In NSW Indecent Assault is an offence under section 66L of the Crimes Act. It carries a maximum penalty of 5 years imprisonment.
Section 66M creates an aggravated form of the offence which carries a maximum penalty of 7 years imprisonment.
In December of 2018 the offence was repealed and replaced with the offence of sexual touching. If the alleged indecent assault took place before 1 December 2018 you will still be charged under this section.
What constitutes indecent assault?
An indecent assault is any assault that either involves an act of indecency or is immediately preceded or followed by an act of indecency.
For an act to be considered indecent it must have a sexual connotation. It will have that connotation where the touching is of a portion of the complainant’s body, or by use of part of the assailant’s body, which gives rise to that connotation.
If the act would not ordinarily give rise to a sexual connotation, it must be shown that the accused’s conduct was accompanied by an intention to obtain sexual gratification. An example of this would be where a person gains sexual gratification from touching feet.
What the Police Must prove
- That you assaulted the victim and
- that the assault was indecent or
- or that immediately before or immediately after that assault you committed an act of indecency on/in the presence of the victim
- that the assault was without consent and
- that you knew the victim was not consenting or was reckless as to if the accused was consenting
In addition if you are charged with an aggravated form of the offence one of the following must be proved:
- the offence was committed in company
- the victim is under the age of 16 years
- the victim is under the offender’s authority
- the victim has a serious physical disability, or
- the victim has a serious intellectual disability.
Possible defences for indecent assault
Self Defence
Self-Defence is a complete defence, meaning if it is made out you will be found not guilty. Self-defence is set out in section 418 of the NSW Crimes act.
When a person charged with a personal violence offence claims self-defence the court has to ask itself two questions:
- Did you have a reasonable fear of an imminent attack?
- Was your response reasonable to the threat as you perceived it?
The first question is a basic one. Did you as the defendant, reasonable fear or apprehend that you would be physically attacked?
Where an assault is already taking place against you, this question will always be answered in the affirmative. The question also considers situations where an attack hasn’t taken place yet but you fear that one is imminent. In other words, a preemptive strike is capable of being an act of self-defence.
The question is always asked from view of you as the defendant. The question is if YOU believed that you were at risk of being physically attacked. This means all that needs to be shown to the court is that you, as the defendant, held this fear. It is not viewed from the lens of an outside person assessing the situation.
The second question is a touch more complex.
For the second question to be answered in the affirmative it must be shown that your response was a reasonable one for what you perceived the threat to be. This question is not wholly answered from you, the defendant’s point of view. The question is asked to a hypothetical third person and if that person would have responded in the same, or similar matter to how you responded. It is important to understand that this hypothetical third person is responding to the same threat that was perceived by you. This means that if you perceived that your life was in danger, your response will be measured against that threat.
If the court finds that the answer to these two questions is yes, then you will be found not guilty.
Duress
It is a defence to many offences where the offending conduct was done due to Duress. Duress is where an offender is placed in a situation where they have no choice other than to commit an offence due to serious threats to either them or their family.
The defence of duress involves 3 critical elements. A person will not be held criminally responsible for an offence if the offence was committed:
- Because of threats of death or really serious injury to him or herself or to their family, and
- Those threats being of such a nature that a person:
- Of ordinary firmness and strength of will
- Of the same maturity and sex of the accused, and
- In the accused’s position,
- Would have given in to the threats and committed the offence
Element 1:
When looking at the first element, the question is whether a threat was made, and if so, what led the accused to believe the threat would be carried out. These threats may be made expressly or impliedly. It does not matter if there is no real threat to the person or family. What matters is whether the person held a genuine belief that there is an imminent threat of death or serious injury to his or her self or family if he or she did not do what was demanded of them.
Element 2:
The second element is an assessment of the circumstances surrounding the threats. When considering this element the court will have regard to, among others, the nature of the threat, the person making the threat, the accused’s knowledge of the person making the threat and all circumstances which may affect a reasonable person’s reaction to the threats.
Essentially the test for this second element is if you place an ordinary and reasonable person of the same maturity and sex of the accused in the exact same set of circumstances posed to the accused, would that reasonable person succumb to those threats and commit the offence.
Element 3
When assessing the third element, the question is whether there are any other alternatives other than committing the offence. A person will not be able to raise the defence of duress even if they held a reasonable belief that the threats would be carried out if he or she could have avoided the threats by alternative means other than committing the offence.
If the prosecution disproves any of the three elements listed above then that the defence will not be made out. If they are unable to disprove any of the elements then offender should be found not guilty.
