Document ID: chunk:federal_register_of_legislation:C2010A00042:clause:1_29:p1
Version: federal_register_of_legislation:C2010A00042
Segment Type: clause
Provision Reference: sch 1 cl 29 (pt 1/2)
Character Range: 77668–80373

29  After section 474.25 of the Criminal Code
Insert:

Subdivision F—Offences relating to use of carriage service involving sexual activity with person under 16

474.25A  Using a carriage service for sexual activity with person under 16 years of age

Engaging in sexual activity with child using a carriage service
 (1) A person commits an offence if:
 (a) the person engages in sexual activity with another person (the child) using a carriage service; and
 (b) the child is under 16 years of age; and
 (c) the person is at least 18 years of age.
Penalty: Imprisonment for 15 years.

Causing child to engage in sexual activity with another person
 (2) A person (the defendant) commits an offence if:
 (a) the defendant engages in conduct in relation to another person (the child); and
 (b) that conduct causes the child to engage in sexual activity with another person (the participant) using a carriage service; and
 (c) the child is under 16 years of age when the sexual activity is engaged in; and
 (d) the participant is at least 18 years of age when the sexual activity is engaged in.
Penalty: Imprisonment for 15 years.
 (3) The fault element for paragraph (2)(b) is intention.

Defence—child present but defendant does not intend to derive gratification
 (4) It is a defence to a prosecution for an offence against subsection (1) or (2) if:
 (a) the conduct constituting the offence consists only of the child being in the presence of a person while sexual activity is engaged in; and
 (b) the defendant proves that he or she did not intend to derive gratification from the presence of the child during that activity.
Note 1: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Note 2: For other defences relating to this offence, see section 474.29.

474.25B  Aggravated offence—child with mental impairment or under care, supervision or authority of defendant
 (1) A person commits an offence against this section if:
 (a) the person commits an offence against either of the following provisions in relation to another person (the child):
 (i) subsection 474.25A(1) (engaging in sexual activity with child using a carriage service);
 (ii) subsection 474.25A(2) (causing child to engage in sexual activity with another person); and
 (b) either or both of the following apply at the time the person commits the offence:
 (i) the child has a mental impairment;
 (ii) the person is in a position of trust or authority in relation to the child, or the child is otherwise under the care, supervision or authority of the person.
Penalty: Imprisonment for 25 years.
 (2) To avoid doubt, a person does not commit the offence against subsection 474.25A(1 or (2)