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The offence of Sexual Act replaced the offence of Act of Indecency in New South Wales on 1 December 2018. A person may still be charged with Act of Indecency if the alleged conduct occurred prior to 1 December 2018.
In NSW it can be an offence to do any sexual act towards a person, even if you do not touch them. It is also an offence to instruct or encourage another person to do so. If the sexual act involves touching or penetration it will amount to a more serious charge which may include, indecent assault, sexual assault or aggravated sexual assault.
A person can be charged if they do an act which is sexual in nature which a reasonable person would consider to be unacceptable conduct or against community standards. They can also be charged if they encourage someone else to do such an act. The offence carries a maximum penalty of two years imprisonment if the victim is under 16 years of age, or 18 months if they are older.
In NSW, a court can impose any of the following penalties for an Act of Indecency Charge.
You can find a brief description of each of these penalties at the bottom of this page.
The offence of Act of Indecency is contained in s 61N of the Crimes Act 1900 (NSW) and states:
Common examples of the offence of Act of Indecency include:
To convict you of the offence of Act of Indecency against a person under 16 years of age, the prosecution must prove each of the following matters beyond reasonable doubt:
To convict you of the offence of Act of Indecency against a person over 16 years of age, the prosecution must prove each of the following matters beyond reasonable doubt:
The most common ways to defend this charge are:
You can also partially defend the charge of Act of Indecency towards a person under 16 years of age by arguing that at the time of the offence the person was over 16 years of age. You are still likely to be charged with the less serious charge of Act of Indecency towards a person over 16 years of age.
The offence of Act of Indecency is a Table 2 offence which means that it will be finalised with in the Local Court unless the prosecutor elects to have it finalised in the District Court.
Home Detention for an Act of Indecency Charge: As a result of amended legislation this penalty was repealed on 24 September 2018 as a standalone order but may be imposed as a condition of an Intensive Corrections Order (ICO). Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring. Read more.
Intensive correction order for an Act of Indecency Charge (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.
Suspended sentence for an Act of Indecency Charge: As a result of amended legislation this penalty was repealed on 24 September 2018. This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.
Community service order for an Act of Indecency Charge (CSO): As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.
Good behaviour bond for an Act of Indecency Charge: As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.
Community Corrections Orders (CCO): A CCO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the Community Corrections Orders (CCO). Additional conditions may be imposed at the discretion of the court, both at the time of sentence and subsequently upon application by a community corrections officer, juvenile justice officer or the offender. Read more.
Fines for an Act of Indecency Charge: When deciding the amount of a fine for this charge the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.
Conditional Release Order (CRO): A CRO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the CRO. Read more.
Section 10 for an Act of Indecency Charge: Avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.
If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.