MAINTAINING A SEXUAL RELATIONSHIP WITH A CHILD

In Queensland the offence of maintaining a sexual relationship with a child is one of the most serious. The police cannot charge a person with the offence. A person can only be charged with the offence if the Director of Public Prosecutions or another Crown Law Officer gives their consent. This is how serious the charge is.

The way a person gets charged with an offence of maintaining is they will have been charged by police with sexual offences involving a child. When the person’s charges leave the Magistrates Court to the District Court, the DPP will prepare an indictment. It is at the indictment preparation stage the DPP will decide to indict the offence of maintaining.

The offence often arises where a child makes a complaint to police about sexual offences. The child may say things happened a lot, but they can only remember a few specific times. The prosecution will include on the indictment the offences the child can remember. For the times the complainant cannot recall the specifics of, the prosecution will include an offence of maintaining.

 

WHAT IS THE CHARGE OF MAINTAINING A SEXUAL RELATIONSHIP WITH A CHILD?

 

Section 229B of the Criminal Code contains the offence of maintaining a sexual relationship with a child. Section 229B provides in part:

 

(1) Any adult who maintains an unlawful sexual relationship with a child under the age of 16 years commits a crime.

Maximum penalty—life imprisonment. 

 

(2) An unlawful sexual relationship is a relationship that involves more than 1 unlawful sexual act over any period.

 

WHAT MUST THE PROSECUTION PROVE?

 

For the prosecution to prove this offence beyond reasonable doubt, they must prove:

1. The defendant was an adult- this means they must have been 18 years or older.

2. The complainant was a child under 16 years of age.

3. The defendant had an unlawful sexual relationship with the child.

 

The word “unlawful” means not authorised, justified, or excused at law.

 

To prove there was a “sexual relationship” means the prosecution must prove there was more than 1 unlawful sexual act over any time.

 

A “Sexual Act” is defined in the Criminal Code as being: “an act that constitutes, or would constitute (if it were sufficiently particularised), an offence of a sexual nature”.

An Offence of a “Sexual Nature” is defined in the Criminal Code to be the following offences:

(a)  Indecent treatment of a child under 16, except for the offence when it involves the defendant:

(i) exposing a child to an indecent object or any indecent film, videotape, audiotape, picture, photograph or printed or written matter; or

(ii) taking an indecent photograph or recording, by an indecent visual image of a child under the age of 16 years.

(b) Carnal knowledge with or of a child under 16.

(c) Incest

(d) Rape.

(e) Attempted rape.

(f) Sexual assault.

4. The defendant “maintained” the unlawful sexual relationship with the child.

The relationship between the defendant and child must have been carried on, kept up or continued. There needs to be an ongoing nature to the sexual relationship between the defendant and child. There needs to be a continuity of contact between them, as opposed to isolated incidents.

 

WHAT IS THE SENTENCE FOR MAINTAINING A SEXUAL RELATIONSHIP WITH A CHILD?

 

In Queensland, the maximum penalty for the offence is life imprisonment. If you are convicted of the offence, this doesn’t mean the court will sentence you to life imprisonment. Life imprisonment is the maximum penalty a court can sentence a person to. The penalty a person receives will depend on various things. Below are summaries of some cases from the Queensland Court of Appeal where persons have been sentenced for the offence of Maintaining an unlawful sexual relationship with a child.

 

R v SDR [2022] QCA 93

 

The applicant pleaded guilty and was sentenced in the District Court for the following offences:

 

• 1 x Maintaining a sexual relationship with a child- 10 years imprisonment with a declaration he was a Serious Violent Offender requiring him to serve 80% of his sentence before being eligible to apply for parole.

 

• 2 x Rape- convicted and not further punished.

 

• 3 x Indecently dealing with a child under 12 years- convicted and not further punished for 1 count, but for the 2 remaining counts he was sentenced to 2 years imprisonment.

 

The applicant appealed against his sentence to the Court of Appeal based on the sentence being manifestly excessive.

 

The applicant was 42 to 44 years of age at the time of the offences. He did not have any criminal history at the time of the offences, but breached his bail on 2 occasions.

