Sexually based offences in Queensland

Have you been charged with a sexually based offence? Talk to Brisbane’s leading lawyers today. Contact us here.

In Queensland, as with most jurisdictions around the world, sexually based offences are considered to be especially heinous. The reasons behind this are plainly obvious – as human beings, personal safety and dignity are of paramount importance and offenders who take advantage of weaker or more vulnerable people can expect to face very severe penalties.

These offences cover a wide range of offending, including the possession of child exploitation material (child pornography), sexual assault, unlawful carnal knowledge (sexual intercourse with a child) and the most serious – rape. As with all other criminal offences, a wide range of penalties are available and often imposed for sexually based offences, depending upon the circumstances of the case. This is because the courts will recognise that no two offences are ever the same.

What is sexual assault?

Sexual assault can cover a wide range of offending behaviour, and can include the following:

  • Inappropriate touching without consent (such as grabbing a person’s buttocks)
  • Forcing without consent to commit an act of gross indecency (such as forcing a person to touch their genitals)
  • Forcing without consent to see an act of gross indecency (such as masturbation in front of another person)

The maximum penalty for sexual assault is 10 years in prison unless there is aggravation—a weapon is used or more than one person is involved in the assault—in which case the maximum penalty is 14 years in prison.

What is rape?

Rape is the most serious of all sexually based offences and is, generally defined, forcing a person to have sexual intercourse without their consent. The sexual intercourse does not have to be strictly penile/vaginal – oral, anal and digital penetration are all considered to be rape.

Rape is considered a very serious offence and carries a maximum sentence of life imprisonment.

Sexual intercourse with anyone under the age of 12 is rape as a child is not capable of giving consent. Someone who has sexual intercourse with a child may also be charged with other serious sexual offences such as indecent treatment of a child, unlawful carnal knowledge and maintaining a sexual relationship with a child.

How seriously are sexually based offences treated?

The seriousness for which sexually based offences, especially against children, are treated by the courts in Queensland are actually stated in the law.

In Queensland, the penalties that can be imposed and the factors that a court must take into account when deciding a penalty are governed by a piece of legislation known as the ‘Penalties and Sentences Act’. One key sentencing principle under this act states that a sentence of imprisonment should only be imposed as a last resort; and a sentence that allows the offender to stay in the community is preferable.

This essentially means that when passing a sentence, a court should always turn their mind first to any available sentencing options that does not require the person to be imprisoned. This is because the courts recognise that sending a person to jail can have very significant consequences for the person, as well as their families, and so must consider a matter very carefully before doing so. Only if the court is satisfied that no other sentencing option is available or appropriate (such as a fine, community service order or probation) should it then impose a term of imprisonment.

However, when it comes to sentencing an offender for any offence of a sexual nature committed in relation to a child under 16 years or a child exploitation material (child pornography offence) the principle that ‘a term of imprisonment is a sentence of last resort’ does not apply. In fact, the law states the opposite – that the offender must serve an actual term of imprisonment unless there are ‘exceptional circumstances’.

What this essentially means is that the starting point is reversed. When dealing with a sexual offence against a child under 16 years, the court will start with the view that the offender must be imprisoned unless it is satisfied that there is something unusual about the matter or the offender which means that they should not be imprisoned.

What are ‘exceptional circumstances’?

Factors that a sentencing court must take into account when determining whether or not ‘exceptional circumstances’ exist, such that an offender should not be imprisoned, are:

    1. the effect of the offence on the child
    2. the age of the child
    3. the nature of the offence, including, for example, any physical harm or the threat of physical harm to the child or another
    4. the need to protect the child, or other children, from the risk of the offender reoffending
    5. any relationship between the offender and the child
    6. the need to deter similar behaviour by other offenders to protect children
    7. the prospects of rehabilitation including the availability of any medical or psychiatric treatment to cause the offender to behave in a way acceptable to the community
    8. the offender’s antecedents, age and character
    9. any remorse or lack of remorse of the offender
    10. any medical, psychiatric, prison or other relevant report relating to the offender
    11. anything else about the safety of children under 16 the sentencing court considers relevant.

There is a large number of support and assistance available to people who have been the victim of sexual assault. This is because it is recognised that the effects of a sexual crime can have a very long, and sometimes permanent, effect on a person. The Queensland Government provides excellent assistance for victims and this information can be accessed further here:

Have you been charged with a sexually based offence? Talk to Brisbane’s leading lawyers today. Contact us here.

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