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Aggravated Indecent assault


Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

The offence of Aggravated Sexual Touching replaced Aggravated Indecent Assault in New South Wales on 1 December 2018. A person may still be charged with Aggravated Indecent Assault if the alleged conduct occurred prior to 1 December 2018.

In NSW, it is an offence to assault another person and, at the time of, or immediately before or after, the assault, commit an act of indecency on or in the presence of the other person. The offence is known as ‘Indecent Assault’. It is a more serious offence if you commit the offence in circumstance of aggravation. This offence is known as “Aggravated Indecent Assault”.

In NSW, a court can impose any of the following penalties for Aggravated Indecent Assault.

You can find a brief description of each of these penalties at the bottom of this page.



THE OFFENCE OF AGGRAVATED INDECENT ASSAULT:

The legislation describes the offence of ‘Aggravated Indecent assault’ in section 61M(1) and section 61M(2) of the Crimes Act 1900 (NSW).

Aggravated Indecent Assault is defined in section 61M(1) as follows:

A person can be charged with Aggravated Indecent Assault if they assault another person, in circumstances of aggravation, which includes an act of indecency at the time of, immediately before or immediately after the assault. The maximum penalty is 7 years imprisonment.

Section 61M(2) defines the maximum penalty if the Aggravated Indecent Assault is committed on or in the presence of a person under the age of 16 years:

A person can be charged with Aggravated Indecent Assault if they assault another person, in circumstances of aggravation, which includes an act of indecency at the time of, immediately before or immediately after the assault. If the other person is under the age of 16 years, the maximum penalty is 10 years.

WHAT DOES 'ASSAULT' MEAN?

An assault is any act where there is either physical contact, or a threat to the victim involving a reasonable fear of unlawful physical violence. This act needs to be intentional or reckless.

WHAT DOES THE ACT OF 'INDECENCY' MEAN?

An indecent act is one which is contrary to community standards of decency. The act must have a sexual connotation.

WHAT ACTIONS MIGHT CONSTITUTE AGGRAVATED INDECENT ASSAULT?

Police can charge you with an offence under this section if you commit the offence of indecent assault in circumstances of aggravation.

Our web page on indecent assault (link to Indecent Assault - https://www.armstronglegal.com.au/criminal-law/offences/sexual/indecent-assault) provides commentary and examples of actions that might constitute indecent assault. That commentary is directly applicable to this charge.

Subsection (3) provides an exhaustive list of circumstances of aggravation, which are:

  • If you commit the offence in the company of another person or persons;
  • If the alleged victim was under your authority;
  • If the alleged victim has a serious physical disability; or
  • If the alleged victim has a cognitive impairment.

Subsection (2) increases the maximum penalty to that of ten years imprisonment if the indecent assault is committed against a victim who is under 16 years of age.

WHAT THE POLICE MUST PROVE:

To convict you of Aggravated Indecent Assault the prosecution must prove at least one of the following matters beyond reasonable doubt:

  • The alleged offender is in the company of another person or persons; or
  • The victim is under the age of 16 years; or
  • The alleged victim is under the authority of the alleged offender; or
  • The alleged victim has a serious physical disability; or
  • The alleged victim has a cognitive impairment.

WHAT DOES 'IN COMPANY OF ANOTHER PERSON OR PERSONS' MEAN?

This is where the accused person commits the offence in the company of another person, and further that one of the following elements are present:

  • They share the same purpose to indecently assault the alleged victim; or
  • Participation in common purpose even if the other person is not physically present. For example, being look out or previously encouraging the offender to commit the offence.

WHAT DOES 'PERSON IN AUTHORY' MEAN?

A person is “under the authority of another person” if they were under the care, supervision or authority, of the other person.

WHAT DOES 'COGNITIVE IMPAIRMENT' MEAN?

The Crimes Act defines Cognitive Impairment as one of the following:

  • An intellectual disability; or
  • A developmental disorder (including an autistic spectrum disorder); or
  • A neurological disorder; or
  • Dementia; or
  • A severe mental illness; or
  • A brain injury.

POSSIBLE DEFENECS FOR INDECENT ASSAULT:

Possible ways to defend a charge of Indecent Assault include but are not limited to:

  • Denying that the Indecent Assault occurred.

WHICH COURT WILL HEAR YOUR MATTER?

This charge is a Table 1 offence which means that the DPP can elect to have the matter dealt with in the District Court, however if no election is made, it will be heard by a Police Prosecutor in the Local Court.



Types of penalties:

Jail for an Aggravated Indecent Assault charge: This is the most serious penalty for this charge and involves full time detention in a correctional facility. Read more.

Home Detention for an Aggravated Indecent Assault 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 Aggravated Indecent Assault 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 Aggravated Indecent Assault 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 Aggravated Indecent Assault 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 Aggravated Indecent Assault 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 Aggravated Indecent Assault charge: When deciding the amount of a fine for a this charge the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Section 10A: A section 10A is a conviction, with no other penalty attached to it. 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 Aggravated Indecent Assault 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.


where to next?

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.

Why Choose Armstrong Legal?

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