 

There were 2 complainants. The applicant baby sat each complainant.

 

The first complainant was 9 to 10 years of age at the time of the offences. The applicant was charged with the offence of Maintaining a sexual relationship with a child and the 2 counts of rape. The period of the maintaining offence was just over 13 months. During this period the applicant visited the complainant’s home once a week.

 

The applicant visited the complainant’s home once a week and offended against her many times. He used his fingers and penis to penetrate the complainant’s vagina.

The indecent dealing offence related to the applicant touching the complainant’s breasts under her clothing.

 

The second complainant was 9 years of age.

 

On the same day, there were two indecent dealing crimes. The offences occurred when the complainant visited the first complainant. The first offence occurred when the applicant placed his hand in the complainant’s swimwear and rubbed her genital area. For the second offence the applicant rubbed the complainant’s bottom. The applicant stopped when the complainant protested against his conduct.

 

The police became aware of the offending when the second complainant made a complaint to them. When the police were investigating the offending the first complainant was spoken to and she too made disclosures.

 

The police interviewed the applicant twice. During the first interview the applicant admitted touching the second complainant, but he said it was accidental. In the second interview. the applicant made admissions to offending, but tried to minimise it.

 

Justice Boddice delivered the main judgment and he said “protracted sexual offending against children by adults in positions of trust will attract sentences of nine to 11 years’ imprisonment, at least”.

Justice Boddice commented the applicant’s sexual offending was protracted a prepubescent female, who was in his care. He referred to the penetration of the complainant being both digital and penile. He commented the appellant persisted with his conduct despite the complainant protesting and complaining of pain.

 

Justice Boddice said the applicant’s pleas of guilty were timely, and had value. He said the complainants were not required to give evidence. Justice Boddice said but for the applicant’s pleas of guilty he would have been looking at least 10 years imprisonment. His Honour reduced the sentence of 10 years imprisonment to 9 years imprisonment for the maintaining a sexual relationship with a child. He did not change the sentences for the remaining offences.

 

R v BCG [2012] QCA 167

The applicant was convicted in the District Court after a jury trial of the following offences:

 

• Maintaining an unlawful sexual relationship with a child- 3.5 years imprisonment.
• Indecent treatment of a child under 16, under 12 (exposing her to an indecent film)- 2 years imprisonment.

 

Both terms of imprisonment were ordered to be served concurrently (at the same time).

 

The applicant appealed to the Queensland Court of Appeal against his conviction, and his sentence.

 

The applicant was 30 years of age at the time of the offences, and 34 years of age at the time of his sentence. The applicant had a criminal history, but it was said to be immaterial.

 

The complainant was the applicant’s daughter who was 11 years old at the time.

The offending for the maintaining charge was over a 3 month period.

 

The maintaining offence involved the applicant:

• massaging the complainant’s vagina area on the outside of her clothing using his hands while she played on an XBox in his bedroom. This occurred over a period of weeks on an unknown number of occasions.
• massaging the complainant’s breasts once or twice.
• lifting the complainant like an aeroplane and kissing her vaginal area outside her clothing on 2 or 3 occasions.
• masturbating himself in bed while the complainant laid beside him.
• kissing the complainant’s mouth while she lay in the bed between his wife and him.

The indecent treatment offence involved the applicant showing the complainant to a pornographic movie. While the applicant did this he gave her a vibrator and instructions on how to use it.

The applicant was successful in his appeal against his sentence. The Court commented the applicant didn’t use any force and did not touch the complainant under her clothing or penetrate her.

The applicant was resentenced to 2.5 years imprisonment for the maintaining, and 12 months imprisonment for the indecent treatment.

 

WHERE WILL MY CHARGE BE HEARD?

 

A charge of maintaining a sexual relationship with a child is heard in the District Court.

 

WHAT DEFENCES ARE THERE FOR MAINTAINING A SEXUAL RELATIONSHIP WITH A CHILD?

 

1. You did not have a sexual relationship with the child.
2. If it is alleged the child was 12 years or older at the time of the offence, you believed on reasonable grounds the child was at least 16 years old.

Criminal Lawyers Brisbane Group, The Sexual Offence Experts

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