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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Crimes (Amendment) Act 2000
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purpose 1
2. Commencement 2
3. Principal Act 2
4. Extended definition of rape 2
5. New section 45 substituted 3
45. Sexual penetration of child under the age of 16 3
6. Possession of child pornography 6
7. Amendments to Principal Act consequential on section 5 6
8. New section 593 inserted 7
593. Transitional provisions--Crimes (Amendment)
Act 2000 7
9. Consequential amendments to Education Act 1958 9
10. Consequential amendments to Sentencing Act 1991 10
ENDNOTES 12
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PARLIAMENT OF VICTORIA
Initiated in Assembly 4 October 2000
A BILL
to amend the Crimes Act 1958, to make consequential amendments to
the Education Act 1958 and the Sentencing Act 1991 and for other
purposes.
Crimes (Amendment) Act 2000
The Parliament of Victoria enacts as follows:
1. Purpose
The purpose of this Act is to amend the Crimes
Act 1958 so as to--
(a) extend the definition of "rape" to include
5 situations where a male is coerced into
sexually penetrating, or continuing to
sexually penetrate, another person;
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Crimes (Amendment) Act 2000
s. 2
Act No.
(b) create a single new offence dealing with the
sexual penetration of children under the age
of 16;
(c) increase the penalty for possession of child
5 pornography.
2. Commencement
This Act comes into operation on the day after the
day on which it receives the Royal Assent.
See:
3. Principal Act Act No.
6231
10 In this Act, the Crimes Act 1958 is called the Reprint No. 15
Principal Act. as at
1 September
1999 and
amending
Act No.
26/1999.
LawToday:
www.dms.
dpc.vic.
15 gov.au
4. Extended definition of rape
In section 38 of the Principal Act, after sub-
section (2) insert--
"(3) A person (the offender) also commits rape if
20 he or she compels a male person--
(a) to sexually penetrate the offender or
another person with his penis,
irrespective of whether the person
being sexually penetrated consents to
25 the act; or
(b) who has sexually penetrated the
offender or another person with his
penis, not to withdraw his penis from
the offender or that other person,
30 irrespective of whether the person who
has been sexually penetrated consents
to the act.
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Crimes (Amendment) Act 2000
s. 5
Act No.
(4) For the purposes of sub-section (3), a person
compels a male person (the victim) to
engage in a sexual act if the person compels
the victim (by force or otherwise) to engage
5 in that act--
(a) without the victim's consent; and
(b) while being aware that the victim is not
consenting or might not be
consenting.".
10 5. New section 45 substituted
For sections 45 and 46 of the Principal Act
substitute--
"45. Sexual penetration of child under the age
of 16
15 (1) A person who takes part in an act of sexual
penetration with a child under the age of 16
is guilty of an indictable offence.
(2) A person who is guilty of an offence against
sub-section (1) is liable--
20 (a) if the court is satisfied beyond
reasonable doubt that the child was, at
the time of the offence, under the age of
10, to level 2 imprisonment (25 years
maximum); or
25 (b) if the court is satisfied beyond
reasonable doubt that the child was, at
the time of the offence, aged between
10 and 16 and under the care,
supervision or authority of the accused,
30 to level 4 imprisonment (15 years
maximum); or
(c) in any other case, to level 5
imprisonment (10 years maximum).
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Crimes (Amendment) Act 2000
s. 5
Act No.
(3) Sub-section (1) does not apply to an act of
sexual penetration if--
(a) the child is aged between 10 and 16;
and
5 (b) the persons taking part in the act are
married to each other.
(4) Consent is not a defence to a charge under
sub-section (1) unless at the time of the
alleged offence the child was aged 10 or
10 older and--
(a) the accused believed on reasonable
grounds that the child was aged 16 or
older; or
(b) the accused was not more than 2 years
15 older than the child; or
(c) the accused believed on reasonable
grounds that he or she was married to
the child.
(5) A circumstance of aggravation described in
20 sub-section (2) is not an element of an
offence against sub-section (1) but must be
stated in the presentment.
(6) An accused who takes issue with a
circumstance of aggravation described in
25 sub-section (2) and who wishes to have the
matter determined on the trial may do so by
pleading not guilty to the offence with which
he or she is charged even if he or she does
not take issue with any acts, facts, matters or
30 circumstances relied upon by the prosecution
to support a finding of guilt.
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Crimes (Amendment) Act 2000
s. 5
Act No.
(7) A circumstance of aggravation described in
sub-section (2)--
(a) is to be determined by the jury if the
accused pleads not guilty to the
5 offence; and
(b) is to be determined by the trial judge if
the accused pleads guilty to the offence.
