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Criminal Law » Sexual Offences » Aggravated Sexual Intercourse – child under 10 years

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Aggravated Sexual Intercourse – child under 10 years

Aggravated sexual intercourse with a child under 10 years is an offence under section 66A(2) of the Crimes Act 1900 (NSW). The maximum penalty is imprisonment for life. The standard non-parole period is imprisonment for 15 years.

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What the prosecution must prove

To prove this offence, the prosecution must show beyond reasonable doubt that:

  • A person had sexual intercourse, or attempted to have sexual intercourse;
  • With a child under the age of 10 years;
  • The sexual intercourse occurred in circumstances of aggravation.

What is “sexual intercourse”?

Sexual intercourse is defined as the penetration of the genitals of a female or the anus or mouth of any person by the body of another person or an object manipulated by another person. Sexual intercourse also includes cunnilingus.

What are “circumstances of aggravation”?

The Crimes Act defines circumstances of aggravation to mean:

  • The alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby
  • The alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument
  • The alleged offender is in company of another person or persons
  • The alleged victim is under the authority of the alleged offender
  • The alleged victim has a serious physical disability
  • The alleged victim has a cognitive impairment
  • The alleged offender took advantage of the alleged victim being under the influence of alcohol or a drug in order to commit the offence
  • The alleged offender deprives the alleged victim of his or her liberty before or after the commission of the offence
  • The alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence.

What constitutes a “victim under the authority of the accused”?

The Crimes Act provides that a person is “under the authority of another person” if the person is in the care, or under the supervision or authority, of the other person.

What constitutes a “cognitive impairment”?

The Crimes Act provides that a person has a “cognitive impairment” if the person has:

  • An intellectual disability
  • A developmental disorder
  • A neurological disorder
  • Dementia
  • A severe mental illness
  • A brain injury

That results in the person requiring supervision or social habilitation in connection with daily life activities.

Defences

You may have a defence if:

  • You did not have sexual intercourse with the child.

The consent of the child is not a defence to this charge.

Will I go to jail?

Upon conviction a full-time custodial sentence is highly likely. The maximum sentence is imprisonment for 20 years.

In sentencing someone convicted for this offence the judge will consider the objective seriousness of the offence, whether the offender pleaded guilty to the offence, whether the offender has prior convictions, their subjective circumstances, and whether remorse has been shown.