Aggravated Act of Indecency

Aggravated Act of Indecency carries the following maximum penalties:

• 5 years imprisonment if the complainant is under the age of 16 years 
• 3 years imprisonment if the complainant is over the age of 16 years old. 

What is Aggravated Act of Indecency?

Aggravated Act of Indecency was contained under section 61O of the Crimes Act 1900 (NSW) and stated:

(1)  Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, in either case in circumstances of aggravation, is liable to imprisonment for 5 years.

(1A) Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, in either case in circumstances of aggravation, is liable to imprisonment for 3 years.

(3)  For the purposes subsections (1) and (1A), circumstances of aggravation means circumstances in which:

(a)  the alleged offender is in the company of another person or persons, or

(b)  the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or

(c)  the alleged victim has a serious physical disability, or

(d)  the alleged victim has a cognitive impairment.

Meaning, it is an offence to commit an indecent act to any person who is under the age of 16 or to encourage another person to commit an indecent act to any person who is under the age of 16 under the circumstances of aggravation such as if the complainant is physically disabled or if the complainant is under your authority (ie, you are a step parent, or a teacher). Similarly, it is an offence to commit an indecent act to someone who is over the age of 16 or to encourage another person to commit an indecent act to someone who is over the age of 16 if aggravating circumstances are present.

Aggravated Act of Indecency is a historical offence and is something that you can still be charged with if the offence occurred before 1 December 2018. 

The following acts constitute Aggravating Act of Indecency:

• Exposing your genitals to someone in the room with a third person, without their consent.
• Sending a naked photo of yourself to someone with a cognitive impairment.

What Must be Proven?

For a person to be found guilty of Aggravated Act of Indecency, the Prosecution must prove each of the following matters beyond a reasonable doubt:

• That you committed an act of indecency on or towards the complainant, or incited another person to do the same, and
• That the act was without the complainant’s consent 
• That you knew the complainant was not consenting or you were reckless as to whether or not the complainant was consenting; and 
• At least one circumstance of aggravation existed.

If the Prosecution does not prove every single one of the above elements, you will be found not guilty. 

Which Court Will Hear the Matter?

This offence is a Table 2 offence, which means that it will be dealt with in the Local Court unless the Prosecution elects to have the matter dealt with in the District Court.

Possible defences to Aggravated Act of Indecency

The following defences may be available for an Aggravated Act of Indecency charge:

• That the act was not indecent.
• That the act was not done towards or directed at another person.
• That the act was not done under any circumstance of aggravation.
• The complainant gave legal consent.
• Duress.

Common Questions about Aggravated Act of Indecency

Will I receive a criminal conviction?

A conviction and criminal record for this offence is likely.

In NSW, a Court can impose any of the following penalties for an Aggravated Act of Indecency charge:

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10 

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for an Act of Indecency charge might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover, a conviction for an offence of Indecency can rule out certain career paths.

Will I go to Gaol for an Act of Indecency charge?

It is possible to receive an imprisonment sentence for this charge, so it is important that you obtain legal advice. 

What if the other person gave consent?

Consent is a very complicated legal term which can be read about further using this link [INSERT].

Will I end up on the sex offender register?

If the complainant in your matter was under the age of 18 years, it is probable that you will be on the sex offender register.  

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.