These matters frequently involve complex factual and digital evidence. Allegations may arise from communications through social media, messaging applications, online platforms or other forms of communication, as well as alleged conduct occurring in person.

At Chidiac & Associates, we provide experienced criminal defence representation to clients facing child sexual offence and grooming allegations throughout Sydney and New South Wales. We approach these matters with discretion, thorough preparation and careful analysis of the Prosecution evidence.

Child Sexual Offences in NSW

NSW law contains a number of separate offences concerning sexual conduct involving children and young people.

The applicable offence depends upon factors including:

• the age of the child;
• the nature of the alleged sexual conduct;
• whether sexual intercourse is alleged;
• whether sexual touching or another sexual act is alleged;
• whether circumstances of aggravation are alleged;
• whether the accused was in a position of authority or special care;
• whether the alleged conduct occurred on one or multiple occasions;
• whether grooming or procurement is alleged; and
• whether the alleged conduct involved the production of child abuse material.

The distinction between these offences can be significant because the maximum penalties vary substantially.

Sexual Intercourse with a Child Under 10

Under section 66A of the Crimes Act 1900 (NSW), a person who has sexual intercourse with a child under the age of 10 years commits an offence.

The maximum penalty is:

Life imprisonment

Section 66A provides for a mandatory life sentence to be served for the term of the person's natural life where a person is sentenced to life imprisonment, subject to the court's sentencing powers under the Crimes (Sentencing Procedure) Act 1999 (NSW).

Attempting or Assaulting with Intent to Have Sexual Intercourse with a Child Under 10

Under section 66B, a person commits an offence where they:

• attempt to have sexual intercourse with a child under 10; or
• assault a child under 10 with the intention of having sexual intercourse with the child.

The maximum penalty is:

25 years' imprisonment

Sexual Intercourse with a Child Between 10 and 16

Section 66C of the Crimes Act 1900 (NSW) creates different offences depending upon the child's age.

Child aged 10 to under 14

The maximum penalty is:

16 years' imprisonment

Where the offence is committed in circumstances of aggravation, the maximum penalty increases to:

20 years' imprisonment

Child aged 14 to under 16

The maximum penalty is:

10 years' imprisonment

The legislation therefore makes the child's age a significant factor in determining the applicable offence and maximum penalty.

Assault with Intent to Have Sexual Intercourse with a Child Between 10 and 16

Under section 66D, a person who assaults a child between 10 and 16 with the intention of committing an offence under section 66C is liable to the penalty applicable to the corresponding section 66C offence.

The applicable maximum therefore depends upon the child's age and, where relevant, whether circumstances of aggravation are established.

Sexual Touching of a Child Under 10

Under section 66DA, a person commits an offence where they intentionally:

• sexually touch a child under 10;
• incite the child to sexually touch the accused;
• incite the child to sexually touch another person; or
• incite another person to sexually touch the child.

The maximum penalty is:

16 years' imprisonment

This offence can therefore apply not only to direct sexual touching but also to certain conduct involving the incitement of sexual touching.

Sexual Touching of a Child Between 10 and 16

Under section 66DB, a person commits an offence where they intentionally:

• sexually touch a child aged 10 to under 16;
• incite the child to sexually touch the accused;
• incite the child to sexually touch another person; or
• incite another person to sexually touch the child.

The maximum penalty is:

10 years' imprisonment

Sexual Acts Involving a Child Under 10

Under section 66DC, a person commits an offence where they intentionally engage in specified sexual conduct involving a child under 10.

The offence includes conduct involving:

• carrying out a sexual act with or towards the child;
• carrying out a sexual act in the presence of the child where the child's presence is a source of sexual arousal or gratification;
• inciting the child to carry out a sexual act with or towards the accused;
• inciting the child to carry out a sexual act with or towards another person; or
• inciting another person to carry out a sexual act with or towards the child.

The maximum penalty is:

7 years' imprisonment

Sexual Acts Involving a Child Between 10 and 16

Under section 66DD, a person commits an offence where they intentionally engage in specified sexual conduct involving a child aged 10 to under 16.

The offence includes direct sexual acts, certain sexual acts carried out in the presence of the child, and conduct involving inciting the child or another person to engage in a sexual act.

The maximum penalty is:

2 years' imprisonment

Aggravated Sexual Act Involving a Child Between 10 and 16

Under section 66DE, an aggravated offence is committed where the relevant sexual act involving a child aged 10 to under 16 occurs in circumstances of aggravation.

