Using a Postal Service to Groom Children

Although the Internet has become a popular platform for communications, both legal and illegal, the use of postal or similar services to groom or procure children remains prohibited in the ACT under Commonwealth law.

The offences are divided into using postal or similar services to groom children, and using postal or similar services to procure children. Where the offence involves grooming (making it easier to procure a child), the maximum penalties are slightly lower than where the offence involves the actual procuring of a child. The maximum penalty ranges from 12 years imprisonment to 15 years imprisonment, depending on the offence.

The Offence of Using a Postal Service to Groom Children

The offences of using a postal service to groom children are contained in section 471.25 of the Commonwealth Criminal Code 1995. These offences are not restricted to using postal services specifically, as the offence includes using a ‘postal or similar service’, which includes postal services, courier services, and other packet or parcel carrying services. This is specified in section 470.1 of the Criminal Code 1995.

This provision is separated into three subsections; broadly, using a postal or similar service to carry an article to make it easier to procure the child to engage in sexual activity with either:-

The sender; or
Another person; or
Another person in the presence of the sender or another person.

For the purposes of these offences, a child or ‘young person’ is anyone under the age of 16 years.

The first category of offence is contained in section 471.25(1) of the Criminal Code 1995, which states that a person commits an offence if:-

The person (“the sender”) causes an article to be carried by postal or similar service to the recipient; and
The sender does so with the intention of making it easier to procure the recipient to engage in sexual activity with the sender; and
The recipient is under the age of 16 years, or is believed by the sender to be under the age of 16 years; and
The sender is at least 18 years of age.

The maximum penalty for this offence is 12 years imprisonment.

The second category of offence is contained in section 471.25(2) Criminal Code 1995, which states that a person commits an offence if:-

The person (“the sender”) causes an article to be carried by postal or similar service to the recipient; and
The sender does so with the intention of making it easier to procure the recipient to engage in sexual activity with a person other than the sender (“the participant”); and
The recipient is under the age of 16 years, or is believed by the sender to be under the age of 16 years; and
The participant is at least 18 years of age, or is believed by the sender to be at least 18 years of age.

The maximum penalty for this offence is 12 years imprisonment.

It is a defence to this offence if the accused can prove that at the time of causing the article to be carried, they believed that the recipient was at least 16 years old. This defence is contained in section 471.29(1) of the Criminal Code 1995. It is also a defence to this offence if the accused can prove that at the time of causing the article to be carried, they believed the participant was under 18 years of age. This defence is contained in section 471.29(2) of the Criminal Code 1995. In determining whether the accused had the relevant belief, the trier of fact may take into account whether the alleged belief was reasonable in the circumstances. This is specified in section 471.29(3) of the Criminal Code 1995.

The third category of offence is contained in section 471.25(3) Criminal Code 1995, which states that a person commits an offence if:-

The person (“the sender”) causes an article to be carried by postal or similar service to the recipient; and
The sender does so with the intention of making it easier to procure the recipient to engage in sexual activity with someone other than the sender; and
The recipient is under the age of 16 years, or is believed by the sender to be under the age of 16 years; and
The other person referred to in paragraph b) is under the age of 18 years, or is believed by the sender to be under the age of 18 years; and
The sender intends that the sexual activity will take place in the presence of either:
- The sender; or
- A person other than the sender (“the participant”) who is at least 18 years of age, or who the sender believes is at least 18 years of age.

The maximum penalty for this offence is 15 years imprisonment.

For the purpose of all of these offences:-

‘Procure’ includes:-
- Encourage, entice or recruit the person to engage in that activity; or
- Induce the person (whether by threats, promises or otherwise) to engage in that activity.

‘Sexual activity’ means:-
- Sexual intercourse; or
- Any other activity of a sexual or indecent nature (including an indecent assault) that involves the human body, or bodily actions or functions (whether or not that activity involves physical contact between people).

In addition, a person is taken to ‘engage in sexual activity’ if the person is in the presence of another person (including by a means of communication that allows the person to see or hear the other person) while the other person engages in sexual activity.

These definitions are specified in the Dictionary contained in the Criminal Code 1995.

