Child Sexual Offences By A Person In Care, Supervision Or Authority

Recently in September 2022, a teacher at a Perth Catholic College pleaded guilty and was sentenced in respect of 10 charges of child sexual offences against a student who at the time of offending was 16 and 17 years old. Some of the offending took place at the school and other offending occurred in the student’s home, while the offender was being paid to tutor the student privately.

Wallace J described the case as a “very clear example of grooming a vulnerable teenager in a situation of clear power and authority disparity.” In light of the seriousness of the offending, the court imposed a term of imprisonment of 6 years and 2 months.

The court described the above relationship as a “mentor/mentee relationship” and was characterised by the position of power that the teacher held over the student. Sexual offending characterised by these kinds of power dynamics are captured within s 322 of the Criminal Code.

What is the offence?

Section 322 of the Criminal Code provides that if a person who cares for, supervises or has a child in their authority:

• sexually penetrates the child commits a crime and is liable for 10 years imprisonment;
• procure, incite or encourage the child to engage in sexual behaviour commits a crime and is liable for 10 years imprisonment;
• indecently deal with the child commits a crime and is liable for 5 years imprisonment;
• procure, incite or encourage the child to do an indecent act commits a crime and is liable for 5 years imprisonment; or
• indecently record the child commits a crime and is liable for 5 years imprisonment.

For the purposes of s 322 of the Criminal Code, the definition of a child is someone who is aged between 16 and 18. This provision would also apply to someone who, in the absence of positive evidence as to age, was 16 or over but appeared to be under 18.

Is there a defence?

It is not a defence if the person believed on reasonable grounds that the child was over the age of 18.

It is a defence if the person was lawfully married to the child.

Scope of care, supervision or authority

Section 322 is directed towards the protection of young people from being exploited by those who have some degree of power over them. It also recognises how these relationships are marked by imbalances in power arising from factors such as social position and age. The existence of disparities in power may lead to a person exploiting their superior position to take advantage of the influence that arises from their position over another.

Whether the child was in the care, supervision or authority of the accused is determined by the factual circumstances of the case and is a question ultimately decided by the jury. The words “care”, “supervision” and “authority” are not the same and denote different meanings. The facts of a case may lend themselves to establishing one or all three categories. In any event, it will be satisfied where at least one category is established.

In essence, the offence will be proven where:

• sexual activity between person and child under the age of 18 has occurred; and
• a relationship of care, supervision or authority existed.

Examples of relationships of care, supervision or authority

The following are examples of relationships within the scope of the provision:

• Guardian;
• Employer;
• Mentor; and
• Teacher

This is not a definitive list nor is it determinative. Whether a care, supervision or authority relationship existed is dependent on the facts of the case.

Seek Legal Advice

Offences against a child, especially by a person in care, supervision or authority are serious and carry tough penalties upon conviction in the state of Western Australia.

If you have been recently charged with this offence, contact the Andrew Williams Criminal Law Offices and speak with an experienced criminal lawyer. 

You can reach us on (08) 9278 2575.