The maximum penalty is:

5 years' imprisonment

Circumstances of aggravation include circumstances where:

• actual bodily harm is inflicted;
• a threat to inflict actual bodily harm using an offensive weapon or instrument is made;
• the accused is in the company of another person or persons;
• the child is under the authority of the accused;
• the child has a serious physical disability;
• the child has a cognitive impairment;
• the accused takes advantage of the child being under the influence of alcohol or drugs;
• the accused deprives the child of their liberty; or
• the accused breaks and enters a dwelling or other building intending to commit the offence or another serious indictable offence.

Sexual Act for Production of Child Abuse Material

Under section 66DF, a person commits an offence where they intentionally engage in specified sexual conduct involving a child under 16, or incite such conduct, and know that the sexual act is being filmed for the purposes of producing child abuse material.

The maximum penalty is:

10 years' imprisonment

This offence is distinct from the separate offences concerning the possession, production or dissemination of child abuse material.

Persistent Sexual Abuse of a Child

Persistent sexual abuse is one of the most serious child sexual offences under NSW law.

Under section 66EA, an adult who maintains an unlawful sexual relationship with a child commits an offence.

An unlawful sexual relationship is a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child over any period.

The maximum penalty is:

Life imprisonment

Importantly, the Prosecution is not required to prove the particulars of each individual unlawful sexual act in the same way that would be required if each act were separately charged. The jury must instead be satisfied beyond reasonable doubt that an unlawful sexual relationship existed.

Procuring a Child for Unlawful Sexual Activity

Under section 66EB(2), an adult person commits an offence where they intentionally procure a child under 16 for unlawful sexual activity with the adult or another person.

The maximum penalty is:

• 15 years' imprisonment where the child is under 14; or
• 12 years' imprisonment in any other case.

Importantly, the offence does not require the Prosecution to establish that the intended sexual activity actually occurred.

Grooming a Child for Unlawful Sexual Activity

Grooming is separately criminalised under section 66EB(3) of the Crimes Act 1900 (NSW).

An adult person commits an offence where they engage in conduct that:

• exposes a child to indecent material; or
• provides the child with an intoxicating substance or financial or other material benefit,

with the intention of making it easier to procure the child for unlawful sexual activity with the accused or another person.

The maximum penalty is:

• 12 years' imprisonment where the child is under 14; or
• 10 years' imprisonment in any other case.

The legislation defines conduct broadly and can include communication in person, by telephone, over the internet or through other means, as well as providing computer images, videos or publications.

Meeting a Child Following Grooming

Under section 66EB(2A), an adult commits an offence where they:

• intentionally meet, or travel with the intention of meeting, a child whom they have groomed for sexual purposes; and
• do so with the intention of procuring the child for unlawful sexual activity.

The maximum penalty is:

• 15 years' imprisonment where the child is under 14; or
• 12 years' imprisonment in any other case.

The offence can therefore apply even where the intended unlawful sexual activity does not ultimately occur.

Grooming a Person for Sexual Activity with a Child Under Their Authority

Section 66EC deals with a different form of grooming involving a child who is under the authority of another person.

An adult commits an offence where they provide a person other than the child with a financial or other material benefit with the intention of making it easier to procure a child under that person's authority for unlawful sexual activity.

The maximum penalty is:

• 6 years' imprisonment where the child is under 14; or
• 5 years' imprisonment in any other case.

Sexual Offences Involving Young People Under Special Care

NSW law also protects certain young people aged 16 to under 18 where the accused is in a position of special care.

Sexual Intercourse — Section 73

Under section 73, sexual intercourse with a young person under the accused's special care is an offence where the young person is:

• aged 16 to under 17 — maximum 8 years' imprisonment; or
• aged 17 to under 18 — maximum 4 years' imprisonment.

“Special care” can include circumstances involving parents, guardians, authorised carers, certain teachers, school principals and deputy principals, and other persons exercising relevant authority over the young person.

Sexual Touching — Section 73A

Under section 73A, sexual touching involving a young person under the accused's special care carries a maximum penalty of:

• 4 years' imprisonment where the young person is aged 16 to under 17; or
• 2 years' imprisonment where the young person is aged 17 to under 18.

These offences recognise that a person's position of authority or special care can make otherwise lawful sexual conduct criminal.

Incest

Incest is dealt with separately under section 78A of the Crimes Act 1900 (NSW).

A person commits incest where they have sexual intercourse with a close family member who is aged 16 or older.

A close family member includes:

• a parent;
• child;
• sibling, including a half-sibling;
• grandparent; or
• grandchild.

