Aggravated Indecent Assault
Aggravated indecent assault is an offence under section 61M of the Crimes Act 1900 (NSW). The maximum penalties are as follows:
- Imprisonment for 10 years if the victim is under the 16 years.
- Imprisonment for 7 years if the victim is 16 years of age or older.
- Standard non-parole period: imprisonment for 5 years.
- When dealt with in the Local Court, rather than the District Court, the maximum penalty us imprisonment for 2 years.
WHAT THE PROSECUTION MUST PROVE
To prove an aggravated indecent assault, the prosecution must show beyond reasonable doubt that:
- A person committed an assault on another person;
- The assault occurred in circumstances of aggravation;
- Immediately before or immediately after the assault there was an act of indecency; and
- The person did not consent to the act.
What is an assault?
An assault is any act which intentionally or recklessly causes another person to fear immediate and unlawful violence. It is not necessary that the complainant be physically touched.
What are “circumstances of aggravation”?
Circumstances of aggravation are circumstances in which:
- The alleged offender is 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 an “act of indecency”?
An indecent act is one which right minded persons would consider to be contrary to community standards of decency. The assault and the act of indecency do not need to be separate acts.
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 constitutes “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
- A severe mental illness
- A brain injury
That results in the person requiring supervision or social habilitation in connection with daily life activities.
You may have a defence if:
- You did not assault the person;
- You did not commit an indecent 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. There is also a standard non-parole period of 5 years prescribed for this offence. Accordingly, this is a serious offence and upon conviction it is likely that the judge or magistrate would impose a sentence of imprisonment. In an appropriate case a lesser sentence may be considered.
The sentencing magistrate or judge will consider 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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