Criminal Code Act 1995

A person commits an offence against this section if:

the person commits an offence (the underlying offence) against either of the following provisions in relation to another person (the child):

subsection 474.25A(1) (engaging in sexual activity with child using a carriage service);

subsection 474.25A(2) (causing child to engage in sexual activity with another person); and

one or more of the following apply:

the child has a mental impairment at the time the person commits the underlying offence;

the person is in a position of trust or authority in relation to the child, or the child is otherwise under the care, supervision or authority of the person, at the time the person commits the underlying offence;

the child is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity referred to in subsection 474.25A(1) or (2);

the child dies as a result of physical harm suffered in connection with the sexual activity referred to in subsection 474.25A(1) or (2).

To avoid doubt, a person does not commit the offence against subsection 474.25A(1) or (2) for the purposes of paragraph (1)(a) if the person has a defence to that offence.

If, on a trial for an offence (the aggravated offence) against subsection (1), the trier of fact:

is not satisfied that the defendant is guilty of the aggravated offence; but

is satisfied beyond reasonable doubt that he or she is guilty of an offence (the underlying offence) against subsection 474.25A(1) or (2);