If the complainant is aged between 10 and 16 years of age, there is also an “aggravated” version of the offence which carries a higher maximum penalty.
There are three different categories of ‘sexual intercourse with a child’, which are divided by the age of the child. There are also different maximum penalties for each offence.
The three categories and their penalties are:
| Category of Offence | Maximum Term of Imprisonment |
| Child under 10 | Life imprisonment |
| Child between 10 and 14 | 16 years |
| Child between 14 and 16 | 10 years |
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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.
Aggravated offence
An offence is “aggravated” in the following circumstances:
- 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 with 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 deprived 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
The penalties are:
| Category of Offence | Maximum Term of Imprisonment |
| Child between 10 and 14 | 20 years |
| Child between 14 and 16 | 12 years |
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.
A person has a “cognitive impairment” if the person has one of the following conditions:
– An intellectual disability
– A developmental disorder
– A neurological disorder
– Dementia
– A severe mental illness
– A brain injury
– And that results in the person requiring supervision or social habilitation in connection with daily life activities.
It is also an an offence to attempt to have sexual intercourse with a child under the age of 10, or assault a child with the intention of having sexual intercourse.
An attempt to have sexual intercourse or an assault with intent to have sexual intercourse with a child under 10 years is punishable by 25 years imprisonment.
An assault on a child between 10 and 16 years with intent to have sexual intercourse is punishable by the same penalty as if the sexual intercourse had actually occurred.
You may have a defence if you did not have sexual intercourse with the complainant. The consent of the child is not a defence to this charge.
Sexual intercourse with a child is a very serious criminal offence that would almost always result in a full-time custodial sentence. The Crimes (Sentencing Procedure) Act 1999 (NSW) prescribes standard non-parole periods for each of the different sexual offences.