2003
2003
2003-11-27
act
government
publicspecial
act.reprint
allinforce
2003-05-07
1
2003-11-27
act-2003-082
none
act-2003-009
3fa0ac8c-bded-419a-96b4-29e3a54dbbfd
c2a7ed0b-5811-41eb-9b3c-e2335155c1a1
Note—
The Act was repealed by the Statute Law (Miscellaneous Provisions) Act (No 2)
2003 No 82, Sch 3 with effect from
27.11.2003.
An Act to amend the Crimes
Act 1900 to provide for the equal treatment of sexual
offences against males and females and to increase the penalties for sexual
offences against children; and for other purposes.
1Name of
Act
This Act is the Crimes Amendment
(Sexual Offences) Act 2003.
2Commencement
This Act commences on a day to be appointed by
proclamation.
3Amendment of Crimes Act 1900 No
40
The Crimes Act
1900 is amended as set out in Schedule
1.
4Amendment of other
Acts
The Acts specified in Schedule 2 are amended as
set out in that Schedule.
Schedule 1Amendment of Crimes Act 1900
(Section 3)
[1]Section 61H Definition of
“sexual intercourse” and other terms
Omit “sections 61H–66F” from
section 61H (1) and (2) wherever occurring.
Insert instead “this
Division”.
[2]Section 61Q Alternative
verdicts
Omit “66C (1) or 66C (2)” from
section 61Q (2).
Insert instead “66C (3) or 66C
(4)”.
[3]Section 61Q
(3)
Omit “, 66C (1) or 66C (2)”. Insert
instead “or 66C”.
[4]Section 61R
Consent
Insert “(or any other mistaken belief about
the nature of the act induced by fraudulent means)” after
“purposes” in section 61R (2) (a1).
[5]Section 62 Carnal
knowledge—proof
Omit the section.
[6]Section 63 Common law offences
of rape and attempted rape abolished
Insert at the end of the section:
(2)
Parts 1 and 19 of the Eleventh Schedule make
provision with respect to rape and other former sexual
offences.
[7]Sections 64, 69, 70, 78E and
78T
Omit the sections and insert them, as clauses
numbered 51, 52, 53, 54 and 55, after clause 50 in Part 19 of the Eleventh
Schedule (as inserted by this Act).
[8]Section 66 Procuring etc
carnal knowledge by fraud
Omit the section.
[9]Section
66C
Omit the section. Insert instead:
66CSexual intercourse—child
between 10 and 16
(1)Child between 10 and
14
Any person who has sexual intercourse with
another person who is of or above the age of 10 years and under the age of 14
years is liable to imprisonment for 16 years.
(2)Child between 10 and
14—aggravated offence
Any person who has sexual intercourse with
another person who is of or above the age of 10 years and under the age of 14
years in circumstances of aggravation is liable to imprisonment for 20
years.
(3)Child between 14 and
16
Any person who has sexual intercourse with
another person who is of or above the age of 14 years and under the age of 16
years is liable to imprisonment for 10 years.
(4)Child between 14 and
16—aggravated offence
Any person who has sexual intercourse with
another person who is of or above the age of 14 years and under the age of 16
years in circumstances of aggravation is liable to imprisonment for 12
years.
(5)
In this section, circumstances of aggravation means
circumstances in which:
(a)
at the time of, or immediately before or after,
the commission of the offence, the alleged offender maliciously inflicts
actual bodily harm on the alleged victim or any other person who is present or
nearby, or
(b)
at the time of, or immediately before or after,
the commission of the offence, the alleged offender threatens to inflict
actual bodily harm on the alleged victim or any other person who is present or
nearby by means of an offensive weapon or instrument, or
(c)
the alleged offender is in the company of another
person or persons, or
(d)
the alleged victim is (whether generally or at
the time of the commission of the offence) under the authority of the alleged
offender, or
(e)
the alleged victim has a serious physical
disability, or
(f)
the alleged victim has a serious intellectual
disability, or
(g)
the alleged offender took advantage of the
alleged victim being under the influence of alcohol or a drug in order to
commit the offence.
[10]Section 66E Alternative
verdicts
Omit “16 years” from section 66E (1)
(a). Insert instead “14 years”.
[11]Section 66E (1A) and
(1B)
Insert after section 66E (1):
(1A)
Where on the trial of a person for an offence
under section 66C (2) or 66C (4) the jury is not satisfied that the accused is
guilty of the offence charged, but is satisfied on the evidence that the
accused is guilty of an offence under section 66C (1) or 66C (3), it may find
the accused not guilty of the offence charged but guilty of the latter
offence, and the accused is liable to punishment
accordingly.
