Victorian Consolidated Legislation

Crimes Act 1958 - SECT 45

Sexual penetration of child under the age of 16

45. Sexual penetration of child under the age of 16



(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 subsection (1) is liable-

   (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

   (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, to level 4 imprisonment (15
        years maximum); or

   (c)  in any other case, to level 5 imprisonment (10 years maximum).

(3) Subsection (1) does not apply to an act of sexual penetration if-

   (a)  the child is aged between 10 and 16; and

   (b)  the persons taking part in the act are married to each other.

(4) Consent is not a defence to a charge under subsection (1) unless at the
time of the alleged offence the child was aged 10 or older and-

   (a)  the accused satisfies the court on the balance of probabilities that
        he or she believed on reasonable grounds that the child was aged 16 or
        older; or

   (b)  the accused was not more than 2 years older than the child; or

   (c)  the accused satisfies the court on the balance of probabilities that
        he or she believed on reasonable grounds that he or she was married to
        the child.

(4A) If consent is relevant to a charge under subsection (1), the prosecution
bears the burden of proving lack of consent.

(5) A circumstance of aggravation described in subsection (2) is not an
element of an offence against subsection (1) but must be stated in the
presentment.

(6) An accused who takes issue with a circumstance of aggravation described in
subsection (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
circumstances relied upon by the prosecution to support a finding of guilt.



(7) A circumstance of aggravation described in subsection (2)-

   (a)  is to be determined by the jury if the accused pleads not guilty to
        the 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 subsection (1) is
to be taken 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 aggravation described in subsection
        (2); and

   (ii) did not take issue with any acts, facts, matters or circumstances
        relied upon by the prosecution to 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 offence against subsection (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
imprisonment where a circumstance of aggravation described in subsection (2)
is not present.



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