INDECENT TREATMENT OF A CHILD UNDER 16- SECTION 210 CRIMINAL CODE (QLD)

In Queensland, the offence of indecent treatment of a child under 16 is a standard sexual offence police charge people with. It is typical for the complainant and defendant to know each other. This offence captures a wide variety of conduct. For example, it is touching a child, exposing them to porn or procuring them to do an indecent act. Police often get involved because a child has complained to a schoolteacher, friend or parent.

 

 

WHAT IS THE CHARGE OF INDECENT TREATMENT OF A CHILD UNDER 16?

 

Section 210 of the Criminal Code details the criminal offence. A person will be guilty of the crime if they do any of the following:

 

(1) unlawfully and indecently deal with a child under the age of 16 years.

(2) unlawfully procure a child under the age of 16 years to commit an indecent act.

(3) unlawfully permit themself to be indecently dealt with by a child under the age of 16 years.

(4) wilfully and unlawfully expose a child under 16 years to an indecent act by the offender or any other person.

(5) without legitimate reason, wilfully expose a child under the age of 16 to any indecent object or any indecent film, videotape, audiotape, picture, photograph or printed or written matter.

(6) without legitimate reason, take any indecent photograph or record, using any device, any indecent visual image of a child under the age of 16 years.

 

You may be wondering what the words “unlawfully”, “deal with”, “indecent”, “without legitimate reason”, “wilfully”, “permitted”, and “procured” mean when determining if an offence has been committed.

 

Child

It is a person under 16 years of age.

 

Deal With

 

Section 210(6) of the Criminal Code defines “deals with” as:

deals with includes doing any act which, if done without consent, would constitute an assault as defined in this Code.

 

The word “deal with” includes touching the child. The defendant does not need to have connected the child with their hand; it can be any part of the defendant’s body.

 

Indecent

The word “indecent” is given its ordinary everyday meaning. It is what the community would deem indecent (i.e., what offends against currently accepted standards of decency). Indecency is judged in the light of time, place and circumstances.

 

Unlawful

“Unlawful” means not justified, authorised, or excused by law.

 

Without Legitimate Reason

Whether or not the defendant acted without a legitimate reason is a question of fact and is decided by the jury.

 

Wilfully

To do something wilfully means the defendant deliberately or intentionally did it.

 

Permitted

Permitted means to allow.

 

Procured

Procured means to bring about.

 

 

WHAT MUST THE PROSECUTION PROVE?

 

For a person to be found guilty of the offence of indecent treatment of a child under 16, the prosecution must prove beyond reasonable doubt:

 

Section 210(1)(a) – Deal With

1. The defendant dealt with the child;
2. The dealing was indecent;
3. The dealing was unlawful, and
4. The child was under 16 years of age.

 

Section 210(1)(b) – Procure

1. The defendant procured the child;
2. The procurement was to commit an indecent act;
3. The procurement was unlawful, and
4. The child was under 16 years of age.

 

Section 210(1)(c)- Permit

1. The defendant permitted themself to be dealt with by the child;
2. The dealing by the child with the defendant was indecent;
3. The dealing was unlawful, and
4. The child was under 16 years of age.

 

Section 210(1)(d): Exposing to an Act

1. The defendant exposed the child to an act.
2. The act the defendant exposed the child to was indecent;
3. The exposure to the act was unlawful, and
4. The child was under 16 years of age.

 

Section 210(1)(e) – Exposing to indecent film etc.

1. The defendant exposed the child to an indecent object or any indecent film, videotape, audiotape, picture, photograph, or printed or written matter,
2. The defendant did not have a legitimate reason for exposing the child to the object or material, and
3. The child was under 16 years of age.

 

Section 210(1)(f) – Take Photo or Recording

1. The defendant took a photograph or visual image of the child or recorded the child in any way,
2. The photograph, visual image or recording of the child taken by the defendant was indecent and
3. The defendant did not have a legitimate reason for taking the photograph, visual image or recording of the child.

 

HOW DOES INDECENT TREATMENT DIFFER FROM RAPE?

 

For an offence of indecent treatment of a child, the prosecution does not need to prove the complainant did not consent to the sexual act. There does not need to be penetration of any part of the human body for the offence to be committed. Merely touching a person can constitute the offence.

 

WHAT IS THE SENTENCE FOR INDECENT TREATMENT OF A CHILD UNDER 16?

 

The maximum penalty for the offence depends on a variety of things, including:

1. The age of the child.
2. The relationship between the child and the defendant.
3. If the child had an impairment of the mind.
4. If the defendant had the child under their care at the time of the offence.

 

The maximum penalty is 14 years imprisonment if the child was 12 years or older at the time of the offence.

 

The maximum penalty is 20 years imprisonment if, at the time of the offence:

(a) the child was under 12 years of age.

(b) to the defendant’s knowledge, the child was their lineal descendant.

(c) the defendant was the child’s guardian.

(d) the defendant had the child under their care.

(e) the child was a person with an impairment of the mind.

 

 

R v WBH [2019] QCA 249

 

The appellant was convicted after a trial of 1 count of indecent treatment of a child under 16, under 12 years old and, to the appellant’s knowledge, his lineal descendent.

 

The appellant appealed his conviction and sentence to the Queensland Court of Appeal and lost both grounds of appeal.

 

The appellant was sentenced to 3.5 years imprisonment, with a parole eligibility date set after about 11 months. This means the appellant could apply for parole to be released from prison after he had served about 11 months of his sentence.

 

The appellant was 44 to 45 years old at the time of the offence and 49 at the time of sentence. The appellant had a criminal history, which included the following offences:

 

1. 1987 – possession of dangerous drugs and a pipe;
2. 1990 – wilful exposure
3. 2001 – wilful exposure
4. 2016 – indecent treatment of 2 children under 16, one of which was another daughter of his (not the complainant).

