Loitering near Schools

If you have been previously convicted of a ‘relevant offence’, including possession of child pornography or other sexual offences involving a child (e.g. sexual assault of a child), it is considered to be an offence in Victoria to loiter near school premises or other places where children are located.

For example, if you have previously been convicted of possessing child pornography, and are found by Police to be standing outside a Primary School, Childcare, or Dance School you could be charged with the offence of Loitering near a School.[1]

The definition of ‘Children’s service centre’ includes premises which provide either education or other service to a child.[2] ‘Public place’ frequented by children can include a park, playground or church.[3] Whilst there is no specific definition for ‘loitering’ it is generally understood to mean being present at a location and ‘hanging around’.[4]

Elements of the Offence

In order to establish the offence, the Police are required to establish the following elements beyond reasonable doubt:

1. You have previously been found guilty of a relevant offence (which includes a sexual offence);
2. You are found to be loitering at, or near, a place that is a school, children’s service, children’s education centre or other public location where children commonly frequent;
3. You know the place is a school, children’s service, children’s education centre or other public location where children commonly frequent;
4. You have no reasonable excuse; and
5. Children were present at the time you are found to be loitering.[5]

Possible Penalties

The maximum penalty for loitering near a school is 5 years imprisonment. However, a Judge or Magistrate will take into account a variety of considerations (e.g. it is your first offence) prior to making any sentencing determinations, if you are guilty of this offence.

Defences Available for Loitering near Schools

If you have a reasonable excuse for being present at a school or other place where children are, then you may have a defence to your charge.[6]

You may also have a defence if you did not know the premises was a school or similar. For example, you did not know that the premises were a dance school or other children’s service at the time you were found on or near the premises.  You may also have a defence if you were not previously convicted of a ‘relevant’ offence.

You will also have a defence of reasonable mistake or a factual dispute relating to the charge.

If you have been charged with Loitering near Schools, it is imperative that you contact an experienced legal practitioner so that the best defence can be identified for your case.

[1] Crimes Act 1958 (Vic) s 49N.
[2] Children’s Services Act 1996 (Vic) s 3.
[3] Summary Offences Act 1966 (Vic) s 3.
[4] Samuels v Stokes [1973] HCA 62
[5] Crimes Act 1958 (Vic) s 49N.
[6] Crimes Act 1958 (Vic) s 49ZB