Indecent Treatment of Children

Indecent Treatment of Children Under 16


AITKEN WHYTE LAWYERS BRISBANE

CRIMINAL DEFENCE LAWYERS AND SOLICITORS FOR BRISBANE, QUEENSLAND

Indecent Treatment of a Child – Queensland Offence

If you are charged with an offence against a child, it is important to engage experienced lawyers. Aitken Whyte Lawyers Brisbane’s criminal defence lawyers are passionate and experienced advocates. To speak to a lawyer for immediate legal advice, call 07 3229 4459.

What The Law Says

Under Queensland’s Criminal Code Act 1899, any person is guilty of an offence, who:

(a) unlawfully and indecently deals with a child under the age of 16 years; or

(b) unlawfully procures a child under the age of 16 years to commit an indecent act; or

(c) unlawfully permits himself or herself to be indecently dealt with by a child under the age of 16 years; or

(d) wilfully and unlawfully exposes a child under the age of 16 years to an indecent act by the offender or any other person; or

(e) without legitimate reason, wilfully exposes a child under the age of 16 years to any indecent object or any indecent film, videotape, audiotape, picture, photograph or printed or written matter; or

(f) without legitimate reason, takes any indecent photograph or records, by means of any device, any indecent visual image of a child under the age of 16 years;

See Section 20 of the Criminal Code Act 1899 (QLD)
What Actions May Constitute Indecent Treatment?

The term “indecent treatment” is not defined in the legislation. However, generally indecent treatment includes:

  • any sexual act committed between an adult and a child; or
  • any sexual interaction committed between an adult and a child.

This does not, however, extend to sexual acts or interactions that include penetration. In this way, indecent treatment differs from an offence of rape. For example, indecent treatment can include:

  • non-penetrative touching of genitals;
  • exposing an adult’s genitals to a child;
  • coercing a child to expose their genitals; or
  • showing pornographic material to a child.
What The Prosecution Do Not Need to Prove

For an offence of this nature, the prosecution does not need to show that the child did not consent. The law is such that children under 16 are not capable of providing legal consent to sexual activity.

The adult defendant is responsible in situations involving sexual interactions with children. For example, a charge could be made out by a person permitting themselves to be indecently dealt with by a child.

Indecent Treatment Will Be Dealt with On Indictment in The District Court

Indecent treatment of a child is an “indictable offence“. This means it is too serious to be dealt with in the Magistrates Court and will proceed to the District Court.

The process for indictable offences can be involved and depend on:

  • the scope of evidence; and
  • whether the defendant wishes to cross-examine any witness at an early stage.

Before committal, an accused person must make decisions on how their matter progresses. These can have a significant impact on the outcome so it is important to get legal advice to help you decide. While the Court process can be complicated, our Brisbane criminal lawyers will:

  • guide you through each stage; and
  • explain the process in easy-to-understand terms.

We will offer you advice and guidance so that you are well informed to decide on the progression of your case.

Which Court Will Hear the Matter?

A person will first appear before a Magistrates Court. This will generally be in the jurisdiction they were charged. Once the charge is committed, the District Court can hear the matter.

Usually, the matter will be committed to the nearest District Court.

For example, the Brisbane District Court hears matters which were first mentioned in:

The Maroochydore District Court hears matters which commenced in the:

On the Gold Coast, the Southport District Court hears matters from the:

There are also District Court registries at Beenleigh, Ipswich, Rockhampton, Townsville, and Cairns.

Our Brisbane lawyers regularly appear in the District Court. We are familiar with these jurisdictions and the Court process.

In the District Court it is often recommended that your legal defence consists of:

  • an instructing solicitor; and
  • a specialist barrister.

We work closely with many junior and senior criminal barristers. This offers our clients a selection of experienced criminal barristers. We can recommend barristers with whom we have engaged for similar cases to achieve a good result.

Other Offences Against Children

It is possible for there to be overlap in a person’s conduct between:

  • indecent dealings; and
  • other child sex offences.

Police may charge a person with multiple offences for the same act, or with the more serious offence.

For example, a person who makes an indecent recording of a child may be charged with:

They might also be charged with possessing child exploitation material.

If the person were to share the material, they may then be charged with distributing CEM. If the sharing done was via text or email, they may be charged with a Commonwealth offence. This is as it is an offence under the Criminal Code Act 1995 (Cth) to use a carriage service for child abuse material.

Indecent treatment can also be made out by a person:

  • procuring a child to commit an indecent act; or
  • encouraging a child to commit an indecent act.

Depending on how contact was made, this could also amount to a Commonwealth offence. Under the Commonwealth Criminal Code, it is an offence to use a carriage service to groom a person under 16.

While police may charge a person with more than one offence, there is a legal argument against this. This is that a person cannot be convicted of more than one offence for the same act. In this case, your lawyer may be able to negotiate with the prosecution for the dismissal of a charge. Our lawyers generally have success negotiating on these grounds. If negotiation does not result in an outcome in your favour, you may wish to proceed to trial.

