Under-16 Offence Defence

What Is Indecent Treatment of a Child Under 16?

Indecent treatment of a child under 16 is a serious criminal offence under Queensland law. It covers a wide range of acts considered indecent, involving a person under the age of 16. This can include physical contact, exposing a child to sexual acts, or involving them in any behaviour of a sexual nature. The law is designed to protect young people, and the penalties reflect the gravity of the offence.

Common scenarios leading to these charges include:

• Allegations of inappropriate touching

• Exposing a child to sexual material or acts

• Encouraging or involving a child in sexual behaviour

• Using technology to communicate indecently with a child

These situations can arise from misunderstandings, false accusations, or complicated family and social circumstances. The law takes a strict approach, and even being accused can have a profound impact on your life, reputation, and relationships.

Penalties for Indecent Treatment of a Child Under 16

Convictions for indecent treatment of a child under 16 in Queensland can lead to significant legal penalties. The severity depends on the age of the child, the relationship to the offender, and any aggravating factors. The starting point for offending of a sexual nature is that a term of actual imprisonment should form part of the penalty imposed, unless “exceptional circumstances“ apply. The maximum penalties are –

• If the child is aged 12 years or older, the maximum penalty is 14 years imprisonment.
• If the child is under 12 years, the maximum penalty is.
• If the child is the offender’s lineal descendant (to the offender’s knowledge), or the offender is the guardian, or has care of the child, the maximum penalty is 20 years imprisonment.
• If the child is a person with an impairment of the mind (to the offender’s knowledge), the maximum penalty is 20 years imprisonment.

Recent Changes - Exceptional Circumstances

As of September 2020, the Penalties and Sentences Act 1992 changed to require offenders to serve actual prison time unless “exceptional circumstances” exist. This is a significant departure from previous sentencing practices.

‘Exceptional circumstances’ is not explicitly defined in the legislation. In deciding whether exceptional circumstances exist, the sentencing court can have regard to a number of factors, including –

• The actual or perceived age of the child involved
• The type of offence committed and the nature of the material
• The defendant’s actions and behavior concerning the exploitative material
• Any existing relationship between the defendant and the child
• The necessity of deterring similar conduct
• The defendant’s likelihood of rehabilitation, including any medical or psychiatric treatment
• The defendant’s background, age, and character
• Any demonstration of remorse or lack thereof by the defendant
• Any relevant medical, psychiatric, correctional, or other reports regarding the defendant

Even if none of the individual factors listed above are deemed exceptional on their own, their combined effect may be considered exceptional. If the sentencing court determines that exceptional circumstances exist, a sentence of actual imprisonment is no longer mandatory

Elements That Must Be Proven

To secure a conviction, the prosecution must prove several elements beyond reasonable doubt:

1. Dealing with the Complainant

The accused must have “dealt with” the complainant. This includes any form of interaction, not limited to physical contact.

Consent from the complainant is not a defence.

It must be proven that the accused was the person who dealt with the complainant.

2. Indecency of the Dealing

The act must be considered “indecent” according to community standards.

Factors considered include the nature of the act, the relationship between the parties, their ages, and whether the act had a sexual connotation.

3. Unlawfulness of the Act

The act must not be authorised, justified, or excused by law.

Consent is not a valid defence in these cases.

4. Age of the Complainant

The prosecution must prove the complainant was under the relevant age threshold (either under 16, under 12, or as otherwise specified).

5. Aggravating Circumstances

Depending on the charge, the prosecution may need to prove:

The accused was the child’s guardian or had the child in their care

The child was the accused’s lineal descendant

The child had an impairment of the mind, if relevant

Penalties for Indecent Treatment of a Child Under 16

Convictions for indecent treatment of a child under 16 in Queensland can lead to significant legal penalties. The severity depends on the age of the child, the relationship to the offender, and any aggravating factors. The starting point for offending of a sexual nature is that a term of actual imprisonment should form part of the penalty imposed, unless “exceptional circumstances“ apply. The maximum penalties are –

• If the child is aged 12 years or older, the maximum penalty is 14 years imprisonment.
• If the child is under 12 years, the maximum penalty is.
• If the child is the offender’s lineal descendant (to the offender’s knowledge), or the offender is the guardian, or has care of the child, the maximum penalty is 20 years imprisonment.
• If the child is a person with an impairment of the mind (to the offender’s knowledge), the maximum penalty is 20 years imprisonment.

Recent Changes - Exceptional Circumstances

As of September 2020, the Penalties and Sentences Act 1992 changed to require offenders to serve actual prison time unless “exceptional circumstances” exist. This is a significant departure from previous sentencing practices.

‘Exceptional circumstances’ is not explicitly defined in the legislation. In deciding whether exceptional circumstances exist, the sentencing court can have regard to a number of factors, including –

• The actual or perceived age of the child involved
• The type of offence committed and the nature of the material
• The defendant’s actions and behavior concerning the exploitative material
• Any existing relationship between the defendant and the child
• The necessity of deterring similar conduct
• The defendant’s likelihood of rehabilitation, including any medical or psychiatric treatment
• The defendant’s background, age, and character
• Any demonstration of remorse or lack thereof by the defendant
• Any relevant medical, psychiatric, correctional, or other reports regarding the defendant

Even if none of the individual factors listed above are deemed exceptional on their own, their combined effect may be considered exceptional. If the sentencing court determines that exceptional circumstances exist, a sentence of actual imprisonment is no longer mandatory