s49A Sexual Penetration of a Child Under the Age of 12

Have you been charged with Sexual Penetration of a Child Under the Age of 12? 

There are a number of things to consider if you have been charged with this offence. 

• Can the prosecution make out their case?
• Did you commit an act of sexual penetration with a child under the age of 12?

You should be aware that pleading guilty to this charge carries a maximum penalty of 25 years imprisonment.

The maximum penalty in relation to this charge has increased over time. That is why it is so important that the prosecution do not lay the wrong charge, the offence date is critical in making this determination. 

It is important to note that consent is not a defence to the charge.

Further, the Crimes Act 1958 stipulates that a mistaken but honest and reasonable belief that the child was aged 12 or more is not a valid defence.

Please read below for more information relating to this charge. Or follow this link for more information on sex offences generally.

The offence

Section 49A of the Crimes Act 1958.

The prosecution must prove that:

1. The defendant intentionally:
   • sexually penetrated another person;
   • caused or allowed a person to sexually penetrate them; or
   • caused a person to sexually penetrate themselves, another person or be sexually penetrated by someone else; and
2. the complainant was under the age of 12 at the time the relevant act took place.

The maximum penalty

Level 2 imprisonment being a maximum of 25 years

Where will my case be heard?

Sexual Penetration of a Child Under the Age of 12 cases can only be heard in the County Court.

Questions to consider

Do you have a defence?

If you are pleading guilty, what can you do to minimise your sentence?

What to do next?

Now is the time to make sure that you have a lawyer who can give you that advice, help you prepare your evidence and discuss what is to be addressed in this matter. Arrange a time to see one of our experienced sex offence criminal lawyers.

Preparation is critical to the success of any matter, ensure that you prepare appropriately by seeking quality legal advice. If you have been charged with Sexual Penetration of a Child Under the Age of 12 make an appointment to see one of our lawyers as soon as is practical.

The legislation

Section 49A Sexual penetration of a child under the age of 12

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

            (a) A intentionally—

              (i) sexually penetrates another person (B); or

              (ii) causes or allows B to sexually penetrate A; or

              (iii) causes B—

(A) to sexually penetrate themselves; or

(B) to sexually penetrate another person (C); or

(C) to be sexually penetrated by C; and

            (b) B is a child under the age of 12 years.

(2) A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).

(3) The standard sentence for an offence against subsection (1) is 10 years.

Notes

1     An exception applies to this offence—see section 49T.

2     A mistaken but honest and reasonable belief that B was 12 years of age or more is not a defence to this offence—see section 49ZC.

3     See sections 5A and 5B of the Sentencing Act 1991 as to standard sentences.

4     An offence against subsection (1) is a category 1 offence under the Sentencing Act 1991. See section 5(2G) of that Act for the requirement to impose a custodial order for this offence.