Penalty

Maximum Penalty

The maximum penalty for indecent treatment of a child between 12 and 16 is 14 years imprisonment.

Where the offence includes certain aggravating features, the maximum penalty increases. Circumstances that can increase the maximum penalty are as follows:

Aggravating FeaturesMaximum Penalty
If the child is under 1220 years imprisonment
If the child is a lineal descendant of the offender, or if the offender is the guardian or carer of the child (incest)20 years imprisonment
If the child has an impairment of the mind20 years imprisonment
Maximum Penalty for Indecent Treatment
Penalties For Child Sex Offences

Point 4 of the Sentencing Guidelines in the Penalties and Sentences Act 1992 reads:

in sentencing an offender for any offence of a sexual nature committed in relation to a child under 16 years… the offender must serve an actual term of imprisonment, unless there are exceptional circumstances.” (our emphasis)

See Section 9 of the Penalties and Sentences Act 1992

What constitutes exceptional circumstances will vary from case to case. The decision about whether exceptional circumstances exist is up to the sentencing Judge. Exceptional circumstances could be:

  • the age of the offender relative to the child;
  • any physical or mental illness of the offender;
  • the nature of the contact; and
  • rehabilitation undertaken.
What To Expect

A maximum penalty is the highest penalty the Court can give an offender convicted of an offence.

The actual penalty that an offender would receive for this offence will vary from case to case. The sentence handed down by the Court will depend on several factors, including:

  1. The affect of the offence on the child;
  2. The age of the child;
  3. The nature of the offence, including any physical harm to the child;
  4. The need to protect the child, and other children, from the risk of further offending;
  5. Any relationship between the offender and the child. They will consider if the child was under the care, supervision, or authority of the defendant;
  6. The need to deter similar behaviour by other offenders to protect children;
  7. The offender’s prospects of rehabilitation;
  8. The availability of any medical or psychiatric treatment. The purpose of treatment would be to cause the offender to behave in an acceptable way to the community;
  9. The offender’s antecedents, age, and character;
  10. Any remorse or lack of remorse;
  11. Any medical, psychiatric, prison or other report relating to the offender; and
  12. Anything else that is relevant about the safety of children.

Sentencing statistics show the majority of those convicted receive a period of imprisonment. As such, it is usual for a person convicted of this offence to spend time in custody.

Due to the serious penalties associated with this offence, it is important to:

  • undertake proper preparation; and
  • present any mitigating circumstances to the Court.

Certain steps in the presentation of your matter can go a long way in mitigating the penalty. For example:

  • obtaining a pre-sentence report;
  • seeking out treatment and obtaining evidence of your progress; and
  • speaking to the Court about your character beyond the offending.

Our lawyers have significant experience as advocates for those charged with these offences. We will assist you will all necessary preparation in the lead up to your Court date. When you engage a lawyer, your legal representative will speak to the Court on your behalf. You can then be sure all information in your favour is presented to the Court.

In some circumstances, you may receive a penalty that does not require you to spend actual time in prison. These penalties can include:

  • wholly suspended imprisonment;
  • probation;
  • an intensive correction order (ICO); or
  • a recognisance order.
Becoming A Reportable Offender

The Child Protection Offender Register records any person convicted of indecent treatment. The scheme imposes requirements aimed at protecting children in the community. A reportable offender must keep the police informed about their details. In some circumstances, they must also report any contact with children. This requirement generally lasts for a period after sentence or release from custody.

It is a criminal offence to breach any of the requirements imposed on you as a reportable offender. If you are convicted of a relevant offence, our lawyers will ensure you:

  • are aware of your obligations; and
  • understand what these mean for you in a practical sense.

We can represent you if you are charged with breaching your reporting obligations.

Possible Defences to A Charge of Indecent Treatment of a Child

There are some defences available to a charge of indecent treatment of a child. These include, but are not limited to, the following defences:

  1. The alleged offence did not occur;
  2. The act was not “indecent”;
  3. Defence of accident. That is that any contact was accidental; or
  4. Mistake of fact regarding age. That is, the defendant believed on reasonable grounds that the child was of or about 16 years old.

If the police have charged you with indecent treatment of a child, please call us to discuss your matter. Our criminal lawyers will consider whether any of these defences may apply to you.

Focused on Results

It is essential you have experienced solicitors when dealing with:

  • offences of a sexual nature; or
  • offences involving persons under 16 years.

Contact us if the police charge you with indecent treatment of a child. Our criminal defence lawyers will make sure your rights are protected.

Aitken Whyte Lawyers Brisbane are focused on results. Our solicitors can assist you with all criminal matters. Call us on 07 3229 4459 today to discuss your needs.

Office Location and Contact Details

Brisbane

Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000

Ph: 07 3229 4459
Fax: +617 3211 9311
E: enquiries@awbrisbanelawyers.com.au