208PIncreased penalty for aggravated offence

208P Increased penalty for aggravated offence (1) The following are circumstances of aggravation for an offence committed against this Part, and a maximum penalty specified in this Part for an aggravated offence applies if a circumstance of aggravation applies to the offence: (a) the offence was committed during torture; Criminal Code Act 1983 204 (b) the offence was committed by the use or threatened use of an offensive weapon; (c) the offence was committed by a person in the company of another person; (d) the offence was committed in circumstances that involved the victim being caused serious harm or being threatened with serious harm or death; (e) the offence was committed against a child under 16 years of age, except in the case of an offence against Division 3; (f) the offence was committed against a person in abuse of a position of trust, except in the case of an offence against Division 4 or 5; (g) the offence was committed against a person in abuse of a position of authority, except in the case of an offence against Division 4. (2) For subsection (1)(a), the offence was committed during torture if the person who committed it deliberately and systematically, over a period, inflicted severe pain on the person against whom it was 208PA Procedural and evidentiary provisions for aggravated offences (1) If the prosecution intends to prove an aggravated offence, the relevant circumstance of aggravation must be contained in the charge. (2) In order to prove an aggravated offence, the prosecution must prove that the person who committed the offence was reckless in relation to the circumstance of aggravation. 208PB Jury directions on consent (1) In a proceeding for an offence against this Part, the Judge must, in an appropriate case, direct the jury that a person must not be regarded as having consented to a particular sexual act merely because: (a) the person did not say or do anything to indicate that the person did not consent; or (b) the person did not protest or physically resist; or (c) the person did not sustain physical injury; or Criminal Code Act 1983 205 (d) during the period or on the occasion when the sexual act occurred, or on an earlier occasion, the person consented to engage in a sexual act (whether or not of the same type) with the person charged with the offence or with another person. (2) In a proceeding for an offence against this Part, the Judge must, in an appropriate case, direct the jury that, in deciding whether the accused was under a mistaken belief that a person consented to a sexual act, the jury may consider whether the mistaken belief was reasonable in the circumstances. Note for section 208PB The Sexual Offences (Evidence and Procedure) Act 1983 contains further provisions about evidence and procedure for offences against this Part. 208PC Exception – medical, hygienic, veterinary or agricultural procedures Part in relation to any sexual intercourse, touching or other act done in the course of a procedure carried out in good faith for medical, hygienic, veterinary or agricultural purposes. 208PD Alternative verdicts (1) In a proceeding against a person charged with an offence against this Part (the prosecuted offence), the trier of fact may find the person not guilty of the prosecuted offence but guilty of another offence, or an attempt to commit another offence, against this Part (the alternative offence) if the trier of fact: committed the prosecuted offence; and committed the alternative offence. (2) Subsection (1) does not authorise the trier of fact to find a person guilty of an alternative offence for which the maximum penalty is greater than the maximum penalty for the prosecuted offence. 208PE Indecent images and related articles may be destroyed (1) If any of the following things are seized by a police officer, a police officer of a senior rank may authorise the forfeiture and destruction by a police officer of the thing: (a) an indecent image of a child; (b) an article that contains an indecent image of a child; Criminal Code Act 1983 206 (c) an article that a police officer of a senior rank believes on reasonable grounds contains an indecent image of a child. (2) Subsection (1) has effect whether or not a person is charged, or is to be charged, with an offence in relation to the thing. (3) The thing may be destroyed at the place at which it was forfeited or at any other place that a police officer of a senior rank thinks fit. (4) If the operation of this section would, apart from this subsection, result in an acquisition of property from a person otherwise than on just terms: (a) the person is entitled to receive from the Territory the compensation necessary to ensure the acquisition is on just terms; and (b) a court of competent jurisdiction may decide the amount of compensation or make the orders it considers necessary to ensure the acquisition is on just terms. 208PF Article containing indecent images may be returned (1) If an article that contains, or is believed to contain, an indecent image of a child is forfeited by a police officer under section 208PE, a police officer of a senior rank may authorise a police officer to return the article to the owner of the article. (2) The authorisation must not be given unless the police officer of a senior rank is satisfied that all indecent images of children are removed from the article.