The maximum penalty is:

8 years' imprisonment

Section 78B separately makes attempted incest an offence, carrying a maximum penalty of 2 years' imprisonment.

Consent and Child Sexual Offences

The question of consent must be considered carefully in any child sexual offence matter.

Importantly, section 80AE of the Crimes Act 1900 (NSW) provides that the consent of a child is not a defence to a number of offences, including the offences under sections 66A–66DF, 66EA, 66EB, 66EC, 73 and 73A.

The statutory position concerning consent therefore differs from the law applicable to sexual offences involving adults.

Age and Mistaken Identity Issues

The age of the alleged complainant can be critical to determining the offence and applicable maximum penalty.

Different offences apply depending upon whether the child is:

• under 10;
• aged 10 to under 14;
• aged 14 to under 16;
• aged 16 to under 17; or
• aged 17 to under 18.

Some grooming offences also contain specific provisions concerning a person whom the accused believed to be a child.

Section 66EB provides that a reference to a child can include a person who pretends to be a child where the accused believed that person was a child. The accused's belief concerning age may therefore be relevant in an appropriate case.

Defending Child Sexual Offence and Grooming Charges

Being charged with a child sexual offence does not mean that you are guilty.

The Prosecution bears the burden of proving the elements of the particular offence beyond reasonable doubt.

Depending upon the circumstances, issues that may arise include:

• whether the alleged conduct occurred;
• whether the accused was correctly identified;
• the age of the alleged complainant;
• whether the Prosecution can establish the required intention;
• whether the alleged conduct falls within the statutory definition of a sexual act or sexual touching;
• whether the Prosecution can establish the required circumstances of aggravation;
• whether the accused was in a position of authority or special care;
• whether the Prosecution can establish grooming or procurement;
• whether the alleged communications occurred as claimed;
• whether messages or other digital evidence are authentic and complete;
• whether the accused's words or conduct have been properly interpreted;
• whether the Prosecution evidence is inconsistent or unreliable; and
• whether the Prosecution can establish every element of the offence beyond reasonable doubt.

In grooming matters in particular, the Prosecution must establish the relevant intention required by the particular offence. The mere existence of communication or contact with a child does not necessarily establish the offence charged.

Evidence in Child Sexual Offence Cases

Child sexual offence Prosecutions can involve substantial amounts of evidence.

Depending upon the allegations, the Prosecution may rely upon:

• statements from the complainant;
• statements from other witnesses;
• police interviews;
• CCTV footage;
• mobile phone records;
• text messages;
• social media communications;
• emails;
• photographs;
• video recordings;
• computer records;
• internet and account records;
• location information;
• forensic evidence;
• medical evidence; and
• other documentary or electronic evidence.

In grooming allegations, digital communications can be particularly significant.

The context, timing and sequence of communications may be important, as may the identity of the person who created or sent a particular message or accessed a particular account.

At Chidiac & Associates, we carefully examine the Prosecution evidence and consider whether it is capable of establishing each element of the offence charged.

Child Sexual Offence Investigations

An investigation may commence well before a person is charged.

Police may:

• contact a person for an interview;
• seek access to electronic devices;
• execute a search warrant;
• obtain communications or account information;
• speak with witnesses; or
• obtain forensic or digital evidence.

A person may be investigated for an offence without ultimately being charged.

If you become aware that you are the subject of an investigation involving allegations of child sexual offending or grooming, obtaining legal advice at an early stage is important.

Early legal advice can assist you in understanding the allegations, your legal rights and the potential consequences of participating in an interview.

What Are the Penalties for Child Sexual Offences?

The penalties vary significantly depending upon the offence.

The different maximums apply according to the circumstances specified in each provision, particularly the age of the child.

A maximum penalty is the highest penalty available to the court. It does not mean that every person convicted of the offence will receive the maximum sentence.

The actual sentence depends upon the circumstances of the offending, the applicable sentencing legislation and the individual circumstances of the offender.

How We Can Help

Child sexual offence allegations require careful analysis of the legislation, evidence and circumstances surrounding the alleged conduct.

At Chidiac & Associates, we provide:

• confidential advice about the allegations;
• representation during police investigations;
• advice concerning police interviews;
• advice regarding search warrants and seized devices;
• detailed analysis of Prosecution evidence;
• examination of digital communications and electronic evidence;
• assessment of identification and witness evidence;
• analysis of potential statutory defences;
• representation at court appearances;
• negotiations with prosecutors where appropriate;
• preparation for defended hearings and trials; and
• sentencing advice and representation.

Our approach is built on discretion, thorough preparation, careful legal analysis and strong courtroom advocacy.