Failure by a Person in Authority to Protect a Child from a Sexual Offence? Victoria

Failure by a person in authority to protect a child from a sexual offence, is a very serious charge and you need to carefully examine the situation that led to such a charge. If you are convicted, then this charge does carry a custodial sentence. You need the assistance of a criminal lawyer right away.

Have you been charged with Failure by a Person in Authority to Protect a Child from a Sexual Offence?

Some questions to discuss with your lawyer are: what was your position within the organisation that the child who allegedly required your protection was in? What were the circumstances under which the child was allegedly at risk? What was your knowledge of the situation? What was your level of power in the organisation?

It is important to note that this is a very complex offence with a number of factors, and one that you really need the services of a competent lawyer to help you both understand and also address. Factors that are important to this offence include determining the standard of care that a reasonable person would expect you to have provided.

To be convicted for this offence it is not necessary for the prosecution to prove that a sexual offence has actually been committed, and it is not necessary that all parties involved were in Victoria at any time. This makes for the possibility of various complexities within the charges.

The Offence

Section 49O of the Crimes Act

The prosecution must prove:

1. The defendant occupies a position within or relation to a relevant organisation; and
2. There is a substantial risk that a relevant child will become the victim of a sexual offence committed by a third person; and
3. The third person is 18 years of age or more; and
4. The third person is associated with the relevant organisation; and
5. The defendant knows that the risk exists; and
6. The defendant has the power or responsibility to remove the risk by reason of their position; and
7. The defendant negligently fails to reduce or remove the risk.

The Maximum Penalty

Level 6 Imprisonment being a maximum of 5 years

Where will my case be heard?

Failure by a person in authority to protect a child from a sexual offence cases can only be heard in the County Court or Supreme Court of Victoria.

Questions to Consider

Did the alleged risk exist at all, or was it something you had any knowledge of and how might you show that to a jury? If you are planning to plead guilty what can you do to try to minimise your sentence?

What to do Next

Your next best step is to secure the services of a reliable, experienced lawyer. This is a very complex charge and you need to know that your future is in good hands. This is not a charge that you want to try to defend yourself.

If you have been charged with ‘failure by a person in authority to protect a child from a sexual offence’ then you need to call a sex offence lawyer immediately so that you can get the best help available. Call our office on 03 8644 7320 to seek expert legal advice

The Legislation

Section 49O Failure by a person in authority to protect a child from a sexual offence

(1) A person (A) commits an offence if—

(a) A occupies a position within, or in relation to, a relevant organisation; and

(b) there is a substantial risk that a relevant child will become the victim of a sexual offence committed by another person who is—

(i) 18 years of age or more; and

(ii) a person associated with the relevant organisation; and

(c) A knows that the risk exists; and

(d) A, by reason of A’s position, has the power or responsibility to reduce or remove that risk; and

(e) A negligently fails to reduce or remove that risk.

(2) A person who commits an offence against subsection (1) is liable to level 6 imprisonment (5 years maximum).

(3) For the purposes of subsection (1), a person negligently fails to reduce or remove a risk if that failure involves a great falling short of the standard of care that a reasonable person would exercise in the circumstances.

(4) For the avoidance of doubt, in a prosecution for an offence against subsection (1), it is not necessary to prove that a sexual offence has been committed.

(5) It is immaterial that some or all of the circumstances constituting an offence against subsection (1) occurred outside Victoria, so long as the relevant child was in Victoria at any time while the substantial risk referred to in subsection (1)(b) existed.

(6) It is immaterial that both A and the relevant child were outside Victoria at the time at which some or all of the circumstances constituting an offence against subsection (1) occurred, so long as the sexual offence was at risk of occurring in Victoria.

(7) In this section—

“person associated”, in relation to a relevant organisation, includes but is not limited to a person who is an officer, employee, manager, owner, volunteer, contractor or agent of the organisation but does not include a person only because the person receives services from the organisation;

“relevant child” means a child (whether identifiable or not) under the age of 16 years who is, or may come, under the care, supervision or authority of a relevant organisation;

“relevant organisation” means—

(a) an organisation that exercises care, supervision or authority over children, whether as its primary function or otherwise, and includes but is not limited to—

(i) a church; and

(ii) a religious body; and

(iii) a school; and

(iv) an education and care service within the meaning of the Education and Care Services National Law (Victoria); and

(v) a children’s service within the meaning of the Children’s Services Act 1996; and

(vi) an out of home care service within the meaning of the Children, Youth and Families Act 2005; and

(vii) a hospital; and

(viii) a government department; and

(ix) a government agency; and

(x) a municipal council; and

(xi) a public sector body; and

(xii) a sporting group; and

(xiii) a youth organisation; and

(xiv) a charity or benevolent organisation; or

(b) an organisation that, in accordance with an agreement or arrangement with an organisation referred to in paragraph (a), is required or permitted to engage in activities associated with the care, supervision or authority over children exercised by the organisation referred to in paragraph (a);

“sexual offence” means—

(a) an offence against a provision of Subdivision (8A), this Subdivision (other than this section), (8C), (8D), (8E), (8F) or (8FA); or

(b) an attempt to commit an offence covered by paragraph (a) (other than section 49K); or

(c)  an assault with intent to commit an offence covered by paragraph (a).