 

The complainant was the appellant’s daughter, aged between 7 and 8 years old at the time of the offence.

 

The Facts

 

The appellant suggested the complainant sleep in his bed because her cousin was being mean and naughty to her. The complainant’s mother was away in Thailand at the time.

 

The complainant slept in the appellant’s bed, and in the morning, he tried to make her touch his penis. The complainant tried to sleep, and the appellant continued bringing her closer to him by pulling on her waist. The appellant grabbed the complainant’s hand and pulled it towards his penis. The appellant then grabbed her hand and placed it on his penis. The complainant pulled away, and the appellant pulled her closer to him. The complainant told him to stop, and she only touched his penis once. The appellant told the complainant not to tell her mother, or she would get angry.

 

 

 

R v RAK [2012] QCA 26

 

The appellant went to trial and was convicted of 2 counts of Indecent Dealing with a Child under 12 (now the indecent treatment of a child under 16).

The appellant was sentenced to 3 years imprisonment for each offence and was ordered to serve the sentences simultaneously. A parole eligibility date was set after the appellant had served 18 months. This means the appellant could apply for parole after serving 18 months of his sentence. He appealed against his conviction. He also appealed his sentence, saying it was manifestly excessive. The appellant lost both of his grounds of appeal.

He was 40 years of age at the time of sentence and 37 years of age when he committed the offences. The complainant was his daughter, who was ten years old at the time of the crimes.

The complainant shared a bed with her sister.

The first offence involved the appellant getting into the complainant’s bed and going behind her. The complainant was lying on her side. The appellant started pushing in towards the complainant, placing his leg over the top of her and putting his penis between her legs. The complainant fell asleep after the appellant came in. When the complainant awoke the following day, the appellant wasn’t there. The complainant saw yellowish/white sticky stuff on her pants.

The second offence involved the appellant getting into the complainant’s bed and placing his penis in between her legs. When the appellant breathed in and out, his penis went in and out.

 

INDECENT TREATMENT WILL BE DEALT WITH ON INDICTMENT IN THE DISTRICT COURT

Indecent treatment is such a severe offence the law says it must be dealt with on indictment in the District Court. Before the charge of indecent treatment gets to the District Court, it goes through the committal process in the Magistrates Court. This process can be complex and will depend on the volume of evidence and if witnesses need to be cross-examined. You must have a criminal lawyer guiding you through this process. Our Brisbane Criminal Lawyers always represent clients with these criminal charges. They are well-equipped to guide you and protect your interests as your case progresses.

 

WHICH COURT WILL HEAR THE MATTER?

 

A person charged with indecent treatment will first start in the Magistrates Court in the area where the offence allegedly occurred. Once the charge has been committed to the District Court, it will go to the District Court in the area where the crime allegedly occurred. There are more Magistrates Courts than there are District Courts.

For example, the Brisbane District Court will hear charges which started in the following Courts:

· Brisbane Magistrates Court.

· Caboolture Magistrates Court.

· Cleveland Magistrates Court.

· Richlands Magistrates Court.

· Wynnum Magistrates Court.

 

The Maroochydore District Court will hear charges which started in such courts as the following:

· Caloundra Magistrates Court.

· Maroochydore Magistrates Court.

· Nambour Magistrates Court.

· Noosa Magistrates Court.

 

The Southport District Court will hear charges which started in the:

· Southport Magistrates Court.

· Coolangatta Magistrates Court.

 

Queensland District Court registries are also in Beenleigh, Ipswich, Cairns, Rockhampton and Townsville.

The Criminal Lawyers Brisbane Group regularly appears in the District Court. When your charge gets to the District Court, your legal team should include your criminal law solicitor and a criminal law barrister.

 

WHAT DEFENCES ARE THERE FOR INDECENT TREATMENT OF A CHILD UNDER 16?

 

1. If it is alleged the child was 12 years or older, it is a defence if the defendant believed the child was 16 years or older on reasonable grounds.
2. Suppose it is alleged the child had an impairment of the mind. In that case, it is a defence if the defendant believed on reasonable grounds the child did not have an impairment of the mind.
3. Alibi- the defendant could not have committed the offence because they were elsewhere.
4. The defendant did not do what was alleged.
5. Accident.
6. Nothing was indecent.

 

BECOMING A REPORTABLE OFFENDER

 

If you are convicted of indecent treatment of a child under 16, you will become a reportable sex offender. Becoming a reportable sex offender has many consequences for you, which we have discussed here.

 

 

Criminal Lawyers Brisbane Group, The Sexual Offence Experts

 

If the police have charged you with indecent treatment of a child under 16, get legal advice now. Don’t sit back thinking the charge will go away. Every criminal offence is severe and can have serious consequences for you. A conviction for this offence will have significant repercussions for you. If police charge you with a sexual offence, the best thing you can do is arm yourself with a criminal defence lawyer. But not any criminal lawyer. You want a criminal lawyer whose primary practice is sexual offences. You need the experience of the  Criminal Lawyers Brisbane Group in your corner fighting for you. At the Criminal Lawyers Brisbane Group, we focus on crimes involving sex, drugs and, no, not rock and roll, but fraud. You need the best Brisbane criminal lawyers if you want the best result. Contact the Criminal Lawyers Brisbane Group today for confidential expert advice. We represent clients throughout South-East Queensland. No matter where your criminal charge is, our sex crime lawyers can help you.

Pick up the phone and dial (07) 3153 6215 or fill out the form below for a free, no-obligation chat. Contacting us may be the best thing you can do.