(1B)
Where on the trial of a person for an offence
under section 66C (1) or 66C (2) the jury is not satisfied that the accused is
guilty of the offence charged, but is satisfied on the evidence that the
accused is guilty of an offence under section 66C (3) or 66C (4), it may find
the accused not guilty of the offence charged but guilty of the latter
offence, and the accused is liable to punishment
accordingly.
[12]Section
73
Omit sections 73–75. Insert instead:
73Sexual intercourse with child
between 16 and 18 under special care
(1)
Any person who has sexual intercourse with
another person who:
(a)
is under his or her special care,
and
(b)
is of or above the age of 16 years and under the
age of 17 years,
is liable to imprisonment for 8
years.
(2)
Any person who has sexual intercourse with
another person who:
(a)
is under his or her special care,
and
(b)
is of or above the age of 17 years and under the
age of 18 years,
is liable to imprisonment for 4
years.
(3)
For the purposes of this section, a person
(the
victim) is under the special care of another person
(the
offender) if, and only if:
(a)
the offender is the step-parent, guardian or
foster parent of the victim, or
(b)
the offender is a school teacher and the victim
is a pupil of the offender, or
(c)
the offender has an established personal
relationship with the victim in connection with the provision of religious,
sporting, musical or other instruction to the victim, or
(d)
the offender is a custodial officer of an
institution of which the victim is an inmate, or
(e)
the offender is a health professional and the
victim is a patient of the health professional.
(4)
Any person who attempts to commit an offence
under subsection (1) or (2) is liable to the penalty provided for the
commission of the offence.
(5)
A person does not commit an offence under this
section if the person and the other person to whom the charge relates were, at
the time the offence is alleged to have been committed, married to each
other.
[13]Section 77 Consent no defence
in certain cases
Omit “Except as provided by subsection (2),
the” from section 77 (1).
Insert instead
“The”.
[14]Section 77
(2)
Omit the subsection.
[15]Section
78A
Omit the section. Insert instead:
78AIncest
(1)
Any person who has sexual intercourse with a
close family member who is of or above the age of 16 years is liable to
imprisonment for 8 years.
(2)
For the purposes of this section, a close
family member is a parent, son, daughter, sibling (including
a half-brother or half-sister), grandparent or grandchild, being such a family
member from birth.
[16]Section 78B Incest
attempts
Omit “Whosoever, being a male, attempts to
commit any offence under section 78A, shall be”.
Insert instead “Any person who attempts to
commit an offence under section 78A is”.
[17]Section 78D Removal from
guardianship etc
Omit the section.
[18]Sections 78G, 78J, 78K, 78L,
78N, 78O, 78P, 78Q and 78R
Omit the sections.
[19]Section
80AA
Insert after section 80A:
80AAReferral to child protection
agency
On conviction of a person for an offence under
this Division, the court may refer the matter to an appropriate child
protection agency if the person against whom or with whom the offence was
committed is under the authority of the offender.
[20]Section 91D Promoting or
engaging in acts of child prostitution
Omit section 91D (2).
[21]Section 91D
(3)
Omit “, except as provided by subsection
(2)”.
[22]Eleventh Schedule Savings and
transitional provisions
Insert after Part 18:
Part 19Crimes
Amendment (Sexual Offences) Act 2003
49Defence under section 77
(2)
Section 77 (2), as in force before its repeal by
the Crimes Amendment (Sexual Offences) Act
2003, continues to apply to offences committed before its
repeal.
50Defence under section 91D
(2)
Section 91D (2), as in force before its repeal by
the Crimes Amendment (Sexual Offences) Act
2003, continues to apply to offences committed before its
repeal.
Schedule 2Amendment of other
Acts
(Section 4)
2.1Criminal Procedure Act 1986 No
209
[1]Section 3
Definitions
Omit “, 78H, 78I, 78K, 78L” from
paragraph (a) of the definition of prescribed sexual
offence.
[2]Section 117 Application of
Division
Omit “66, 73, 74, 78A, 78B, 78N, 78O,
78Q,”.
Insert instead “73, 78A,
78B,”.
2.2Young
Offenders Act 1997 No 54
Section 8 Offences covered by
Act
Omit “, 78Q” from section 8 (2)
(d).
Historical
notes
Table of amending
instruments
Crimes Amendment
(Sexual Offences) Act 2003 No 9. Second reading speech
made: Legislative Assembly, 7.5.2003; Legislative Council, 21.5.2003. Assented
to 5.6.2003. Date of commencement, 13.6.2003, sec 2 and GG No 97 of 13.6.2003,
p 5624.