For offences alleged to have been committed before 1 July 2017, s45 contained the offence of sexual penetration of a child under 16.
This offence came into force on 22 November 2000, replacing the former offences specified in ss45 and 46 of the Crimes Act 1958.
The offence applies to any acts committed on or after 5 August 1991 and before 1 July 2017 (Crimes Act 1958 s593(5)).
If an offence is alleged to have been committed between dates, one date before and one date on or after 5 August 1991, the offence is alleged to have been committed before 5 August 1991 (Crimes Act 1958 s593(6)).
The current s45(4) and s45(4A) apply only to offences committed on or after 1 December 2006. Their impact is considered below in the discussion of Statutory defences and exemptions.
The offence was further amended on 17 March 2010 by s3 of the Crimes Legislation Amendment Act 2010 to raise the age limits for various purposes from 10 to 12. This change only applies to offences committed on or after 17 March 2010.
The elements of the offence are set out in s45(1) of the Crimes Act 1958. The prosecution must prove that:
The accused took part in an act of sexual penetration with the complainant;
The accused intended to take part in that act of sexual penetration; and
The complainant was under the age of 16 at the time the sexual penetration took place.
Taking Part in an Act of Sexual Penetration
The first element requires the accused to have "taken part" in an act of "sexual penetration" with the complainant (Crimes Act 1958 s45(1)).
"Sexual penetration" is defined in s35(1)(a) of the Crimes Act 1958. For more information on the meaning of sexual penetration see Rape.
Section 35(2) of the Crimes Act 1958 provides that both the person who sexually penetrates another person and that other person shall be deemed to be "taking part" in an act of sexual penetration. This means that an accused may be found guilty of the offence whether he or she was sexually penetrating the complainant or was being sexually penetrated by the complainant.
Intention to Take Part in an Act of Sexual Penetration
The second element requires the accused to have intended to take part in an act of sexual penetration with the complainant (Crimes Act 1958 s45(1)).
The intention must have been to sexually penetrate or be penetrated. An intent to commit an indecent assault is not sufficient (Anderson v R  VSCA 108).
There will often be no issue about whether the act was intentional. For example, if there is evidence that the penetration took place over an extended period of time, there will ordinarily be no doubt about the accused’s mental state (Anderson v R  VSCA 108).
However, in some cases intent will be in issue. Where this is so, it is of paramount importance that the jury be directed about the prosecution’s obligation to establish intent beyond reasonable doubt (R v AJS (2005) 12 VR 563; MG v R (2010) 29 VR 305; Anderson v R  VSCA 108).
For example, a clear direction about intention will be necessary where it is possible that any penetration that occurred was accidental. Such a possibility must be excluded for this element to be proven (Anderson v R  VSCA 108; R v AJS (2005) 12 VR 563).
Child Under 16
The third element requires the prosecution to prove that the complainant was under the age of 16 at the time the relevant act took place (Crimes Act 1958 s45(1)).
The jury should determine the complainant’s age having regard to the evidence in the case, or if no other sufficient evidence is presented, to the complainant’s appearance (Crimes Act 1958 s411).
Section 45(2) specifies two aggravating circumstances which will make someone who is guilty liable to a greater maximum penalty. These circumstances are:
Where the child was under the age of 12 at the time of the offence; or
Where the child was aged between 12 and 16, and is under the care, supervision or authority of the accused.
Section 45(5) provides that these circumstances of aggravation are not elements of the offence, but that they must be stated in the indictment if they are alleged by the prosecution.
Under s45(6), where an accused disputes the circumstances set out in s45(2) and wants to have this matter determined at the trial, they may do so by pleading not guilty to the offence, even if they do not dispute the other facts alleged by the prosecution in proof of the offence.
Section 45(7) provides that the circumstances of aggravation must be determined by a jury where the accused pleads not guilty, and by the trial judge where the accused pleads guilty.
It is therefore possible that where an accused pleads not guilty to sexual penetration of a child under 16, the trial may require the prosecution to prove:
The elements of the offence only (if no circumstances of aggravation are alleged in the indictment);
The aggravating circumstances only (if the accused disputes the aggravating circumstances but not the other facts alleged by the prosecution); or
The elements of the offence and the aggravating circumstances.
If an accused pleads not guilty to an alleged offence contrary to s45 in which aggravating circumstances have been included in the indictment, the judge should inquire as to whether they will be contesting the elements of the offence, the aggravating circumstances, or both.
Care, supervision or authority
The words "care, supervision or authority" are to be given their ordinary grammatical meaning (R v Howes (2000) 2 VR 141).
The words "care, supervision or authority" should be read disjunctively (R v Howes (2000) 2 VR 141).
