Sexual activity in the presence of a child aged 16 or 17 under care, supervision or authority

If you have been charged with sexual activity in the presence of a child aged 16 or 17 under care, supervision or authority, here is some information to know and consider in seeking legal advice with Emma Turnbull Lawyers.

Elements of the offence

For the prosecution to prove the offence of sexual activity in the presence of a child aged 16 or 17 under care, supervision or authority they must satisfy six elements of the offence. They can be found in s 49G of the Crimes Act 1958 (Vic) and are as follows:

  1. The accused intentionally engaged in sexual activity;
  2. Another person was present;
  3. The accused knew that the other person was, or probably was present;
  4. The other person is a child aged 16 or 17; and
  5. The other person was under the care, supervision or authority of the accused.

It is common to see this charge laid against teachers who engage in sexual acts or commence sexual relationships with students.

Will I have to go to court?

Charges for sexual activity in the presence of a child aged 16 or 17 under care, supervision or authority will usually be heard in the Magistrates’ Court or County Court. Once the case goes to court, it is up to the prosecution to prove the elements of the offence. It is important that you seek expert legal advice in building a defence as the circumstances surrounding the events that led to the charge can assist in a strong defence argument.

Maximum penalty:

The maximum penalty a charge for sexual activity in the presence of a child aged 16 or 17 under care, supervision or authority is 5 years imprisonment, known as Level 6 imprisonment.

What sentences are usually given?

According to the Sentencing Council Victoria, between 1 July 2011 and 30 June 2016, 60 people were sentenced with sexual activity in the presence of a child aged 16 or 17 under care, supervision or authority as the principal offence. From that number, 93.3% were given imprisonment sentences. Non-imprisonment sentences included Community Corrections Orders (5%).

What do I do now?

To ensure the best chance of a successful defence, it is important to get in contact with an expert criminal lawyer as soon as possible. At Emma Turnbull Lawyers, we have experienced criminal defence lawyers who can assist you in defending this charge.