The phrase 'not more than two years older' in s 45(4)(b) of the Crimes Act 1958 (Vic) refers to a precise chronological difference of 24 months, not a difference measured in whole years at last birthday. The defence of consent to sexual penetration of a child under 16 is therefore unavailable where the accused's age exceeds the child's by any amount greater than exactly two years. Certification of interlocutory appeals under s 295 of the Criminal Procedure Act 2009 should not be granted where no trial is at risk and the only proceeding that might be rendered unnecessary is a plea in mitigation.
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