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Sexual Offences) Bill 1998
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
The object of this Bill is to create the following offences:
(a)
persistent sexual abuse of a child (maximum penalty: imprisonment for
25 years).
(b)
loitering by convicted child sexual offenders near premises frequented
by children (maximum penalty: 50 penalty units or imprisonment for
2 years. or both).
The new indictable offence of persistent sexual abuse adopts a
recommendation of the Report of the Paedophile Inquiry of the Wood Police
Royal Commission that a new offence be created in line with
recommendations of the Model Criminal Code Officers Committee of the
Standing Committee of Attorneys-General.
The new summary offence of loitering by convicted child sexual offenders is
similar to a Victorian offence (section 60B of the Crimes Act 1958 of
Victoria).
Clause 2 provides for the commencement of the proposed Act on a day or
days to be appointed by proclamation.
Clause 3 is a formal provision giving effect to the amendments to the
Crimes Act 1900 and the Summary Offences Act 1988 set out in Schedules 1
and 2.
Schedule 1
Amendment of Crimes Act 1900
Schedule 1 [2] inserts in the Crimes Act 1900 a new indictable offence of
persistent sexual abuse of a child. The offence carries a maximum penalty of
25 years penal servitude. A child is defined as a person under the age of 18
years.
A person commits the new offence if the person engages in conduct in
relation to a particular child that constitutes a sexual offence on 3 or more
separate occasions, each occurring on separate days during a particular
period. Sexual offence is defined to include a number of offences under the
Crimes Act 1900. including various offences relating to sexual intercourse
with children. sexual assault. indecent assault, act of indecency with or in the
presence of a child and other offences of a sexual nature. It also includes an
attempt to commit such an offence and similar offences committed outside
New South Wales. The conduct need not be of the same nature, or constitute
the same sexual offence, on each occasion for the offence to be proved.
In proceedings for the new offence. it is not necessary to specify or prove the
dates or exact circumstances of the alleged occasions on which the conduct
constituting the offence occurred. This addresses a decision of the High Court
in S v The Queen (1989) 168 CLR 266, that particularity was required in
trials of sexual assault to the same degree as in trials for other offences. The
new offence provides that. in order for a person to be convicted of the
offence, it is sufficient that the jury is satisfied beyond reasonable doubt that
the evidence establishes at least 3 separate occasions. occurring on separate
days during a particular period. on which the person engaged in conduct
constituting a sexual offence in relation to a particular child of the nature
described in the charge for the offence, and is satisfied about the material
facts of those 3 occasions. It is not necessary for the jury to be satisfied about
the dates or the order of those occasions.
The new offence also makes provision for
verdicts by the jury and
includes provisions aimed at protecting the defendant from double jeopardy.
Explanatory note page 2
As persistent sexual abuse of a child is a new offence, the offence applies
only to conduct occurring after the commencement of the new offence.
Schedule 1
[3] makes it clear that consent of the child is not a defence to a
charge of persistent sexual abuse of a child.
Schedule 1 [1] applies certain procedural provisions in the Crimes Act 1900
applicable to sexual offences to proceedings for the new offence, namely
sections 77A (proceedings in camera if court directs), 405B (warnings to jury
about lack of complaints), 409A (depositions of previous connected
proceedings may be read as evidence in committal proceedings), 409B
(general prohibition on cross-examination of victim's previous sexual
history) and 578A (prohibition on publication identifying victim).
Schedule 2
Amendment of Summary Offences Act 1988
Schedule 2 inserts in the Summary Offences Act 1988 a new summary
offence of loitering. without reasonable excuse, by convicted child sexual
offenders near schools or other premises frequented by children. The offence
carries a maximum penalty of a fine of 50 penalty units (presently $5.500) or
imprisonment for 2 years, or both.
A child sexual offence is defined as:
an offence involving sexual activity or acts of indecency that was
committed in New South Wales against or in respect of a child and that
was punishable by penal servitude or imprisonment for 12 months or
more, or
an offence under sections 91D-91G of the Crimes Act 1900, other than
if committed by a child prostitute, which relates to engaging in or
being involved in child prostitution or pornography. or
an offence under section 578B or 578C (2A) of the Crimes Act 1900.
urhich relates to possession or publication of child pornography. or
an offence of attempting. or of conspiracy or incitement. to commit
any such offence, or
an offence under the law of a place outside New South Wales that
would. if it had been committed in New South Wales. be an offence
referred to in paragraphs (a)-(d).
The provision extends to child sexual offenders who were convicted
the commencement of the new offence.
Explanatory note page 3