The Offence Of Using Electronic Communication To Procure Child

We are living in a time where we are the most connected that we have ever been. The internet has enabled the establishment of global online communities and the mass sharing of information and content.

While acknowledging the benefits society has derived from the development and expansion of electronic communications, there are clear downsides. In particular, the proliferation of child exploitation material and how the internet has become a source and a contributor to recognised forms of child abuse and mistreatment.

In Western Australia (WA), people who use the Internet (along with other means of electronic communication) to pursue sexual activity with a child is guilty of a crime under section 204B of the Criminal Code.

What is the offence?

Section 204B of the Criminal Code provides that an adult who uses electronic communication with intent to procure a person under the age of 16 years to engage in sexual activity or expose a person under the age of 16 years to indecent matters is guilty of a crime.

The penalty imposed varies with the age of the child in question.

CHILD UNDER 16 YEARS OF AGE

Where the child is under the age of 16, s 204B(2) of the Criminal Code provides that an adult who uses electronic communication:

• to procure the child to engage in sexual activity or expose the child to any indecent matter;
• with the intent to procure the child to engage in sexual activity or expose the child to any indecent matter;
• believes that the child is under 16 years;
• is guilty of a crime and is liable to imprisonment for 5 years.

CHILD UNDER 13 YEARS OF AGE

Where the child is under the age of 13 years, s 204B(3) of the Criminal Code provides that an adult who uses electronic communication:

• to procure the child to engage in sexual activity or expose the child to any indecent matter;
• with the intent to procure the child to engage in sexual activity or expose the child to any indecent matter;
• believes that the child is under 13 years;
• is guilty of a crime and is liable to imprisonment for 10 years.

Importantly, for the purposes of understanding what behaviour this offending includes:

• ‘indecent matter’ includes an indecent film, videotape, audiotape, picture, photograph or printed or written matter;
• ‘electronic communication’ means communication by electronic means, and includes without limitation, an email, the Internet, facsimile, telephone (including mobile telephone), radio and television;
• ‘sexual activity’ means if a person (a) allows a sexual act to be done to the person’s body; or (b) does a sexual act to the person’s own body or the body of another person; or (c) otherwise engages in an act of an indecent nature.

The offence may be committed in or outside of WA. If the offence is committed outside of WA then this would likely fall under the jurisdiction of federal laws.

Is police entrapment a defence? 

It is not a defence that the victim in the matter is a fictitious person represented to the accused as a real person. For example, an undercover police officer presenting as a child online.

Where a person is charged under s204B(2) of the Criminal Code, there is a defence that the accused person believed on reasonable grounds that the victim was or over the age of 16 years.  This does not apply where a person is charged under s204B(3).

Where a person is charged under s204B(3) of the Criminal Code, there is a defence that the accused person believed on reasonable grounds that the victim was of or over the age of 13 years. This would not prevent the accused from being convicted of an offence under s204B(2) of the Criminal Code, which carries a lower maximum penalty.

Importantly, s 204B of the Criminal Code is directed at the exploitation of children. The use of the term ‘adult’ has been presumed to exclude situations where adolescents are exchanging sexually explicit material, also known as ‘sexting’.

What sentence would likely be imposed?

The court has made it clear that sexual offences against a child are serious. Offending of this nature is particularly hard to detect and prosecute.

Accordingly, an immediate term of imprisonment would likely be imposed where a person is convicted under s204B of the Criminal Code and only in rare and exceptional circumstances would a non-custodial penalty be imposed.

Entrapment argument as a mitigating factor

When a person is convicted on the basis that they were entrapped by a police officer posing as a child on the internet, it has been argued that this should be considered a mitigating factor in sentencing.

That is, these circumstances are mitigating because no child was actually involved or harmed in the offending.

The court has rejected this argument on the basis that it is irrelevant whether a child was actually engaged or not. This is for two reasons:

First, the same statutory penalty is applicable whether a person actually procures or intends to procure a child.

Second, both forms of offending are seen as equally reprehensible.

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.