The Offence Of Persistent Sexual Conduct With A Child

In October 2020, Tame was named Tasmanian Australian of the Year 2021. The award was in recognition of her efforts in pushing for legal reform and raising public awareness about the impacts of sexual violence.

Ms Tame was groomed when she was 15 and then repeatedly sexually abused by her 58-year-old teacher, Nicholas Bester, who was charged and convicted of the offence of "maintaining a sexual relationship with someone under the age of 17". He was also convicted and sentenced for possessing child pornography.

In sentencing Mr Bester, Justice Helen Wood said Tame had been "particularly vulnerable given her mental state" and that her abuser "knew her psychological condition was precarious" and had "betrayed the trust of the child's parents and the school's trust in an utterly blatant fashion."

In WA, the kind of offending described above would fall under the offence of persistent sexual conduct pursuant to s 321A of the Criminal Code. This offence (like all other child sexual offences) is treated seriously by the criminal law because of the paramount concern of protecting children from abuse.

Section 321A: Persistent Sexual Conduct With A Child

Section 321A of the 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 to the charge of persistent sexual conduct with a child for 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 does 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. 

In sentencing an offender for an offence against s 321A of the Code, the sentencing judge must turn their mind to the following factors in light of the individual facts and circumstances pertaining to the case before them (as articulated in R v GP (1993) 18 WAR 196):

• the nature of the conduct in question; the degree of perversion or deviance demonstrated;
• the relative ages of the offender and the victim;
• whether the offender was in a position of trust or authority with respect to the victim, thus better enabling the commission of the offence;
• whether there was, apart from such position of trust or authority, any element of coercive or forceful behaviour on the part of the offender;
• the circumstances of the victim and the degree to which that person was not only taken advantage of, but his or her corruption was contributed to by the commission of the offence;
• whether the offence was repeated and if so over what period or periods of time so as to enable the court to consider whether it was of an isolated character or displayed recidivism on the part of the offender;
• the degree of remorse displayed and whether any such contrition has been effectively followed up by determined efforts to achieve the offender's rehabilitation;
• the age of the offender;
• the extent to which the victim's co-operation and the commission of the offence was secured by friendship or by the offer of some reward;
• the actual impact of the commission of the offence upon the child established by a victim impact statement or otherwise;
• whether the offender has a prior relevant criminal history; and
• the prevalence of the offence in the community at the time and the degree to which particular circumstances indicate a heightened need to seek to achieve the protection of the community and particularly of young persons from the commission of such offences, whether with or without consent.

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This post is informative only. It is not legal advice. If you have a specific legal matter you’d like to discuss, please contact us.

PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.