Grooming child under 16 years or parent or carer of child under 16 years: section 218B of the Criminal Code (Qld)

In Queensland it is a criminal offence for persons to engage in sexual acts with children under 16 years of age. In addition to this, the law also makes it an offence for an adult to “groom” a child or a parent or carer of a child under 16 years of age. There does not need to be any physical contact with the child for an offence of grooming. Specific conduct may constitute grooming depending on the circumstances.

 

What does the prosecution need to prove for an offence of grooming under s218B of the Criminal Code?

 

1. You are an adult.

 

2. You engaged in conduct in relation to a child, or you engaged in conduct in relation to a person who has care of a child.

 

3. You engaged in the conduct with the intent to:

 

(a) facilitate the procurement of the child to engage in a sexual act, either in Queensland or elsewhere; or

 

(b) expose, without legitimate reason, the child to any indecent matter, either in Queensland or elsewhere

 

For 3(a) above, the law says:

 

• the prosecution doesn’t need to prove you intended to facilitate the procurement of the child to engage in any specific sexual act.

 

• it doesn’t matter if it is impossible for the child to engage in a sexual act.

 

• it doesn’t matter when you intended the child would be procured to engage in a sexual act.

 

Relevant Definitions

 

“Adult”- a person of or above the age of 18 years.

 

“Child”- a person under 16 years of age, or a person you believed to be under 16 years of age. It does not matter if the person is a real person or a fictitious person who was represented to you as a real person under 16 years.

 

“child engages in a sexual act” if the child:

 

(a) allows a sexual act to be done to the child; or

(b) does a sexual act to the child’s own body or the body of another person; or

(c) otherwise engages in an act of an indecent nature.

A child engaging in a sexual act is not limited to sexual intercourse or acts involving physical contact.

 

“Indecent matter” includes indecent film, videotape, audiotape, picture, photograph or printed or written matter.

 

“Procure”- to knowingly entice or recruit for the purposes of sexual exploitation.

 

“Person who has care of a child”-  includes a parent, foster-parent, step-parent, guardian or other adult in charge of the child, whether or not the person has lawful custody of the child. It also includes a reference to a person whom the adult believes is a person who has care of a child.

Are There Any Defences To A Charge Of Grooming?

 

Yes, section 218B(10) of the Criminal Code says it is a defence if you believed on reasonable grounds the child was at least 16 years old. If it is alleged the child or ficitious child was under 12 years old, it is a defence if you believed on reasonable grounds the child was at least 12 years old.

 

What Is The Penalty For An Offence of Grooming?

 

The Maximum penalty is 5 years imprisonment.

The maximum penalty increases to 10 years imprisonment if the child is a person under 12 years or a person, including a fictitious person, the adult believes is under 12 years.

 

R v Thompson [2019] QCA 245

 

Mr. Thompson pleaded guilty in the District Court to one offence of grooming a child with intent to procure.

 

The complainant was a 14-year-old girl. Mr. Thompson came across the complainant’s phone number through a friend. Over some weeks Mr. Thompson sent the complainant sexually explicit text messages of an extremely crude nature. On one occasion the complainant told Mr. Thompson she was 14 years old. Mr. Thomspon responded with “bullshit” and the complainant replied saying she wouldn’t tell the cops and she was not like that. Mr. Thompson continued sending text messages to the complainant asking her for pictures of her genitals and breasts and if she “liked to fuck”. Again the complainant told Mr. Thompson she was 14.

 

Police found the messages on Mr. Thompson’s mobile phone. He participated in an interview with police and made admissions to his offending.

 

Mr. Thompson was sentenced on the basis he did not believe the complainant was 14 years old. Mr. Thomspon accepted he couldn’t prove he believed on reasonable grounds the complainant was at least 16 years old.

 

Mr. Thompson was 45 years old at the time of the offence and 46 years of age at the time of his sentence hearing. He had a criminal history, but this was mainly for drug related offences. He had already been on probation for drug offences and satisfactorily completed it. Mr. Thompson had seen a psychologist who in their report spoke favourably of steps he had taken towards rehabilitation including cognitive behaviour therapy to assist with his drug abuse.

 

Mr. Thompson was sentenced by the District Court to 4 months imprisonment with 2 years’ probation.

 

Mr. Thompson appealed his sentence to the Queensland Court of Appeal on 3 grounds, one of which the sentence was manifestly excessive. The Court of Appeal reduced Mr. Thompson’s sentence to 105 days imprisonment and 1 year of probation. Her Honour Justice Philippides whom the 2 other members of the Court of Appeal agreed with stated in Mr. Thompson’s case it would have been open for him to have been sentenced to a lengthy period of probation with no time in prison.

 

Criminal Lawyers Brisbane Group, The Sexual Offence Experts

 

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