(8) An offender who pleads not guilty to an
offence against sub-section (1) is to be taken
10 to have pleaded guilty to the offence for the
purposes of section 5(2)(e) of the
Sentencing Act 1991 if--
(a) he or she--
(i) took issue with a circumstance of
15 aggravation described in sub-
section (2); and
(ii) did not take issue with any acts,
facts, matters or circumstances
relied upon by the prosecution to
20 support a finding of guilt; and
(b) the circumstance of aggravation is not
proved.
(9) For the avoidance of doubt it is declared that
it is the intention of the Parliament that an
25 offence against sub-section (1) is not an
offence to which section 53(1) of the
Magistrates' Court Act 1989 applies
(indictable offences triable summarily) even
though the offence is punishable by level 5
30 imprisonment where a circumstance of
aggravation described in sub-section (2) is
not present.".
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Crimes (Amendment) Act 2000
s. 6
Act No.
6. Possession of child pornography
In section 70 of the Principal Act, for sub-section
(1) substitute--
"(1) A person who knowingly possesses child
5 pornography is guilty of an indictable
offence.
Penalty: Level 6 imprisonment (5 years
maximum).".
7. Amendments to Principal Act consequential on
10 section 5
(1) In section 60B(1)(a) of the Principal Act, omit
"46,".
(2) In section 60B(1)(b) of the Principal Act, after
"clause" insert "7A, 7B,".
15 (3) In section 359A(1)(a) of the Principal Act, omit
"46,".
(4) In section 425(1)(c) of the Principal Act, for "10"
substitute "16".
(5) In section 425(1) of the Principal Act,
20 paragraph (d) is repealed.
(6) In section 425(3) of the Principal Act, for ", 45(1)
or 46(1)" substitute "or 45(1)".
(7) In clause 7(e) of Schedule 8 to the Principal Act,
for "10" substitute "16".
25 (8) Clause 7(f) of Schedule 8 to the Principal Act is
repealed.
(9) In Schedule 8 to the Principal Act, after clause 7
insert--
"7A. An offence against section 45(1) (sexual penetration
30 of child under the age of 10) (as amended) of the
Crimes Act 1958 inserted in the Crimes Act 1958 on
5 August 1991 by section 3 of the Crimes (Sexual
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Crimes (Amendment) Act 2000
s. 8
Act No.
Offences) Act 1991 and repealed by section 5 of the
Crimes (Amendment) Act 2000.
7B. An offence against section 46(1) (sexual penetration
of child aged between 10 and 16) (as amended) of the
5 Crimes Act 1958 inserted in the Crimes Act 1958 on
5 August 1991 by section 3 of the Crimes (Sexual
Offences) Act 1991 and repealed by section 5 of the
Crimes (Amendment) Act 2000.".
8. New section 593 inserted
10 After section 592 of the Principal Act insert--
'593. Transitional provisions--Crimes
(Amendment) Act 2000
(1) In this section "commencement day"
means the day on which the Crimes
15 (Amendment) Act 2000 comes into
operation.
(2) The amendment of section 38 of this Act
made by section 4 of the Crimes
(Amendment) Act 2000 applies only to
20 offences alleged to have been committed
after the commencement day.
(3) The amendment of section 70 of this Act
made by section 6 of the Crimes
(Amendment) Act 2000 applies only to
25 offences alleged to have been committed
after the commencement day.
(4) For the purposes of sub-sections (2) and (3),
if an offence is alleged to have been
committed between two dates, one before
30 and one on or after the commencement day,
the offence is alleged to have been
committed before the commencement day.
(5) From any time on or after the
commencement day a charge or presentment
35 may be filed against a person for an offence
against section 45 of this Act, as substituted
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Crimes (Amendment) Act 2000
s. 8
Act No.
by section 5 of the Crimes (Amendment)
Act 2000, irrespective of whether the
offence is alleged to have been committed
before, on or after the commencement day
5 provided it is not alleged to have been
committed before 5 August 1991.
(6) For the purposes of sub-section (5), if an
offence is alleged to have been committed
between two dates, one before and one on or
10 after 5 August 1991, the offence is alleged to
have been committed before 5 August 1991.
(7) Section 359A(1) of this Act, as in force
before the commencement day, continues to
apply to an alleged offence against section
15 45 or 46 (as in force before the
commencement day) or an attempt to
commit any such offence or an assault with
intent to commit any such offence for which
a person is directed to be tried, or with which
20 a person is charged on indictment or
presentment, before the commencement day.
