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CHANGES TO SENTENCING PROCEDURE FOR HISTORICAL CHILD SEXUAL ASSAULT OFFENCES AND NEW LAWS FOR FAILURE TO REPORT

In June this year, Attorney General Mark Speakman introduced the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018. The Bill was assented to on 27 June 2018. The amendments...

Justin Wong

In June this year, Attorney General Mark Speakman introduced the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018. The Bill was assented to on 27 June 2018. The amendments are aimed to strengthen our child sexual abuse laws, in response to the criminal justice recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse.

After Proclamation on Wednesday, certain provisions under these amendments have commenced today. Significantly, this includes the addition of s 25AA of the Crimes (Sentencing Procedure) Act 1999.

Sentenced in Accordance with Current Sentencing Patterns and Practices

Section 25AA provides that an offender must be dealt with by the court in accordance with the sentencing patterns and practices at the time of sentencing in relation to child sexual offences. Previously, the common law principles were followed in New South Wales in this regard, meaning that those charged with historical child sexual offences were sentenced in accordance with the sentencing patterns and practices that were followed at the time the offending took place. For example, if the offending occurred in 1995 but the sentence was taking place in 2018, an offender would be sentenced in accordance with how similar matters were dealt with in 1995, as opposed to how these matters are dealt with by court’s today. The premise behind this amendment is to reflect the changes in societal attitudes in relation to this type of offending. However, it is important to note that although the sentencing approach has changed, the maximum penalty for the offence will remain as it was at the time the offence was committed.

Offence of Failing to Report Child Abuse Offences

Another significant change that has commenced today is the addition of section 316A of the Crimes Act 1900, which makes it an offence to fail to report child abuse offences. This offence carries a maximum penalty of 2 years imprisonment. However, if it can be shown that a person solicits or accepts a benefit in exchange for not reporting a child abuse offence, the maximum penalty increases to 5 years imprisonment.

Similarly, section 43B of the Crimes Act 1900 has been introduced under the new amendments, which aims to prevent child abuse. The section applies to organisations that provide services for children, as well as to “authorised carers”, and covers both physical abuse and sexual abuse. If a person who falls within this category is aware that another adult in the organisation, who works with children, poses a serious risk of physically or sexually abusing a child, and that person has the power within the organisation to reduce or remove that risk, and they fail to do so, they will liable to a maximum penalty of 2 years imprisonment.

“Sexual Touching”

A number of other amendments will be introduced later this year, including Indecent Assault charges being replaced by Sexual Touching (section 61KC of the Crimes Act 1900), as well as the introduction of a defence similar age, whereby a person is not guilty of certain sexual offences if the alleged victim is above the age of 14 years, and the age difference between the accused and the alleged victim is no more than two years (section 80AG of the Crimes Act 1900).

By Zoe Whetham, Senior Associate.