Act of Indecency with child under 16 years whilst being filmed
Committing an act of indecency with a child under 16 years and knowing that the act of indecency is being filmed for the purposes of child abuse material is an offence under section 61O(2A) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 10 years imprisonment.
The charge may be dealt with before a magistrate in the Local Court unless the accused or the prosecutor elects to deal with the matter in the District Court. If the charge is dealt with in the Local Court the maximum penalty that may be imposed is imprisonment for 2 years and/or a fine of $11,000.
WHAT THE PROSECUTION MUST PROVE
To prove an act of indecency with a child under 16 years whilst being filmed, the prosecution must show beyond reasonable doubt that:
- A person committed an act;
- That act was indecent;
- The act was done towards another person;
- The person was under 16 years of age; and
- The act was filmed for the purposes of being able to be observed by any person.
For the offence to be proved it does not require that the accused be in the immediate physical presence of the victim: R v Barrass  NSWCCA 131.
What constitutes an “act of indecency”?
An indecent act is one which right minded persons would consider to be contrary to community standards of decency. The surrounding circumstances of the act may be considered by the court: Eades v Director of Public Prosecutions (NSW)  NSWCA 241.
What constitutes “being filmed”?
The Crimes Act states provides that an act of indecency is being filmed if one or more images (whether still or moving) of the act of indecency are being recorded or transmitted for the purpose of enabling those images to be observed by any person.
What is “child abuse material”?
The Crimes Act defines child abuse material to mean material that depicts, in a way that reasonable persons would regard as being offensive:
- A child as a victim of torture, cruelty or physical abuse
- A child engaged in or apparently engaged in a sexual pose or sexual activity
- A child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity
- The private parts of a child
The matters to be taken into account in deciding whether reasonable persons would regard particular material as being offensive include:
- The standards of morality, decency and propriety generally accepted by reasonable adults
- The literary, artistic or educational merit of the material
- The journalistic merit of the material
- The general character of the material
You may have a defence if:
- You did not commit the act;
- The act was not indecent;
- The act was not done towards another person;
- The act was not filmed.
WILL I GO TO JAIL?
Upon conviction, a person is liable to a penalty of imprisonment. Accordingly, this is a serious offence and upon conviction it is likely that the judge or magistrate would impose a sentence of imprisonment. In an appropriate case a lesser sentence will be considered.
Whether or not you receive a full time jail sentence will depend on the objective seriousness of the offence, whether you pleaded guilty to the offence, whether you have prior convictions, your subjective circumstances such as employment and health and whether remorse has been shown.
For the full range of penalties that can be imposed, see our Sentencing Options page.FREE ENQUIRY NOW