(8) The amendments of section 425(1) of this
Act made by section 7 of the Crimes
(Amendment) Act 2000 apply to any trial
25 that commences on or after the
commencement day and an accused may be
found guilty in such a trial of an offence
against section 45 of this Act, as substituted
by section 5 of the Crimes (Amendment)
30 Act 2000, irrespective of whether the
conduct constituting the offence is alleged to
have occurred before, on or after the
commencement day provided it is not
alleged to have occurred before 5 August
35 1991.
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Crimes (Amendment) Act 2000
s. 9
Act No.
(9) For the purposes of sub-section (8)--
(a) a trial commences on arraignment of
the accused in accordance with
Subdivision (12) of Division 1 of Part
5 III of this Act; and
(b) if conduct constituting an offence is
alleged to have occurred between two
dates, one before and one on or after
5 August 1991, the conduct is alleged
10 to have occurred before 5 August 1991.
(10) Section 425(3) of this Act, as in force before
the commencement day, continues to apply
to any trial of an offence against section
45(1) or 46(1) (as in force before the
15 commencement day) that occurs on or after
the commencement day, irrespective of
whether that trial commenced before, on or
after the commencement day.'.
9. Consequential amendments to Education Act 1958
See:
20 In section 35(2) of the Education Act 1958--
Act No.
6240
(a) in paragraph (a), omit "46,";
Reprint No. 8
as at
(b) after paragraph (a) insert--
24 February
2000 and
"(ab) an offence against section 45(1) (sexual
amending
Act No. penetration of child under the age of
8/2000.
25 10) (as amended) of the Crimes Act
LawToday:
www.dms. 1958 inserted in the Crimes Act 1958
dpc.vic.
on 5 August 1991 by section 3 of the
gov.au
Crimes (Sexual Offences) Act 1991
and repealed by section 5 of the
30 Crimes (Amendment) Act 2000; or
(ac) an offence against section 46(1) (sexual
penetration of child aged between 10
and 16) (as amended) of the Crimes
9
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Crimes (Amendment) Act 2000
s. 10
Act No.
Act 1958 inserted in the Crimes Act
1958 on 5 August 1991 by section 3 of
the Crimes (Sexual Offences) Act
1991 and repealed by section 5 of the
5 Crimes (Amendment) Act 2000; or";
(c) in paragraph (c), after "(a)" insert ", (ab),
(ac)";
(d) in paragraph (d), after "(a)," insert "(ab),
(ac),".
10 10. Consequential amendments to Sentencing Act 1991
See:
(1) In the definition of "serious offence" in section Act No.
3(1) of the Sentencing Act 1991-- 49/1991
Reprint No. 5
(a) in paragraph (c)-- as at
1 January
(i) in sub-paragraph (vi), for "10" 2000 and
amending
15 substitute "16"; Act Nos
1/2000,
(ii) sub-paragraph (vii) is repealed; 41/2000 and
54/2000.
(b) after paragraph (c) insert-- LawToday:
www.dms.
"(ca) an offence against section 45(1) (sexual dpc.vic.
gov.au
penetration of child under the age of
20 10) (as amended) of the Crimes Act
1958 inserted in the Crimes Act 1958
on 5 August 1991 by section 3 of the
Crimes (Sexual Offences) Act 1991
and repealed by section 5 of the
25 Crimes (Amendment) Act 2000; or
(cb) an offence against section 46(1) (sexual
penetration of child aged between 10
and 16) (as amended) of the Crimes
Act 1958 inserted in the Crimes Act
30 1958 on 5 August 1991 by section 3 of
the Crimes (Sexual Offences) Act
1991 and repealed by section 5 of the
Crimes (Amendment) Act 2000; or".
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Crimes (Amendment) Act 2000
s. 10
Act No.
(2) In clause 1 of Schedule 1 to the Sentencing Act
1991--
(a) in paragraph (a)--
(i) in sub-paragraph (v), for "10"
5 substitute "16";
(ii) sub-paragraph (vi) is repealed;
(b) after paragraph (a) insert--
"(ab) an offence against section 45(1) (sexual
penetration of child under the age of 10) (as
10 amended) of the Crimes Act 1958 inserted in
the Crimes Act 1958 on 5 August 1991 by
section 3 of the Crimes (Sexual Offences) Act
1991 and repealed by section 5 of the Crimes
(Amendment) Act 2000;
15 (ac) an offence against section 46(1) (sexual
penetration of child aged between 10 and 16)
(as amended) of the Crimes Act 1958 inserted
in the Crimes Act 1958 on 5 August 1991 by
section 3 of the Crimes (Sexual Offences) Act
20 1991 and repealed by section 5 of the Crimes
(Amendment) Act 2000;".
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Crimes (Amendment) Act 2000
Endnotes
Act No.
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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