These words are intended to encompass those who, by virtue of an established and ongoing relationship involving care, supervision or authority, are in a position to exploit or take advantage of the influence which grows out of the relationship (R v Howes (2000) 2 VR 141).
The relationship of care, supervision or authority does not need to be based on a legal right or power. While legal authority may create or help to create such a relationship, it is not essential (R v Howes (2000) 2 VR 141; R v Macfie  VSCA 173).
The words therefore cover a person who has assumed de facto control, supervision or authority over a child, even if responsibility for that child has not been delegated to them by the person with legal responsibility for that child (R v Macfie  VSCA 173).
Care, supervision or authority may be vested in more than one person or authority at the same time (R v Macfie  VSCA 173).
Care, supervision or authority may change from time to time, depending on the circumstances (R v Macfie  VSCA 173).
It is not necessary that the occasion on which the penetration took place was connected with, or arose out of, the relationship of care, supervision or authority, or that the parties were acting in the capacities which gave rise to the relationship. It is sufficient if the jury is satisfied that there was a standing relationship of care, supervision or authority between the parties, and that that relationship existed on the day on which the penetration took place (R v Howes (2000) 2 VR 141).
Statutory defences and exemptions
The offence specified in s45(1) does not apply if the child is between the ages of 12 and 16 and the people taking part in sexual penetration were married to each other (s45(3)).
For offences committed before 17 March 2010, this defence is also available if the child was aged 10 or 11 (see Crimes Legislation Amendment Act 2010 s3).
Section 45(4) states that consent is not a defence to a charge of sexual penetration of a child under 16, unless the child was 12 years or older and:
The accused believed on reasonable grounds that the child was 16 or older; or
The accused was not more than 2 years older than the child; or
The accused believed on reasonable grounds that he or she was married to the child.
For offences committed before 17 March 2010, this defence is also available if the child was aged 10 or 11 (see Crimes Legislation Amendment Act 2010 s3).
In relation to s45(4)(b), consent will not be a defence where the accused’s actual age exceeds the child’s by anything more than 24 months. The availability of the defence is not determined by a measure limited to whole-years (Stannard v DPP (2010) 28 VR 84).
Burden of proof
Sections 45(4) and s45(4A) were introduced by s9 of the Crimes (Sexual Offences) Act 2006. These amendments apply to offences committed after 1 December 2006 (Crimes Act 1958 s606A).
The sections were further amended by s3 of the Crimes Legislation Amendment Act 2010 to raise the age at which a child may consent from 10 to 12. Those amendments only apply to offences committed on or after 17 March 2010.
The effect of these provisions is to place the legal burden on the accused to prove, on the balance of probabilities, that he or she believed on reasonable grounds that the child was 16 or older (s45(4)(a)), or that he or she was married to the child (s45(4)(c)).
However, for offences alleged to have been committed prior to 1 December 2006, where there is an evidentiary basis for a s45(4) defence, the burden of proof is on the prosecution to disprove the defence beyond reasonable doubt (R v Mark & Elmazovski  VSCA 251; R v Deblasis (2007) 19 VR 128; R v Fagone  VSCA 175. Cf R v Douglas  VR 721).
Judges should carefully explain the burden of proof to the jury in a way they can understand (R v Fagone  VSCA 175). 
Generally, if the age gap between the complainant and the accused is in issue under s45(4)(b), the prosecution will be required to prove, beyond a reasonable doubt, that the accused is more than 2 years older than the complainant.
It is only if the jury is satisfied that one of the matters specified in s45(4) have been proved to the requisite standard that consent will be relevant. In such cases, the prosecution will then need to prove, beyond reasonable doubt, that the complainant did not consent.
For there to be reasonable grounds for a state of mind (such as belief), there must exist facts which are sufficient to induce that state of mind in a reasonable person (George v Rockett and Another (1990) 170 CLR 104).
At common law, the fact that the accused had used drugs or alcohol could be relevant to his or her belief that the child was 16 or older (see, e.g., R v Fagone  VSCA 175).
However, this issue only needed to be addressed if there was a factual foundation for finding that the accused’s drug or alcohol use affected his or her belief that the child was 16 or older. The mere fact that s/he had used drugs or alcohol at the relevant time was not sufficient (R v Fagone  VSCA 175).
For offences committed on or after 1 November 2014, section 322T restricts the use of evidence of self-induced intoxication in assessing whether a person had a reasonable belief for the purpose of a defence. Judges will need to consider whether section 322T applies to the defence of consent for this offence. As a matter of prudence, for the purpose of this Charge Book, we have assumed that s322T does not apply to this defence. See Statutory Intoxication for more information.
48. For offences committed before 1 November 2014, the relevance of drug or alcohol use generally is discussed in Common Law Intoxication.
