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Criminal Law » Sexual Offences » Procuring a Child under 16 years for Unlawful Sexual Activity

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Procuring a Child under 16 years for Unlawful Sexual Activity

Procuring a child under 16 years for unlawful sexual activity is an offence under section 66EB(2) of the Crimes Act 1900 (NSW). The maximum penalty if the child is under 14 years of age is imprisonment for 15 years. The maximum penalty if the child is between 14 and 16 years of age is imprisonment for 12 years.

This offence may be heard before a magistrate in the Local Court unless either the accused person or the prosecutor elects to have the matter heard in the District Court. If the matter is heard in the Local Court the maximum penalty that the magistrate may impose is imprisonment for 2 years.

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What the prosecution must prove

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

  • A person who was 18 years old or more,
  • Intentionally procures a child under the age of 16,
  • For unlawful sexual activity

What constitutes “unlawful sexual activity”?

Unlawful sexual activity means an act that constitutes a range of offences against the laws of New South Wales relating to grooming children, sexual assault, sexual servitude, child prostitution and child abuse material.

What constitutes “grooming children”?

Grooming children is defined as:

  • engaging in conduct that exposes a child to indecent material or providing a child with an intoxicating substance and
  • with the intention of making it easier to procure the child for unlawful sexual activity.

What is “sexual servitude”?

The Crimes Act defines sexual servitude as the condition of a person who provides sexual; services and who, because of the use of force or threats is not free to cease providing sexual services or is not free to leave the place or area where the person provides sexual services.

What is “child prostitution”?

An act of child prostitution means any sexual service:

  • That is provides by a child for the payment of money or the provision of any other material thing and
  • That can reasonably be considered to be aimed at the sexual arousal or sexual gratification of a person or persons other than the child

It includes (but is not limited to) sexual activity between persons of different sexes or the same sex, comprising sexual intercourse for payment or masturbation committed by one person on another for payment, engaged in by a child.

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.

Defences

The Crimes Act provides that it is a defence if the accused person believed that the other person was not a child.

Will I go to jail?

Procuring a child for unlawful sexual activity is a serious offence. Upon conviction it is likely that the magistrate or judge would impose a full-time custodial sentence.