Consent
In matters involving unlawful contact including sexual offences it will be a defence where the other party has consented to the contact.
Consent is extensively defined under section 61HE of the Crimes Act 1900. Consent is given when a person willingly, freely and voluntarily consents to sexual activity. Consent does not have to be given verbally, it can also be expressed through actions. Similarly a complainant does not have to verbally state that they do not consent. Consent by persuasion is still considered as consent as long as it’s given voluntarily.
For the accused to be found guilty of the offence they have to have knowledge that there is no consent. The accused knows that the complainant does not consent to the sexual activity if they:
- Knew that the complainant did not consent to the sexual activity, or
- Were reckless as to whether the complainant consented to the alleged sexual activity, or
- Had no reasonable grounds for belief that the complainant consented to sexual activity.
It is a defence if the accused had a reasonable belief that the complainant had consented to the sexual activity.
This question goes to the accused’s state of mind at the time of the offence. If the court when looking at all the evidence concludes that the accused reasonably and genuinely, although wrongly, held the belief that there was consent then the accused cannot be found guilty of the offence
Penalties for indecent assault in NSW
Indecent assaults are serious offences in NSW and depending on the circumstances can result in severe penalties. Most commonly first offenders are dealt with by way of a good behaviour order in the form of a Conditional Release Order or Community Corrections Order
The Court may also impose any of the following conditions:
Conditional Release Order
Conditional Release Orders (CRO) are often used to deal with first time offenders and less serious offences where the offender is unlikely to present a risk to the community.
A CRO is an order of the court that you are to be of good behaviour (not commit any other offences) for a specific period of time.
CROs can include conditions such as drug and alcohol abstention, requirements to attend programs, non-association requirements or place restrictions where appropriate. CROs can also have a supervision condition. Courts have discretion to not impose a conviction on a CRO, if they consider it appropriate. CROs can be for a maximum period of 2 years.
The CRO acts as a warning and provides the option to divert less serious offenders out of the criminal justice system, freeing up resources to deal with the offenders who cause the greatest concern to the community. If an offender commits any further offences while on a CRO, subsequent penalties may be more severe.
Community Corrections Order
Community Correction Order’s (CCO) are used to punish offenders for offences that do not warrant imprisonment or an Intensive Corrections Order, but are too serious to be dealt with by a fine or lower level penalty.
CCO’s are a flexible sentence that the court can tailor to reflect the nature of the offender and the offence. The court can select from the range of conditions, such as supervision by Community Corrections Officers, community service work (up to 500 hours) and curfews, to hold offenders to account and reduce their risk of reoffending. CCOs can be imposed for a period of up to three years.
Intensive Corrections Order
An Intensive Corrections Order (ICO) is a custodial sentence that the court decides can be served in the community. Community safety is the court’s paramount consideration when making this decision. ICO’s can be for a maximum of 2 years for single offences and up to 3 years where there are multiple offences.
Supervision is a mandatory condition of an ICO. Further the Courts must impose at least one additional condition. Conditions that can be included in an ICO are: home detention, electronic monitoring, curfews, community service work (up to 750 hours), alcohol/drug bans, place restrictions, or non-association requirements. Offenders may also be required to participate in programs that target the causes of their behaviour.
The ICO is the most serious sentence that an offender can serve in the community. ICOs are not be available for offenders who have been convicted of murder, manslaughter, sexual assault, any sexual offence against a child, offences involving discharge of a firearm, terrorism offences, breaches of serious crime prevention orders, or breaches of public safety orders.
A person convicted of a domestic violence offence can only be sentenced to an ICO if the court is satisfied that the victim or likely co-residents can be adequately protected. For example, a domestic violence offender is not eligible for an ICO with a home detention condition if they are intending to reside with the victim.
Full Time imprisonment
Full Time imprisonment is the most serious penalty a court can impose. The sentence involves a period of time that will be spent inside an NSW correctional centre. When imposing a full time custodial sentence in most circumstances the court will apply a Non-Parole period, this is the minimum time that must be spent in a correctional centre. After the expiration of the Non-Parole period you will be eligible for release with the remainder of the sentence to be spent in the community on parole.
Book a Free Consultation for an indecent assault charge
Indecent assaults are serious offences in NSW and due to what could be an ambiguous act of indecency can be extremely complex. If charged with an offence of Indecent Assault you should seek legal advice at the earliest stage.
If you or anyone you know has been charged with Indecent Assault you should contact First Offence Lawyers for your free no obligation consultation. Remember you can always make First offence Legal your first defence!