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The offence of Sexual Touching replaced Indecent Assault in New South Wales on 1 December 2018. A person may still be charged with Indecent Assault if the alleged conduct occurred prior to 1 December 2018.
In NSW, a court can impose any of the following penalties for a Indecent Assault charge.
You'll find a brief description of each of these penalties at the bottom of this page.
This offence is defined in section 61L of the Crimes Act 1900 (NSW), which states that:
Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years.
The essential elements that the Crown (Police) has to prove are:
The Police must prove every one of these elements. You can only find [the accused] guilty if the Police/Crown proves each of these matters beyond reasonable doubt.
Here the Crown (Police) must prove beyond reasonable doubt that the accused by his/her act assaulted the complainant.
An assault means any deliberate act of sexual nature with, or towards, another person that falls short of touching or penetration. It is an act which the reasonable person would consider to be contrary to community standards of decency.
The slightest touch/physical contact (however minimal) is sufficient to amount to an assault and it does not have to be a hostile or aggressive act, or one that caused the complainant fear or pain.
Examples include exposing one’s self or masturbating in front of another person.
The Crown (Police) must prove beyond reasonable doubt that the assault was indecent. For an assault to be “indecent” it must have a sexual connotation.
The word "indecent" means contrary to the ordinary standards of respectable people in the community.
If the accused touches the complainant’s body or uses his/her body to touch the complainant in a way which clearly gives rise to a sexual connotation, this is sufficient to establish that the assault was indecent.
For example, touching the genitals or anus of a male or the genitals or breast of a female.
However, if the assault does not carry a clear sexual connotation, the Crown must show that the accused’s conduct was accompanied by an intention to obtain sexual gratification. That is, the conduct went hand in hand with the intention to obtain sexual gratification.
In deciding whether the Crown has proved this element, all the surrounding circumstances including the accused’ words and/or actions, the respective ages of the accused and the complainant, any relationship which may have existed between them and the nature of the act relied upon, is all taken into consideration.
[Note: Consent is not a defence when the complainant is a child under 16 years]
In order to establish that the touching was without consent and therefore an assault, the Crown (Police) must prove beyond reasonable doubt that the accused touched the complainant without his/her consent knowing that he/she was not consenting.
Consent involves the conscious and voluntary permission by the complainant to the accused to touch the complainant’s body in the manner that he/she did.
Consent or the absence of consent can be communicated by the words or even acts of the complainant.
The Crown (Police) must also prove beyond reasonable doubt that the accused knew the complainant was not consenting. Here, consideration is placed on the actual state of mind of the accused at the time of the act.
This element requires one to look at what was going on in the mind of the accused. And in deciding this issue you can have regard to all the surrounding circumstances.
The fourth element is also satisfied if the Crown proves that the accused realised that there was a possibility that the complainant was not consenting to the act, but he/she went ahead anyway.
The Crown can also prove this fourth element if it proves beyond reasonable doubt that the accused didn’t even think about whether he/she was consenting to the act or not, treating the question of whether he/she was not consenting as irrelevant.
If however the accused honestly, though wrongly, believed the complainant was consenting to the act, then he/she is not guilty.
This is because if that was the position, the Crown cannot prove the fourth element.
This charge is a Table 2 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.
Home Detention for an 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 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 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 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 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 Indecent Assault 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 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.
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.