Carnal knowledge with or of a child under 16 (UCK) is a criminal offence in Queensland under Section 215 of the Criminal Code (Qld). This offence covers situations where there is any or attempted sexual intercourse with a person under the age of consent, 16 years.
What is Carnal knowledge with or of a child under 16 (UCK) in Queensland?
Section 215 of the Queensland Criminal Code makes it a criminal offence for anyone who has or attempts to have unlawful carnal knowledge with or of a child under the age of 16 years.
Carnal knowledge is defined in Section 6 of the Queensland Criminal Code as:
(1) If carnal knowledge is used in defining an offence, the offence, so far as regards that element of it, is penetration to any extent.
(2) Carnal knowledge includes anal intercourse.
For the prosecution to prove you had unlawful carnal knowledge, they would need to prove the following beyond a reasonable doubt:
- The defendant inserted his penis into the vagina or vulva, or anus (as the case may be) of the complainant.
- the offence is complete upon penetration;
- penetration to any degree, no matter how slight it is, will be sufficient;
- there does not need to be any ejaculation.
The carnal knowledge must have been “unlawful” to prove the offence. To be unlawful means, it was not authorised, justified or excused by law.
But what if the complainant was a consenting and willing participant?
It doesn’t matter. Even if the complainant consented, you would be guilty of the offence.
Are there any defences?
Yes, you may have a defence. The Criminal Code provides two specific defences for persons charged with Carnal knowledge with or of a child under 16 (UCK).
The first defence is a mistake about the complainant’s age. If the complainant was 12 years or older at the time of the offence, it is a defence if you can prove you believed the child was 16 years of age or older on reasonable grounds.
The second defence is one of being mistaken about the complainant’s impairment of mind. If the child had an impairment of the mind, it is a defence if you can prove you believed on reasonable grounds the child did not have an impairment of the mind.
What is the sentence for Carnal knowledge with or of a child under 16 (UCK) in Queensland?
The penalty will depend on a few things. The Queensland Criminal Code provides the following maximum penalties for the offence of carnal knowledge with or of a child under 16.
If the child was 12 or older- the maximum penalty is 14 years imprisonment.
If the child was under 12, the maximum penalty is life imprisonment.
If the child was under 12 years of age and it was an attempted unlawful carnal knowledge- 14 years imprisonment.
Suppose the child was not your lineal descendant, but you are the child’s guardian or had the child under your care. In that case, the maximum penalty is life imprisonment.
If the child was not your lineal descendant, but you are the child’s guardian or had the child under your care, it was an attempted unlawful carnal knowledge- 14 years imprisonment.
If the child was a person with an impairment of the mind, the maximum penalty is life imprisonment.
To give you an idea of the penalties the Courts have sentenced persons to, we have summarised some cases from the Queensland Court of Appeal. These cases are only examples. Even if your case is similar to any below, this does not mean you will receive the same penalty. A wide variety of factors go into the mix when a Court decides on the penalty they will sentence a person to.
Mr. Clifford pleaded guilty to 1 count of unlawful carnal knowledge of a child under 16. Mr. Clifford was sentenced to 9 months imprisonment wholly suspended for 12 months. The Attorney-General appealed to the Court of Appeal against the sentence because it was manifestly inadequate. The Court of Appeal upheld the sentence.
Mr. Clifford was 31 years of age when he was sentenced. Mr. Clifford had a criminal history involving drug offences and street offences. Mr. Clifford had not previously served any time in prison. Mr. Clifford was the sole carer of his baby son because the child’s mother had left him and the child some months before.
The complainant was two weeks short of her 14th birthday at the time of the offence.
Mr. Clifford was driving a car with a friend down the street where the complainant lived in the early morning hours. Mr. Clifford saw the complainant running down the street and pulled over. The complainant, who had been drinking with friends and was very drunk, was running from her mother. Mr. Clifford asked her what was wrong, and she jumped into his car. The complainant refused to tell Mr. Clifford where she lived or where she wanted to go. The complainant went to McDonald’s with Mr. Clifford and his friend and returned to Mr. Clifford’s house. The complainant had a shower at Mr. Clifford’s house. When Mr. Clifford went to bed, the complainant followed her into his bed, and they had sex.
The following day, Mr. Clifford drove the complainant to her friend’s house, where he dropped her off. Later that day, police attended Mr. Clifford’s house, looking for the complainant. Mr. Clifford told police about his offending, and he thought the complainant was 15 years old.
Justice Keane, who delivered the primary judgment, said the circumstances of this case were exceptional and highlighted the following:
- There was no breach of trust by Mr. Clifford.
- There was no planning by Mr. Clifford whereby he set out to take advantage of the complainant.
- The offence was, at worst, opportunistic; it was undoubtedly not predatory.
- There was no evidence the complainant had suffered in any way.
A jury convicted Mr. Holbeck of:
- Three counts of Indecent treatment of a child under 16 years.
- Two counts of Carnal knowledge of a child under 16 years.
Mr. Holbeck was found not guilty of:
- One count of Indecent treatment of a child under 16 years.
- One count of Carnal knowledge of a child under 16 years.
For the offences of carnal knowledge of a child under 16 years, Mr. Holbeck was sentenced to 18 months imprisonment, suspended after serving six months imprisonment for an operational period of 2 years.
For the offences of Indecent treatment of a child under 16 years, Mr. Holbeck was sentenced to 6 months imprisonment and placed on probation for two years.
The sentences were ordered to be served concurrently (at the same time).
Mr. Holbeck appealed his conviction to the Queensland Court of Appeal on the basis the verdicts were unreasonable and could not be supported having regard to the evidence. Mr. Holbeck also appealed against his sentence because they were manifestly excessive. Mr. Holbeck lost both grounds of his appeal.
Mr. Holbeck was 29 years old at the time of the offences and 31 years old at the time of his sentence. It seems he had a criminal history, but he had not previously been convicted of anything similar.
The complainant was 14 years old at the time of the offences.
Mr. Holbeck committed the offences on the one day/night. The offences involved Mr. Holbeck:
- Licking the complainant’s vagina.
- Having penile intercourse with the complainant on two occasions.
- Taking a photograph of the complainant’s backside and legs.
- Sending the complainant a photograph of his genitals.
Mr. Holbeck did not dispute the sexual contact with the complainant. His defence was that he believed the complainant was 16 or older.
The complainant said Mr. Holbeck was aware of her age. She said she had told him she would be in Grade 10 next year, and she was 15. The problem for Mr. Holbeck was he told police after the first sexual interaction with the complainant (the two charges of which he was found not guilty) he was concerned she was under 16 years of age. The Court said once the jury was satisfied Mr. Holbeck had concerns about the complainant’s age on the first sexual interaction, they could distinguish it from the second sexual interaction. The Court ruled a finding of not guilty by the jury for the counts relating to the first interaction and guilty for the second interaction did not demonstrate a miscarriage of justice.
The Court upheld the sentence of 18 months imprisonment for the counts of carnal knowledge of a child under 16 years. The Court commented some persons have received longer terms of imprisonment.
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