It is an offence in Queensland to maintain an unlawful sexual relationship with a child (person under 16). The offence is found in section 229B of the Criminal Code Act 1899 (Qld).
It is an extremely serious offence and typically the most serious child sex offence available under Queensland’s criminal laws. The offence captures ongoing sexual encounters between an adult and a child, rather than isolated incidents.
The offence often captures historical offending; it is not unusual to see police charge individuals with maintaining for alleged unlawful relationships from 20 years ago or longer. It is also common for maintaining to be charged as well as any individual instances of rape or indecent treatment which might form part of the maintaining offence.
Given the seriousness and complexity of the offence, it is always appropriate to seek immediate advice and representation, especially before participating in a police interview.
Important things to know about this offence
Police occasionally refuse bail for maintaining offences, meaning an application for bail must be made to the court. Bail conditions usually involve having no-contact with the complainant and any witnesses identified by the prosecution. Where the witnesses are immediate members of the family, this effectively involves a defendant being ousted from their home. A defendant can apply have the conditions of their bail varied by the court.
A common investigation technique is for police to conduct a ‘pre-text call’. This is where police arrange for the complainant (alleged victim) to call the defendant. The call is covertly recorded, in the hope that the defendant makes confessions to the offending.
Unique to child sex offences in Queensland, police are allowed to obtain statements from any other persons the complainant disclosed the alleged offending to. These are referred to as ‘preliminary complaint’ witnesses. Consistent versions to witnesses can bolster a complainant’s credibility and vice versa if they are inconsistent.
The offence requires a Crown Law Officer’s consent to be charged. This means that persons are not usually charged with maintaining at first instance, as police do not have authority to charge maintaining. The original charges are usually upgraded to maintaining once the Office of the Director of Public Prosecutions (DPP) take carriage of the prosecution.
What do the prosecution have to prove?
For the charge to be made out, the prosecution must prove the following ‘beyond a reasonable doubt’:
- An adult (meaning a person aged 18 or older; and
- Maintains an unlawful sexual relationship (meaning more than 1 unlawful sexual act);
- With a child under the age of 16
It is important to note the unlawful sexual acts do not need to be tied to a precise time. This is undoubtedly to recognise that such particular details might be expected to be forgotten after the passing of time.
Further, the sexual acts do not need to be rape (involving penetration). A common unlawful sexual act would be indecent treatment of a child, which accounts for virtually any sexualised act.
In terms of defending the charge at a trial, the most common strategy or ‘case theory’ for the defence is to persuade the jury that the alleged acts did not occur at all. This type of strategy would usually involve highlighting inconsistencies or implausibilities in a complainant’s versions and motive to lie.
What are the usual penalties?
Maintaining carries a maximum penalty of life imprisonment. As with any child sex offence in Queensland, a person who is convicted of the offence or pleads guilty must be required to serve actual time in jail unless exceptional circumstances can be demonstrated. In extremely rare circumstances, some offenders have avoided actual custody for maintaining, however this is usually for young adults who carry on a consensual relationship with a teenager.
It is not uncommon for offenders to be sentenced to periods of imprisonment well in excess of 10 years, requiring at least 80% to be served under the serious violent offence (SVO) scheme.
What negotiations can be made?
Due to the nature and seriousness of the offence, there is limited scope to negotiate with the prosecution about maintaining offences. Negotiations, however, might be aimed at replacing maintaining charges with offences to cover isolated incidents. Factual negotiations can also be made, addressing things such as duration, age and the nature of the conduct involved.
What Courts can the offence be heard in?
An offence of maintaining must be heard on indictment, in the District Court. Consequently, trials are heard before a jury.