Sexual Offences – WA
Persistent sexual conduct with a child under 16 is one of the most serious child sexual offences in Western Australian law. It carries a maximum penalty of 20 years imprisonment and is specifically designed to capture patterns of repeated sexual offending against children — where the nature and frequency of the conduct over time reflects a sustained exploitation of a child, even where individual incidents may be difficult to specify or date with precision.
This offence is heard in the District Court and results in mandatory sex offender registration upon conviction. If you are facing this charge in Western Australia, the seriousness of the matter demands immediate and specialist legal advice.
The Law — Section 321A of the Criminal Code Act Compilation Act 1913 (WA)
The offence is created by section 321A of the Criminal Code Act Compilation Act 1913 (WA). A person who persistently engages in sexual conduct with a child under the age of 16 is guilty of a crime carrying a maximum penalty of 20 years imprisonment.
A person persistently engages in sexual conduct with a child for the purposes of this section where they do a sexual act in relation to the child on three or more occasions, each of which occurs on a different day.
Why This Offence Exists
The persistent sexual conduct charge was created to address a specific problem in the prosecution of ongoing child sexual abuse. In many cases involving sustained abuse of a child — particularly within families or other close relationships — the complainant is unable to identify or specify precise dates, times, or the exact details of individual incidents. The abuse occurs repeatedly over an extended period, often from a young age, and the individual incidents can blur together in the complainant’s memory.
Without the persistent conduct provision, prosecutors in these cases would be required to charge individual acts with sufficient specificity to satisfy the requirements of fairness to the accused. Where that specificity was not available, charges might fail or the full extent of the conduct might go uncharged.
Section 321A resolves this by creating an offence defined by the pattern of conduct rather than individual acts. The prosecution must establish the period within which the offending occurred and that at least three sexual acts took place on different days — but need not specify the precise dates or the specific acts alleged.
What Constitutes a “Sexual Act”
The sexual acts that constitute this offence include:
- Sexually penetrating a child under 16
- Procuring, inciting or encouraging a child under 16 to engage in sexual behaviour
- Indecently dealing with a child under 16
- Procuring, inciting or encouraging a child under 16 to engage in or submit to indecent acts
- Indecently recording a child under 16
The sexual acts relied upon by the prosecution do not all need to be of the same type. Three separate incidents involving different forms of sexual conduct can together constitute persistent sexual conduct. This further reflects the offence’s focus on the pattern of exploitation rather than any particular type of act.
Geographic Scope
The acts relied upon need not all have occurred in Western Australia — provided that at least one of the acts occurred in WA, the charge can be brought in this jurisdiction. This provision ensures that persons who commit sexual acts against a child across multiple states or internationally cannot avoid prosecution simply because some of the conduct occurred outside WA.
What the Prosecution Must Prove
The prosecution must establish beyond a reasonable doubt:
- The complainant was under the age of 16 at the time the acts were committed
- The accused committed at least three sexual acts in relation to the complainant
- Each of the three or more acts occurred on a different day
- At least one of the acts occurred in Western Australia
- The accused was the person who committed the acts
Critically, the prosecution must specify the period during which the offending is alleged to have occurred but does not need to specify the dates of individual incidents or the particular acts alleged for each occasion. This is a significant departure from the usual requirement of specificity in criminal charges and reflects the legislative intent to make these offences prosecutable even where the complainant cannot recall precise details.
Possible Defences
The complainant was aged 16 or over — the offence requires that the child was under 16 at the time of the acts. Where there is genuine uncertainty about the child’s age at the relevant time, this may be raised as a defence. In most cases, the child’s age is readily established by documentary evidence such as a birth certificate.
Reasonable belief as to age — with age proximity — it may be a defence if the accused can prove they reasonably believed the child was aged 16 or over at the time of the acts, provided the accused is not more than three years older than the child’s actual age. This defence is narrow and requires both a genuine and reasonable belief about age and that the age gap between the accused and the child was three years or less.
Fewer than three occasions — the prosecution must establish that the conduct occurred on at least three separate occasions on different days. Where the evidence supports fewer than three occasions, or where there is genuine doubt about the number of incidents, this may provide a basis for a defence or for a partial challenge to the charge.
Identification — where the prosecution cannot establish beyond reasonable doubt that the accused was the person who committed the acts.
No sexual act occurred — contesting the complainant’s account of the conduct alleged.
Lawful marriage — section 321A provides that it is a defence if the accused can prove they were lawfully married to the child. This defence has extremely limited practical application given WA’s marriage laws.
The Particular Challenges of These Cases
Prosecutions under section 321A present particular challenges for both the prosecution and the defence that differ from cases involving specific charged incidents.
For the defence, the lack of specificity in the prosecution case — the absence of particular dates and precise act descriptions — makes it more difficult to challenge individual allegations with specific evidence such as alibi. The defence cannot point to a particular date and say “I was elsewhere that day” because no particular dates are alleged.
However, the prosecution case also has vulnerabilities. The complainant’s account of the pattern of conduct must still be credible, consistent, and reliable. Where the complainant’s evidence is vague, internally contradictory, or inconsistent with other known facts — such as when events are alleged to have occurred, who else was present, or the physical layout of locations described — these inconsistencies can form the basis of an effective defence.
Expert evidence about the reliability of memory in children, particularly where abuse is alleged to have occurred over an extended period from a young age, may also be relevant in appropriate cases.
Sentencing
The maximum penalty is 20 years imprisonment. WA courts treat persistent sexual offending against children as among the most serious conduct on the criminal calendar. The sentencing factors that courts consider include:
- The nature and range of the sexual acts committed
- The age of the child at the commencement and throughout the period of offending
- The duration of the offending period
- The relationship between the accused and the child — offending within a family or position of trust is treated particularly seriously
- The psychological impact on the child
- The accused’s criminal history, particularly any prior sexual offending against children
- Whether the accused pleaded guilty and cooperated with the process
- The accused’s personal circumstances and prospects for rehabilitation
For sustained offending over extended periods, particularly within families, sentences approaching the maximum are not uncommon.
Sex Offender Registration
A conviction for persistent sexual conduct with a child under 16 results in mandatory registration under the Community Protection (Offender Reporting) Act 2004 (WA). Given the maximum penalty of 20 years, sentences of 5 years or more — triggering lifetime registration — are common in serious cases. Where a shorter sentence is imposed, registration for 15 years applies.
Frequently Asked Questions
Does the prosecution need to prove exactly what happened on each occasion? No. The prosecution must establish the period of offending and that at least three acts of a sexual nature occurred on different days, but does not need to specify the precise dates or the particular acts for each occasion. This is one of the defining features of the offence.
What if the child can only remember that things happened but cannot say how many times? The prosecution must establish at least three occasions. Where the evidence supports a finding of three or more occasions on different days — even if precise details are not available — the offence can be established. The reliability of the complainant’s evidence about the overall pattern of conduct, even without specific detail, is assessed by the jury.
Can I be charged with both persistent sexual conduct and with specific acts as well? Yes. In some cases, prosecutors charge both persistent sexual conduct under section 321A and specific acts where there is sufficient evidence to support individual charges. The specific strategy depends on the evidence available and the prosecutor’s assessment of the case.
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This page contains general legal information about persistent sexual conduct with a child under 16 under Western Australian law. It does not constitute legal advice. Laws and penalties are subject to change. Contact our office for advice specific to your circumstances.