Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (42 of 2010)

Schedule 1   Amendments relating to sexual offences against children

Part 2   Amendments relating to child sex offences involving postal or similar services, or carriage services

Criminal Code Act 1995

28   After section 474.24 of the Criminal Code

Insert:

474.24A Aggravated offence - offence involving conduct on 3 or more occasions and 2 or more people

(1) A person commits an offence against this section if:

(a) the person commits an offence against one or more of the following provisions on 3 or more separate occasions:

(i) section 474.19 (using a carriage service for child pornography material);

(ii) section 474.20 (possessing etc. child pornography material for use through a carriage service);

(iii) section 474.22 (using a carriage service for child abuse material);

(iv) section 474.23 (possessing etc. child abuse material for use through a carriage service); and

(b) the commission of each such offence involves 2 or more people.

Penalty: Imprisonment for 25 years.

(2) There is no fault element for any of the physical elements described in paragraph (1)(a) other than the fault elements (however described), if any, for the offence against section 474.19, 474.20, 474.22 or 474.23.

(3) To avoid doubt, a person does not commit an offence against section 474.19, 474.20, 474.22 or 474.23 for the purposes of paragraph (1)(a) if the person has a defence to that offence.

Offence or conduct need not be the same

(4) For the purposes of subsection (1), it is immaterial whether the offence, or the conduct constituting the offence, is the same on each occasion.

Double jeopardy etc.

(5) A person who has been convicted or acquitted of an offence (the aggravated offence ) against this section may not be convicted of an offence against section 474.19, 474.20, 474.22 or 474.23 in relation to the conduct that constituted the aggravated offence.

(6) Subsection (5) does not prevent an alternative verdict under section 474.24B.

(7) A person who has been convicted or acquitted of an offence (the underlying offence ) against section 474.19, 474.20, 474.22 or 474.23 may not be convicted of an offence against this section in relation to the conduct that constituted the underlying offence.

474.24B Alternative verdict if aggravated offence not proven

If, on a trial for an offence (the aggravated offence ) against subsection 474.24A(1), the trier of fact:

(a) is not satisfied that the defendant is guilty of the aggravated offence; but

(b) is satisfied beyond reasonable doubt that he or she is guilty of an offence (the underlying offence ) against section 474.19, 474.20, 474.22 or 474.23;

it may find the defendant not guilty of the aggravated offence but guilty of the underlying offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

474.24C Consent to commencement of proceedings where defendant under 18

(1) Proceedings for an offence against this Subdivision must not be commenced without the consent of the Attorney-General if the defendant was under 18 at the time he or she allegedly engaged in the conduct constituting the offence.

(2) However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, such an offence before the necessary consent has been given.

Subdivision E - Offence relating to obligations of internet service providers and internet content hosts