Using a carriage service for sexual activity with a person under the age of 16 years is an offence under section 474.25A(1) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 20 years in prison.
To establish the offence, the prosecution must prove beyond reasonable doubt that:
- You were at least 18 years of age
- You engaged in sexual activity with another person
- You did so by the use of a carriage service, and
- The other person was under 16 years of age.
‘Sexual activity’ includes a broad range of conduct of a sexual nature, including sexual intercourse, sexual touching and masturbation.
The offence encompasses the use of a carriage service to see or hear, in real time, a person under 16 years of age engage in sexual activity as well as engaging in sexual activity that was seen or heard, in real time, by a person under 16 years of age.
A ‘carriage service’ is:
‘a service for carrying communications by means of guided and/or unguided electromagnetic energy’, which includes telephone calls, text messages and internet transmissions such as emails and social media messaging when determining a person’s age at a particular time.
The fact-finder (whether judge-alone or jury) may treat as admissible evidence:
- The person’s appearance
- Any medical or other scientific opinion
- Any document that is or appears to be an official or medical record from outside Australia, and
- Any document that appears to be a copy of such a record.
In the case of a jury trial, the judge must warn jurors that they must be satisfied of age requirements beyond a reasonable doubt before they can reach a verdict of guilty.
The age requirement of being under 16 may be satisfied where the other person was above that age, but represented himself or herself as below that age.
You are not guilty of the offence if you establish to the court ‘on the balance of probabilities’ that:
- You believed the other person was at least 16 years of age, or
- The conduct consisted only of the person who was under the age of 16 years being in the presence of another person while sexual activity was engaged in, and you did not intend to service gratification from the child’s presence.
Duress is a defence to the charge.
Using a carriage service to cause a child to engage in sexual activity with another person is an offence under section 474.25A(2) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 20 years in prison.
To establish the offence, the prosecution must prove beyond reasonable doubt that:
- You engaged in conduct relating to a person under the age of 16 years (‘the child’)
- Your conduct caused the child to engage in sexual activity with a person over the age of 18 years (“the participant”), and
- That activity occurred using a carriage service.
‘Sexual activity’ includes a broad range of conduct of a sexual nature including sexual intercourse, sexual touching and masturbation.
The offence encompasses the use of a carriage service to see or hear, in real time, a person under 16 years of age engaging in sexual activity as well as engaging in sexual activity that was seen or heard, in real time, by a person under 16 years of age.
A ‘carriage service’ is:
‘a service for carrying communications by means of guided and/or unguided electromagnetic energy’, which includes telephone calls, text messages and internet transmissions such as emails and social media messaging when determining a person’s age at a particular time.
The fact-finder (whether judge-alone or jury) may treat as admissible evidence:
- The person’s appearance
- Any medical or other scientific opinion
- Any document that is or appears to be an official or medical record from outside Australia, and
- Any document that appears to be a copy of such a record.
In the case of a jury trial, the judge must warn jurors that they must be satisfied of age requirements beyond a reasonable doubt before they can reach a verdict of guilty.
The age requirement of being under 16 may be satisfied where the other person was above that age, but represented himself or herself as below that age.
You are not guilty of the offence if you establish to the court ‘on the balance of probabilities’ that:
- You believed the other person was at least 16 years of age, or
- You believed the participant was at least 18 years of age, or
- The conduct consisted only of the person who was under the age of 16 years, being in the presence of another person while sexual activity was engaged in, and you did not intend to derive gratification from the presence of the child’s presence.
Duress is a defence to the charge.
What is Child Abuse Material?
Child abuse material is defined by the Criminal Code Act 1995 (Cth) as:
Material that depicts a person, or a representation of a person, who is, or appears to be, in a way that reasonable persons would regard as offensive:
- Under 18 years of age, and
- A victim of torture, cruelty or physical abuse.
Or:
Material that describes a person who is, or is implied to be, in a way that reasonable persons would regard as offensive:
- Under 18 years of age, and
- A victim of torture, cruelty or physical abuse.
Or:
Material that depicts a person, or a representation of a person who is, or appears to be, in a way that reasonable persons would regard as offensive:
- Under 18 years of age, and
- Engaged in, or appearing to be engaged in, a sexual pose or sexual activity, whether or not in the presence of other persons, or in the presence of a person engaged in, or appearing to be engaged in, a sexual pose or sexual activity.
Or:
Material whose dominant characteristic is the depiction, for a sexual purpose, in a way that reasonable persons would regard as offensive:
- A sexual organ or anal region of a person who is, or appears to be, under 18 years of age, or a representation of such a sexual organ anal region, or
- The breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age.
Or:
Material that describes in a way that reasonable persons would regard as offensive.
A person who is, or is implied to be, under 18 years of age and who is:
- Engaged in, or implied to be engaged in, a sexual pose or sexual activity, whether or not in the presence of other persons, or
- In the presence of a person engaged in, or implied to be engaged in, a sexual pose or sexual activity.
Or:
Material that describes in a way that reasonable persons would regard as offensive.
- A sexual organ or anal region of a person who is, or is implied to be, under 18 years of age, or
- The breasts of a female person who is, or is implied to be, under 18 years of age.
Or:
Material that is a doll or other object intended to be used to simulate sexual intercourse that resembles:
- A person who is, or appears to be, under 18 years of age, or
- Part of the body of such a person.
If you require Expert Legal Advice from an Experienced Criminal Defence Lawyer for your Use Carriage Service for Sexual Activity Child Under 16 matter, call Sydney Criminal Lawyers® today on (02) 9261 8881.
The Legislation
474.25A Using a carriage service for sexual activity with person under 16 years of age
Engaging in sexual activity with child using a carriage service
(1) A person commits an offence if:
(a) the person engages in sexual activity with another person (the child) using a carriage service; and
(b) the child is under 16 years of age; and
(c) the person is at least 18 years of age.
Penalty: Imprisonment for 15 years.
Causing child to engage in sexual activity with another person
(2) A person (the defendant) commits an offence if:
(a) the defendant engages in conduct in relation to another person (the child); and
(b) that conduct causes the child to engage in sexual activity with another person (the participant) using a carriage service; and
(c) the child is under 16 years of age when the sexual activity is engaged in; and
(d) the participant is at least 18 years of age when the sexual activity is engaged in.
Penalty: Imprisonment for 15 years.
(3) The fault element for paragraph (2)(b) is intention.
Defence—child present but defendant does not intend to derive gratification
(4) It is a defence to a prosecution for an offence against subsection (1) or (2) if:
(a) the conduct constituting the offence consists only of the child being in the presence of a person while sexual activity is engaged in; and
(b) the defendant proves that he or she did not intend to derive gratification from the presence of the child during that activity.
Note 1: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Note 2: For other defences relating to this offence, see section 474.29.
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