It has been reported that a 46-year old man was arrested and charged with three counts of procuring a child after allegedly approaching several kids at Jarvie Park in Marrickville yesterday and encouraging them to engage in unlawful sexual activity.
Police allege the man was also charged with offensive conduct and stalking / intimidating over the conduct towards the children, as well as assaulting police for allegedly spitting at officers and kicking them while being arrested.
The man was refused police bail and will appear in Burwood Local Court today.
The Offence of Procuring in New South Wales
Section 66EB(2) of the Crimes Act 1900 (NSW) makes it an offence punishable by 12 years imprisonment for an adult to intentionally procure a child for unlawful sexual activity.
The maximum penalty increases to 15 years behind bars where the child is under the age of 14 years.
‘Procuring’ is encouraging, enticing, recruiting or inducing a child, whether by threats, promises or otherwise.
For the purposes of the section, a child is defined as any person under the age of 16 years.
‘Unlawful sexual activity’ is any act that constitutes an offence under this Division 10, 10A, 15 or 15A of the Crimes Act, which covers a range of sexualised conduct including:
- Sexual intercourse without consent (also known as ‘sexual assault’), noting that consent cannot be given by a person under the age of 16 years,
- Sexual touching,
- Sexual act,
- Forced self-manipulation,
- Child abuse material, and
- Child prostitution.
The section provides that the offence covers the situation where a person pretends to be a child.
A defence to the charge is that the defendant reasonably believed the complainant was not a child.
Offensive Conduct in New South Wales
Section 4 of the Summary Offences Act 1988 (NSW) provides that “a person must not conduct himself or herself in an offensive manner in or near, or within view or hearing from, a public place or a school.”
The offence is different to ‘offensive language’ which is a crime under section 4A of the same Act – indeed, the legislation makes clear that a person cannot be found guilty of offensive conduct merely by using offensive language.
A defence to offensive conduct is where a person has a “reasonable excuse for conducting himself or herself in the manner.”
The maximum penalty is 3 months behind bars or a fine of $660. A conviction for the offence results in a criminal record.
The Summary Offences Act doesn’t list what is considered “offensive.” So we must turn to the common law to gain an understanding the word in the context of criminal law.
In the classic 1951 Victorian Supreme Court (VSC) case of Worcester v Smith, Justice O’Bryan found that something is offensive if it is “… calculated to wound the feelings, arouse anger or resentment or disgust in the mind of a reasonable person.”
Justice Kerr affirmed and expanded upon this definition in the 1966 ACT Supreme Court case of Ball v McIntyre, which involved a war protester with a placard that read “I will not fight in Vietnam” squatting on a statute of King George V outside Parliament House in Canberra.
According to Justice Kerr, conduct can be “hurtful or blameworthy or improper” and offend “against standards of good taste or good manners,” but may still not amount to offensive under the criminal law.
The hypothetical ‘reasonable person’ is the measure by which a court determines whether something is offensive.
In the case of Ball v McIntyre, the court held that the reasonable person is “reasonably contemporary”, exercises average care, skill and judgement and is not thin-skinned.
Assaulting Police in New South Wales
To establish the offence, the prosecution must prove beyond reasonable doubt that the defendant assaulted, threw a missile at, stalked, harassed or intimidated a police officer.
An ‘assault’ is where:
- The defendant caused the officer to fear immediate and unlawful violence, or made unauthorised physical contact with the officer,
- The officer did not consent, and
- The actions were intentional or reckless.
An action is considered to be against a police officer even though the officer is not on duty, if it is carried out due to:
- Actions by the officer while executing his or her duty, or
- The fact the officer is a police officer.
The maximum penalty increases to 7 years in prison where the defendant inflicts ‘actual bodily harm’ on the officer; which is harm that is more than ‘transient or trifling’; such as lasting cuts or bruises.
The maximum increases to 12 years in prison where the defendant inflicts ‘grievous bodily harm’ on the officer; which is ‘very serious harm’, that includes but is not limited to:
- Any permanent or serious disfigurement,
- The destruction of a foetus, other than by a medical procedure, and
- Any grievous bodily disease.
Defence to assaulting police include self-defence, duress and necessity.