Reasonable grounds for belief
As it is the grounds for the accused’s belief that must be reasonable, not the belief itself, the accused does not need to prove that he or she had the same state of mind as a reasonable person (LAL v R  VSCA 111).
However, it is not sufficient for the accused to prove that he or she thought that there were reasonable grounds for his or her belief. There must be facts which would be sufficient to induce a reasonable person to believe the child was 16 or older (Curtis v R  VSCA 102; LAL v R  VSCA 111; George v Rockett (1990) 170 CLR 104).
Where the complainant did not tell the accused his or her age, it will usually be necessary for the accused to say what it was about the complainant’s appearance, demeanour or behaviour which induced the belief that he or she was aged 16 or over (Curtis v R  VSCA 102).
Accused’s awareness of the absence of consent
Crimes Act 1958 s38, s38A, & s39 expressly describe a fault element (or mens rea) associated with the complainant’s lack of consent. This is, the accused must have acted while aware that the complainant was not or might not have been consenting, or while not giving any thought to whether the complainant was consenting. No other Crimes Act 1958 sexual offences include "awareness of non consent" as a statutory fault element.
Whether this additional awareness element should be implied for other sexual offences has not been authoritatively determined. However, despite the contrast in drafting between s38, s38A, & s39 and the other sexual offences, it is likely that wherever consent is an issue, mens rea in respect of consent will also be relevant. This would be consistent with the principles set down in He Kaw Teh v R (1985) 157 CLR 523 and now applied in relation to common assault by Parish v DPP (2007) 17 VR 412.
If a mens rea requirement in respect of consent is to be implied, it will be necessary to determine the form of mens rea that will be sufficient. For rape and indecent assault at common law the mens rea associated with consent was the same as that reflected in Crimes Act 1958 s38 and s39 before 1 January 2008 (R v Saragozza  VR 187, DPP v Morgan  AC 182, R v Kimber  1 WLR 1118). That is, it was sufficient if the sexual act was done with the awareness that the complainant was not consenting or might not be consenting. It has been assumed that this form of mens rea attaches to the consent element of all relevant sexual offences, and the charges for these offences are drafted accordingly.
For rape, compelled sexual penetration and indecent assault the Crimes Amendment (Rape) Act 2007 introduced a new statutory fault element. For these offences it is no defence for accused persons to assert that they were not aware that the complainant might not have been consenting to the sexual act because they had not given any thought to whether or not the complainant was consenting (Crimes Act 1958 s38(2)(a)(ii), s38(4)(b)(ii), s38A(3)(b)(ii), s39(2)(b)).
It is unclear whether this additional fault element was acknowledged under the common law, and if so whether it should now be applied to offences such as Sexual penetration of a child under 16 where it is not a statutory element. See further the discussion in Rape. The charge book charges only include this fault element where it is a statutory fault element. If it is to be applied to other offences, the charge will need to be amended.
Directions about consent and awareness of non-consent
The definition and mandatory directions in respect of consent in s36 and s37, and s37AAA of the Crimes Act 1958 apply to this offence. If mens rea in respect of consent is an implied requirement for this offence, then the directions in s37AA may also need to be given. See Consent and Awareness of Non-Consent for more information in relation to these matters.
As the circumstances of aggravation in s45(2) are not elements of the offence, they should not be considered as part of the jury’s determination of the accused’s guilt. The jury should be directed that their first task is to decide whether the prosecution has proven the elements of the offence beyond reasonable doubt.
The jury should be directed that they should only consider the circumstances of aggravation if they decide that the accused is guilty of the offence specified in s45(1).
In taking the jury’s verdict, the judge should first ask whether the jury has reached a verdict in relation to the offence. If that verdict is guilty, the judge should then ask whether the jury has reached agreement about the circumstances of aggravation.
It has not been judicially determined whether the jury must be unanimous as to the circumstances of aggravation, or whether a majority verdict will suffice. Under s46 of the Juries Act 2000, a majority verdict may only be taken if the jury is unable to agree on its "verdict". While it has not been decided that the jury’s decision about the circumstances of aggravation is a "verdict" for the purposes of the Juries Act, it seems likely that it will be treated in this way.
Due to the construction of s45(2), it seems likely that if the jury return a unanimous verdict as to guilt, but cannot reach a unanimous verdict as to the aggravating circumstances, the verdict will stand and the accused will be liable to the lower penalty specified in s45(2)(c). However, this issue has not been judicially determined.
 For example, instead of charging the jury that "the prosecutor carried an onus to negative, to the criminal standard of beyond reasonable doubt, a belief on reasonable grounds that the complainant was 16 or older", the jury should be directed that "the prosecution must prove, beyond reasonable doubt, that the accused did not believe, on reasonable grounds, that the complainant was 16 or older" (R v Fagone  VSCA 175).