It is important to note that it is irrelevant whether the sexual activity could actually take place. A person can be found guilty of one of these offences even if it is impossible for the sexual activity to take place. This is specified in section 471.28(1) of the Criminal Code 1995.

Further, it is irrelevant whether the recipient is a real or fictitious person. For example, if police set up an operation and pretended to be a child who received the article carried, the sender is still guilty of the offence. This is specified in section 471.28(2) of the Criminal Code 1995.

What Actions Might Constitute Using a Postal Service to Groom Children?

Examples of what would constitute using a postal service to groom children:-

You send a letter by post to a 9 year old girl who lives in the neighbourhood threatening that you are watching her house and if she does not do exactly what you tell her in the future you will hurt her little brother. Your intention is to scare her into complying with whatever you ask of her, ultimately being sexual activities with your own brother in the future. You would be guilty of an offence under section 471.25(2) of the Criminal Code 1995.
You are 19 and your neighbour is just about to turn 16. She works at a pizza shop in town. You use a courier to deliver a sex toy to her work with a letter accompanying it, encouraging her to use it so she can see what it feels like. You hope that she will enjoy it and it will encourage her to want to have sex with you. You would be guilty of an offence under section 471.25(1) of the Criminal Code 1995.

Examples of what would NOT constitute using a postal service to procure children:-

You have been speaking with someone you think is a 15 year old boy in an Internet chat room. You ask for his address and post to him a photo of a female friend of yours who is 17, accompanied by a note suggesting that if he were prepared to let you watch, she would be willing to perform oral sex on him. The boy is fictitious and is actually an undercover police officer, however you are still guilty of an offence under section 471.25(3) of the Criminal Code 1995 as section 471.28(2) of the Criminal Code 1995 provides that it does not matter if the recipient is a fictitious person presented as a real person.

What the Prosecution Must Prove

To convict you of an offence under section 471.25(1) of the Criminal Code 1995, the prosecution must prove each of the following matters beyond a reasonable doubt:

That you caused an article to be carried by postal or similar service to the recipient; and
That you did so with the intention of making it easier to procure the recipient to engage in sexual activity with you; and
That the recipient was under the age of 16 years, or that you believed the recipient was under the age of 16 years; and
That you were at least 18 years of age.

To convict you of an offence under section 471.25(2) of the Criminal Code 1995, the prosecution must prove each of the following matters beyond a reasonable doubt:

That you caused an article to be carried by postal or similar service to the recipient; and
That you did so with the intention of making it easier to procure the recipient to engage in sexual activity with a person other than you (“the participant”); and
That the recipient was under the age of 16 years, or that you believed the recipient was under the age of 16 years; and
That the participant was at least 18 years of age, or that you believed that the participant was at least 18 years of age.

To convict you of an offence under section 471.25(3) of the Criminal Code 1995, the prosecution must prove each of the following matters beyond reasonable doubt:-

That you caused an article to be carried by postal or similar service to the recipient; and
That you did so with the intention of making it easier to procure the recipient to engage in sexual activity with someone other than you; and
That the recipient was under the age of 16 years, or that you believed the recipient was under the age of 16 years; and
That the other person referred to in paragraph b) was under the age of 18 years, or that you believed the other person referred to in paragraph b) was under the age of 18 years; and
That you intended that the sexual activity would take place in the presence of either:
- You; or
- A person other than you (“the participant”) who was at least 18 years of age, or who you believed was at least 18 years of age.

Possible Defences for Using a Postal Service to Groom Children

The common ways to defend a charge under section 471.25(1) of the Criminal Code 1995 are:-

To maintain your innocence if you did not commit the offence; or
To argue that you believed on reasonable grounds that the recipient was at least 16 years of age.

The common ways to defend a charge under section 471.25(2) of the Criminal Code 1995 are:-

To maintain your innocence if you did not commit the offence; or
To argue that you believed on reasonable grounds that the recipient was at least 16 years of age; or
To argue that you believed on reasonable grounds that the participant was under 18 years of age.

The common ways to defend a charge under section 471.25(3) of the Criminal Code 1995 are:-

To maintain your innocence if you did not commit the offence; or
To argue that you believed on reasonable grounds that the recipient was at least 16 years of age; or
To argue that you believed on reasonable grounds that the participant was under 18 years of age.