Persistent Sexual Conduct With A Child Offences
What is the offence?
Section 321A of the Criminal Code provides that a person who persistently engages in sexual conduct with a child under the age of 16 years is guilty of a crime and is liable to imprisonment of 20 years. Anyone charged with this offence will have their matter heard in the District Court.
Under the relevant section of the Code, a person ‘persistently engages in sexual conduct’ where that person does a ‘sexual act’ with the child on 3 (or more) separate occasions. In relation to what constitutes a ‘sexual act’, this includes the following acts:
- Indecent dealing with a child in accordance with ss 320(4) and 321(4) of the Code;
- Procuring, inciting or encouraging a child to engage in sexual behaviour in accordance with ss 320(3) and 321(3) of the Criminal Code; and
- Sexually penetrating a child in accordance with ss320(2) and 321(2) of the Code.
The ‘sexual acts’ can be different or the same and it does not matter if some of the acts occurred outside the jurisdiction of WA, provided at least one sexual act did occur in WA.
Notably, a person may be charged for each alleged ‘sexual act’ committed against a child, as well as, the charge of persistent sexual conduct with a child.
Is there a defence?
Section 321A(9) of the Code provides that it is a defence the accused to prove that they believed, on reasonable grounds, that the child was of or over the age of 16 years and that the accused was not more than 3 years older than the child.
Section 321A(1) of the Code also raises a defence where the person charged was lawfully married to the child.
What matters will the court consider at sentencing for the offence?
The court has made it clear that child sexual offences are very serious, in particular, because of the vulnerability of child victims and the incalculable harm caused by this kind of offending conduct.
The seriousness of this offending is reflected in the court imposing ‘firm’ sentences. Protection of children and punishment of the offender are key considerations in the sentencing exercise. Other important considerations include the need for general and personal deterrence. This means that personal factors of the offender (e.g. no criminal history) will bear less weight on the ultimate sentencing outcome.
Sexual offending against children will generally result in a custodial sentence to be served immediately. A non-custodial sentence can be imposed only in rare and exceptional circumstances.
Seek Legal Advice
Offences against a child, especially persistent sexual conduct with a child offences are serious matters and carry tough penalties upon conviction in the state of Western Australia.
You can reach us on (08) 9278 2575.