Aggravated Indecent Assault Charges
Aggravated Indecent Assault is an extremely serious offence in New South Wales. Severe penalties, apply to the most serious aggravated indecent assault cases. If you are accused or charged with an Agrravated Indecent Assault offence, you must contact George Sten & Co. Our solicitors are experts in the area of aggravated indecent assault offences and can advise you on the prospects of success of your case. Your can contact us on 9261 8640 or email us to arrange an appointment at our Sydney CBD office.
Aggravated Indecent Assault Offence
The offence of aggravated indecent assault lies in s61M of the Crimes Act 1900 (NSW). The charge is set out as follows.
‘Any person who assaults another person in circumstances of aggravation, 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 7 years’ – s61M(1).
There is a further provision, detailing the same circumstance but with the additional issue of the other person being under the age of 16 years. This incurs a ten-year prison sentence.
The section also clarifies the types of behaviour or circumstances which render this an ‘aggravating’ circumstance. Pursuant to s61M(3), this includes circumstances where ‘the alleged offender is in the company of another person or persons’ (s61M(3)(a)), ‘the alleged victim is (whether generally or at the same time of the commission of the offence) under the authority of the alleged offender’ (s61M(3)(c)), ‘the alleged victim has a serious physical disability’ (s61M(3)(d)), or ‘the alleged victim has a cognitive impairment’ (s61M(3)(e)).
There is a noted sexual connotation to the indecency aspect of this offence, and this can relate to touching the alleged victim in a way which can be construed as of a sexual nature. Merely the fact that the provision of s61M is housed in Division 10 – ‘Offences in the nature of rape, offences relating to other acts of sexual assault etc’ gives clout to this construction of the provision. It was stated in R v Harkin (1989) 38 A Crim R 296 that if there is not a clear sexual connotation, it is necessary to look to whether there was the intention to obtain sexual gratification. This depends on the surrounding circumstances, such as words, actions, the nature of the relationship and the nature of the act.
As the provision alludes to the indecent act occurring ‘immediately before or after’, it is acknowledged that there may be a gap between the assault and the indecent act. However, reasonable construction of what amounts the “act” will take place. Determining the parameters of these factors and their relationship to each other in falling under a composite aggravated indecent assault charge is dependent on the circumstances of the incident. Furthermore, it is worth noting the element requiring that the act could be ‘in the presence of another person’ is typically taken to mean within eyesight of.
Assault is taken to refer to an intentional or reckless causing of another person to fear unlawful and immediate violence. It may not be necessary for there to be physical touch, as just the threat or apprehension is commonly held to be enough in NSW law. ‘Indecent’ refers to being contrary to ordinary standards, typically measured against what the community would find acceptable – akin to the ‘reasonableness’ test that usually prevails in criminal law.
‘Cognitive impairment’ is further defined in s61H as ‘an intellectual disability’ (s61H(1A)(a)), ‘a developmental disorder (including an autistic spectrum disorder)’ (s61H(1A)(b)), ‘a neurological disorder’ (s61H(1A)(c)), ‘dementia’ (s61H(1a)(d)), ‘a severe mental illness’ (s61H(1A)(e)), or ‘a brain injury’ (s61H(1A)(f)). Furthermore, the person requires ‘supervision or social habitation in connection with daily life activities’ (s61H(1A)).
The Act also defines what it means for a person to be ‘under the authority’ of someone else, stating that this means ‘the person is in the care, or under the supervisions or authority, of another person’ (s61H(2)).
In accordance with s61L, indecent assault incurs a five-year imprisonment period, meaning that the aggravated element adds an additional two years to the penalty. There is a potential for lesser penalties to also be imposed, with good behaviour bonds, home detention or community service also possible if the court find it appropriate. This will depend on the circumstances of the case. Also, depending on where the matter is heard, it is possible that the maximum penalty could be further reduced. For example, in the Local Court this could be a two-year imprisonment period. Again, this depends on the circumstances of the charge and the case.
Types of evidence that may be involved in proceedings include the evidence from the victim, potentially including statements they may have made to others after the assault, and documentation from suspect interviews.
Defending the charge could involve a lack of witnesses or appropriate evidence, identification issues and disputed DNA or medical evidence. This will depend on the case mounted by the prosecution and the evidence that has been collated to prove the charge.
If you have reason to believe that you may be charged with an offence related to aggravated indecent assault, or you have already been charged, contact one of our Criminal Lawyers. Based in Sydney, our legal team will protect your reputation and work to clear your name. We can provide expert advice to ensure that the matter is dealt with quickly and thoroughly.
Call our CBD Office today. 02 9261 8640