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Aggravated Act of Indecency

Streeton Criminal Lawyers Sydney

THE OFFENCE

An aggravated act of indecency is an offence under section 61O(1) and (1A) of the Crimes Act 1900 (NSW). The maximum penalty where the victim is under 16 years of age is imprisonment for 5 years. The maximum penalty where the victim is 16 years of age or older is imprisonment for 3 years.

The charge will be dealt with in the Local Court unless the prosecutor elects to deal with the charge in the District Court. If the charge is dealt with by a magistrate in the Local Court the maximum penalty is imprisonment for 2 years and/or a fine of $5,500.

WHAT THE PROSECUTION MUST PROVE

To prove an act of indecency, the prosecution must show beyond reasonable doubt that:

  • A person committed an act;
  • That act was indecent;
  • The act was done towards another person;
  • That person did not consent to the act; and
  • The act was committed in circumstances of aggravation.

For the offence to be proved it does not require that the accused be in the immediate physical presence of the victim: R v Barrass [2005] NSWCCA 131.

What constitutes an “act of indecency”?

An indecent act is one which right minded persons would consider to be contrary to community standards of decency. The surrounding circumstances of the act may be considered by the court: Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241.

What are “circumstances of aggravation”?

The Crimes Act provides that the following are circumstances of aggravation:

  • The alleged offender was in the company of another person or persons
  • The alleged victim is under the authority of the alleged offender
  • The alleged victim has a serious physical disability
  • The alleged victim has a cognitive impairment

What is a “person in authority”?

The Crimes Act provides that a person is “under the authority of another person” if the person is in the care, or under the supervision or authority, of the other person.

What is “cognitive impairment”?

The Crimes Act provides that a person has a “cognitive impairment” if the person has:

  • An intellectual disability
  • A developmental disorder
  • A neurological disorder
  • Dementia
  • A severe mental illness
  • A brain injury

That results in the person requiring supervision or social habilitation in connection with daily life activities.

DEFENCES

You may have a defence if:

  • You did not commit the act;
  • The act was not indecent;
  • The act was not done towards another person;
  • The act was not committed in circumstances of aggravation.

WILL I GO TO JAIL?

Upon conviction, a person is liable to a penalty of imprisonment. Whether or not you receive a full time jail sentence will depend on the objective seriousness of the offence, whether you pleaded guilty to the offence, whether you have prior convictions, your subjective circumstances such as employment and health and whether remorse has been shown.

For the full range of penalties that can be imposed, see our Sentencing Options page.

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