Aggravated Indecent Assault

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”.

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 a 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 Authority’ 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.

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.