Film a person’s private parts – s 91L of the Crimes Act 1900

The maximum penalty for an offence under:

• Section 91L(1) – General offence
  • imprisonment for 2 years or 100 penalty units ($11,000).
• Section 91L(3) – Aggravated offence
  • imprisonment for 5 years.

Please note that these penalties are reserved for the most serious cases only.

This option is recommended only where you accept that:

• You filmed a person’s private parts for the purpose of obtaining or enabling another person to obtain sexual arousal or gratification; and
• filming was done without consent; and
• you knew that the other person did not provide consent; and
• A reasonable person would reasonably expect that a person’s private parts could not be filmed.

For an aggravated offence only:

• Each of the above elements is satisfied; and
• the person filmed is a child under 16; or
• a building has been modified to facilitate this offence.

A plea of guilty at the first available opportunity entitles you to a maximum sentencing discount of 25 per cent. It demonstrates to the court that you have accepted responsibility for your actions.

What possible outcomes exist?

• A fine
  • This may be up to 100 penalty units ($11,000.)
•  A non-conviction via a section 10 – asking the court for leniency
  • Leniency is where the court has found you guilty, but has exercised a discretion not to convict you. Therefore, you will avoid:
    • a fine or a penalty.
    • a conviction.
• Conditional release order “CRO” (with or without conviction)
  • This is usually subject to a period of good behaviour.
  • If an offence is committed during the period of the order, a court may resentence you for the offence committed.
• Community Corrections Orders (“CCO”)
  • A court may exercise this option (when aggravating circumstances Examples of aggravating circumstances include a repeat offence.
  • An example of a CCO is performing service within the community.
• Intensive Corrections Order (“ICO”)
  • This is where a term of imprisonment can be served in the community.
• Full-time imprisonment
  • Served in a correctional facility.

To prove this charge, the Prosecution must establish, beyond a reasonable doubt that:

• you filmed a person’s private parts for the purpose of obtaining or enabling another person to obtain sexual arousal or gratification; and
• filming was done without consent; and
• you knew that the other person did not provide consent; and
• a reasonable person would reasonably expect that a person’s private parts could not be filmed.

For an aggravated offence only:

• each of the above elements is met; and
• the person filmed is a child under 16; or
• a building has been modified to facilitate this offence.

NB: If a person is acquitted of an aggravated offence at trial, a person may be found guilty of the general offence, if the elements of a general offence are satisfied.

If the Prosecution cannot prove all of the above elements beyond reasonable doubt, then the court must find you not guilty.

Defences:

• Sexual gratification or arousal was not the purpose of filming.
  • This line of defence must also negate any possibility that the filming was obtained for the arousal or sexual gratification of another person.
• Consent was given.
  • Note that a person under the age of 16 years cannot legally provide consent.
• There was a genuinely held belief that consent was given.
• A reasonable person would not reasonably expect that their private parts could not be filmed.
• Duress or necessity.
  • Another person threatened or coerced you into filming a person’s private parts.
• Mistaken identity
  • It was not you.