8 of the Criminal Code 1995 (Cth) provides for the protection of children against sexual offences and sexual tourism/exploitation of children.
When prosecuting this type of persistent sexual abuse, it is not necessary for the prosecution to prove dates or exact circumstances of the offence. As long as the period in which the offence was committed can be identified with “reasonable particularity” and the nature of the crime can be described, the charge can be proved.
The Court is not required to be satisfied that the events took place on a specific day or even in any specific order.
Australia has tough laws against child sexual abusers overseas but have not yet committed the crime. Police has the power to intervene even before the alleged offender has even left Australia. “Grooming” a child to later engage in sexual activity outside Australia is also punishable by prison for 12 years.
The offence is committed if the defendant groomed a person under 16 years, or believed the person they were attempting to groom was under 16 years. The person they may have been grooming does not even have to be a real person. This is important because it means that the offence is still committed if a detective or police officer poses as a child to catch sex offenders.
Mistaken belief about the age of the child is a defence – if the offender believed the person to be at least 16 at the time, they will not have committed an offence. However, it is up to the defence to prove that this was their belief at the time and the judge or jury can take into account whether this mistake was reasonable or not.
Offences involving a young person: Having sexual intercourse with a young person (aged between 16 and 18) overseas with a person over whom the offender has a position of trust or authority is also a punishable offence and is punishable with 10 years’ imprisonment. There is no distinction in sexually abusing a very young child and a teenager, although this may be reflected in sentencing.
The penalties differ depending on the offense committed, with the most serious offenses coming with a maximum 25 year imprisonment.
The penalties for engaging in sexual intercourse with a child under 16 years outside Australia is 20 years imprisonment. It is also an offence to cause the child to have sex with someone else in the presence of the defendant. This crime is also punishable by 20 years imprisonment.
Sexual activity not including intercourse:
Engaging in any sexual activity with a child under 16 other than sexual intercourse carries a jail term of 15 years.
These offences are ones of ‘absolute liability.’ This means that there are no fault elements that must be proved – it is enough that the act was committed, and there is no defence of mistake.
For example, if the person engaging in sexual intercourse with a 14-year-old overseas believed the person to be 16, they are still guilty of an offence.
Engaging in sexual activity in front of a child:
It is also an offence to have sex in front of a child if the intention is for the offender to derive gratification from the child’s presence. In court, it is up to the defence must prove that they did not intend to derive gratification from the child’s presence.
Committing any of the above-mentioned offences with children under certain aggravated circumstances comes with a maximum penalty of 25 years imprisonment. The three categories of aggravated offences are:
People in positions of trust or authority include parents, grandparents, social workers, a teacher of the abused person, their sports coach, employer, nurse or medical practitioner, religious leader or members of the police force.
Persistent sexual abuse:
Persons who commit three instances of any of the above crimes on separate occasions can be charged with persistent sexual abuse. The penalty for persistent sexual abuse is 25 years imprisonment.
In NSW, a court can impose any of the following penalties for a Child Sex Offences by Australians in Foreign Countries charge of:
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