Appendix D: Proposed categorisation of offences under the refined registration scheme

 

Rationale for the three categories

Category 1 offences are:

  • all penetrative offences involving a child complainant (rape, sexual penetration, incest, sexual intercourse with a child outside Australia)
  • persistent sexual abuse of a child (which may or may not involve penetration, but usually does; both state and Commonwealth offences)
  • engaging in sexual activity with a child using a carriage service (which may or may not involve penetration)
  • procuring a child to take part in an act of sexual penetration or indecent act.

Category 2 offences are all of the sexual offences involving a child victim, other than those penetrative offences that fall within Category 1, where the offender is involved in the sexual activity, either in person or via a carriage service.

Category 3 offences are largely sexual offences involving a child victim that do not fall within Categories 1 or 2. Category 3 includes the very serious offences of facilitating sexual offences against children committed by third parties, where the offender is not involved in the sexual activity, either in person or via a carriage service.

State and Commonwealth offences involving production of child pornography and child abuse material are in Category 2, and those involving possession and sharing of child pornography and child abuse material are in Category 3.

Category 1 and 2 offences are treated as equally serious for the purposes of registration. Category 1 offences will result in registration in all but exceptional circumstances, and Category 2 offences attract a strong presumption in favour of registration, unless it would serve no useful protective purpose. Once a registration order has been made in respect of a Category 1 or 2 offence, the same period of registration (five years) applies to each. Greater individual assessment is proposed in respect of Category 3 offences, recognising that despite the seriousness of these offences and the manner in which they may be dealt with in sentencing, the offender may not pose a risk of committing sexual offences against children.

Category 1: Existing registrable offences

Crimes Act 1958 (Vic)

s 38

Rape

s 44

Incest

s 45(1)

Sexual penetration of a child under the age of 16

s 48(1)

Sexual penetration of a child aged 16 or 17 who is under the person’s care, supervision or authority

s 38A

Compelling sexual penetration

s 47A

Persistent sexual abuse of a child under the age of 16

s 58(1)

Person aged 18 years or more procuring a child under the age of 16 to take part in an act of sexual penetration or an indecent act with them or another person

s 58(3)

Person aged 18 years or more procuring a child aged 16 or 17, who is under their care, supervision or authority, to take part in an act of sexual penetration or an indecent act with them or another person

 

Criminal Code Act 1995 (Cth)

s 272.8(1)

Sexual intercourse with a child under the age of 16 outside Australia

s 272.8(2)

Person causing a child to engage in sexual intercourse with a third party outside Australia in their presence

 

Category 1: New registrable offences

Criminal Code Act 1995 (Cth)

s 272.11

Persistent sexual abuse of a child outside Australia

s 474.25A

Using a carriage service for sexual activity1 with a child under the age of 16

s 474.25B

Aggravated offence of using a carriage service for sexual activity with a child under the age of 16, where the offence is aggravated because the child has a mental impairment or is under the care, supervision or authority of the person

 

Category 2: Existing registrable offences

Crimes Act 1958 (Vic)

s 39

Indecent assault

s 40(1)

Assault with intent to rape

s 47(1)

Indecent act with a child under the age of 16

s 49(1)

Indecent act with a child aged 16 or 17 years who is under the person’s care, supervision or authority

s 53

Administration of a drug with the intention of engaging in sexual penetration or an indecent act

s 55

Abduction of a person with the intent of marrying them or taking part in an act of sexual penetration

s 56

Abducting a child under the age of 16 against the will of a person who has lawful charge of the child with the intention that the child should take part in an act of sexual penetration outside marriage

s 68(1)

Production of child pornography

 

Criminal Code Act 1995 (Cth)

s 272.9

Sexual activity (other than sexual intercourse) with a child outside Australia

s 272.14

Procuring a child to engage in sexual activity outside Australia, whether or not with themselves

s 271.4

Trafficking of children into or out of Australia2

s 271.7

Domestic trafficking in children

s 474.26

Using a carriage service to procure a person under 16 years of age with the intention of engaging in a sexual activity

s 474.27

Using a carriage service to groom a person under 16 years of age

s 474.20(1)

Producing child pornography material with the intent to commit an offence under s 474.19

s 474.23(1)

Producing child abuse material with the intent to commit an offence under s 474.22

 

Category 3: Existing registrable offences

Crimes Act 1958 (Vic)

s 49A

Facilitating sexual offences against children

s 54

Owner, occupier or manager of premises inducing or knowingly allowing a child under the age of 17 to enter or remain on the premises for the purpose of taking part in an unlawful act of sexual penetration

s 58(2)

Person aged 18 years or more procuring another person to take part in an act of sexual penetration or an indecent act outside marriage with a child under the age of 16

s 60AC

Aggravated sexual servitude (committed against a person under the age of 18 years)

s 60AE

Aggravated deceptive recruiting for commercial sexual services (committed against a person under the age of 18 years)

s 60B(2)

Loitering near a school, kindergarten or childcare centre without reasonable excuse after having been found guilty of an offence of a sexual nature

s 69

Inviting, procuring, causing or offering a minor to be in any way concerned in the making of child pornography

s 70(1)

Knowingly possessing child pornography

s 70AC

Inviting, procuring, causing or offering a minor to be in any way concerned in a sexual performance involving payment of the minor or any other person

 

Sex Work Act 1994 (Vic)

s 5(1)

Causing or inducing a child to take part in an act of sex work, whether as the sex worker or client

s 6(1)

Receiving payment knowing that it or any part of it has been derived, directly or indirectly, from sexual services provided by a child

s 7(1)

Entering into or offering to enter into an agreement under which a child is to provide sexual services

s 11(1)

Owner, occupier or manager of premises allowing a child to remain on the premises for the purpose of taking part in an act of sex work, whether as the sex worker or client

 

Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic)

s 57A

Knowingly using an online information service to publish or transmit child pornography

 

Criminal Code Act 1995 (Cth)

s 272.18

Benefiting from an offence involving child sex tourism

s 272.19

Encouraging an offence involving child sex tourism

s 270.6

Causing a child to enter or remain in sexual servitude

s 270.81

Aggravated deceptive recruiting for sexual services (committed against a child)

s 474.19(1)

Using a carriage service to access, transmit or solicit child pornography

s 474.20(1)

Possessing, controlling, supplying or obtaining child pornography material with the intent to commit an offence under s 474.19

s 474.22(1)

Using a carriage service to access, transmit or solicit child abuse material

s 474.23(1)

Possessing, controlling, supplying or obtaining child abuse material with the intent to commit an offence under s 474.22

 

Customs Act 1901 (Cth)

s 233BAB

Intentional importation of child pornography or child abuse material

3 The current Sex Offenders Registration Act 2004 (Vic) incorrectly lists s 270.7 as a Class 2 offence—if the offence is committed against a child, it is always aggravated, therefore s 270.8 (aggravated deceptive recruiting) should be listed as the registrable offence.

 

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