Australian Capital Territory Current Acts Australian Capital Territory Current Acts(1) A person commits an offence if the person—
(a) is an adult; and
(b) engages in a relationship with a child, or a young person under the special care of the adult, that involves more than 1 sexual act.
Maximum penalty: imprisonment for 25 years.
(2) For subsection (1) (b)—
(a) a "relationship" includes repeated contact, interaction, engagement or association, of a sexual nature or otherwise; and
(b) the relationship may have started, or started and ended, before the amendment day; and
(c) 1 or more of the sexual acts may have occurred before the amendment day; and
(d) a sexual offence that could be charged and proved under section 66B (Course of conduct charge—child sexual offences) can be 1 of the sexual acts.
(3) For a person to be convicted of an offence against subsection (1), the trier of fact must be satisfied beyond reasonable doubt that the relationship existed.
Note For circumstances in which a majority verdict is a sufficient verdict in a proceeding for an offence against s (1), see the Juries Act 1967
, s 38.
(4) However, in a proceeding for an offence against subsection (1), there is no requirement for—
(a) the prosecution to allege the particulars of a sexual act that would be necessary if the act were charged as a separate offence; or
(b) the trier of fact to be satisfied of the particulars of a sexual act that it would need to be satisfied of if the act were charged as a separate offence; or
(c) if the trier of fact is a jury—all the members of the jury to agree on the same sexual acts involved in the relationship.
(5) In a proceeding for an offence against subsection (1)—
(a) the prosecution is required to allege the particulars of the period of the relationship; and
(b) without limiting the Criminal Code
, section 64 (2) (Extension of offences if required geographical nexus exists), a geographical nexus exists for this offence if—
(i) any part of the relationship was engaged in inside the ACT; or
(ii) at least 1 of the sexual acts occurred inside the ACT.
(6) For an offence against this section that occurred partly or wholly before 2 March 2018, the maximum penalty is the current maximum penalty, however, for a relationship engaged in over the period mentioned in table 56, column 2, the sentence imposed must not be more than the penalty mentioned in column 3 for that period.
Table 56
|
column 1 item |
column 2 period of relationship |
column 3 penalty |
|---|---|---|
| 1 | wholly before 24 December 1991 | the lesser of— (a) the current maximum penalty; and (b) either— (i) if 2 or more sexual acts alleged to be involved in the relationship are found to have occurred—the total of the maximum penalties for each offence constituted by the sexual acts; or (ii) in any other case—the highest maximum penalty for the offences constituted by the sexual acts alleged to be involved in the relationship |
| 2 | started before, on or after 24 December 1991 and ended before 2 March 2018 | the lesser of— (a) the current maximum penalty; and (b) the 1991 maximum penalty |
| 3 |
started on or after 24 December 1991 and ended on or after 2 March 2018 | |
| 4 | started on or after 2 March 2018 |
Example—item 1, column 3, par (b) (i)
An offender is convicted of an offence against this section for a relationship that occurred wholly before 24 December 1991. The jury agrees that 3 acts of indecency occurred. The maximum penalty for committing an act of indecency at the time the acts occurred is 5 years imprisonment. A court may impose a sentence for an offence against this section of up to the total of the maximum penalty for the 3 acts of indecency, ie 15 years imprisonment.
Example—item 1, column 3, par (b) (ii)
An offender is convicted of an offence against this section for a relationship that occurred wholly before 24 December 1991. The sexual acts that were alleged to be involved in the relationship included conduct that, if sufficiently particularised, would have constituted an act of indecency in the third degree and 3 acts of indecency without consent. The jury agrees that 2 sexual acts occurred but were not unanimous about which ones. The maximum penalty for the sexual acts at the time the acts occurred are 10 years and 5 years imprisonment respectively. A court may impose a sentence for an offence against this section of up to the highest maximum penalty for the alleged sexual acts, ie 10 years imprisonment.
(7) A person—
(a) may be charged on a single indictment with, and convicted of and punished for, both—
(i) an offence against subsection (1); and
(ii) 1 or more sexual offences committed by the person against the same child or young person under the special care of the person during the alleged period of the relationship; but
(b) must not be required to serve the sentences for the offence against subsection (1) and the sexual offences consecutively.
(8) Except as provided by subsection (7), a person cannot be convicted of an offence—
(a) against subsection (1) if the person has already been convicted or acquitted of an offence constituted by 1 or more of the sexual acts alleged to be involved in the relationship; or
(b) constituted by a sexual act against a child or young person under the special care of the person if the sexual act is alleged to have been committed during the period for which the person has already been convicted or acquitted of an offence against subsection (1) in relation to the child or young person.
(9) For subsection (8), a person is taken not to have been convicted of an offence if the conviction is quashed or set aside.
(10) A proceeding for a charge for an offence under this section must not be started without the consent of the director of public prosecutions.
(11) The Criminal Code
, chapter 2 (other than the applied provisions) does not apply to an offence against this section.
(12) In this section:
1991 maximum penalty means the maximum penalty for this offence applying on 24 December 1991.
Note This section was previously s 92EA which was inserted into this Act by the Crimes (Amendment) Act (No 3) 1991
(A1991-90). See that Act for the maximum penalty for this offence applying on 24 December 1991.
"amendment day" means the day the Royal Commission Criminal Justice Legislation Amendment Act 2020
, section 3 commenced.
"child" means a person who is under the age of 16 years.
"current maximum penalty" means the maximum penalty mentioned in subsection (1).
"sexual act"—
(a) means—
(i) an act that constitutes an offence against this part; or
(ii) an act that constituted an offence against a sexual offence provision of this Act previously in force (a historical offence ); or
(iii) an attempt to commit an act that constitutes or constituted an offence against this part or a historical offence; or
(iv) an act that, if particulars of the time when or place where the act took place were sufficiently particularised, would constitute or have constituted an offence against this part or a historical offence at the time the act occurred; but
(b) does not include an act referred to in—
(i) section 55 (3) (Sexual intercourse with young person) if the person who committed the act establishes the matters referred to in section 55 (5) that would be a defence if the person had been charged with an offence against section 55 (3); or
(ii) section 61 (3) (Act of indecency with young people) if the person who committed the act establishes the matters referred to in section 61 (5) that would be a defence if the person had been charged with an offence against section 61 (3).
"special care"—see section 55A (2).
"young person" means a person who is at least 16 years old, but not yet an adult.