INDECENT ASSAULT

By David Philippe @ Sydney Criminal Defence Lawyers

The offence of indecent assault is embodied in section 61L of the Crimes Act 1900 (NSW), which provides:

Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency or in the presence of the other person, is liable to imprisonment for 5 years.

An indecent assault charge is a Table 2 offence whereby the Prosecution can elect to have the matter heard in either the District or Local Court.

1. ELEMENTS OF AN INDECENT ASSAULT CHARGE

To successfully prove a charge of indecent assault, the Crown must successfully establish beyond reasonable doubt the following elements:

1. You “assaulted” the Complainant

To constitute an indecent assault, there must first be an assault. The Crown may satisfy this element by providing evidence that you intentionally or recklessly applied physical contact against the Complainant’s person or voluntarily caused the Complainant to fear imminent and unlawful physical harm. Striking, kicking or hitting a person with the intention of causing fear are examples of acts that constitute an assault.

Mere inactivity by a person cannot however constitute an assault. For example, if you invite a child to touch your genital area, an indecent assault is not committed (see Director of Public Prosecutions v Rogers [1953] 2 All ER 644). In such cases, you may be convicted of being a party to an act of indecency with a young person under sections 61N and 61O of the Crimes Act 1900 (NSW).

2. The assault was “Indecent” and was committed on or in the presence of the Complainant

In order for an assault to be classified as “indecent”, the Crown must prove the existence of a sexual connotation or an intention to obtain sexual gratification. A sexual connotation may involve the Defendant using his/her body for sexual gratification or touching or threatening to touch a part of the complainant’s body. For example, kissing a girl against her will (accompanied by an indecent suggestion), touching a female’s breasts or the genitals of a male are enough to give rise to an indecent assault charge. The significance of these examples is that they indicate that the same act can amount to both an assault and an act of indecency.

In determining whether the assault was ‘indecent’, the Court will consider the act in accordance with the ordinary standards of mortality of ‘respectable people’ within the community rather than simply the standards of an ‘ordinary person’. Moreover, the Court must also be informed of considerable objective and subjective circumstances, which include:  the defendant’s words or conduct, the ages of the accused and the victim, the existence of a relationship, and the nature of the act relied upon.

The requirement that the indecent act be committed on or in the presence of the complainant has been interpreted by the Court of Criminal Appeal to include (but not limited to) cases where the complainant was asleep, did not see the act and was unaware of it (R v AWL [2003] SASC 416).

3. The assault was without the alleged victim’s consent

The statutory definition of consent provided in section 61HA of the Crimes Act 1900 (NSW) does not extend to the offence of indecent assault. The Prosecution must prove that you touched or threatened the complainant without his/her conscious and voluntary permission. Consent can be communicated through conduct or words. It is important to note that notwithstanding a child’s acquiescence in the actions of the accused, consent is not a defence when the child is under 16 years.

4. You knew or were recklessly indifferent to the possibility that the Complainant was not consenting

This element is concerned with the Defendant’s state of mind at the time of the assault (and not that of a reasonable person) and will involve an analysis of the surrounding circumstances.

The Crown can prove this element in the following two ways:

1. You had actual knowledge or were aware of the possibility that the Complainant was not providing his/her voluntary and conscious consent; or
2. You were reckless and did not appreciate the risk that the Complainant was not consenting to the indecent assault.

Enough doubt can be raised if you honestly, though wrongly believed that the Complainant was consenting. However, self-induced intoxication at the time of the relevant conduct cannot be considered, as an indecent assault charge is not an offence of specific intent.

1. PENALTIES

If you are convicted of indecent assault, the penalties that a Magistrate or Judge can impose include: –

• A maximum fine of $5,500.00 and or a maximum term of imprisonment of up to 2 years if the matter is heard in the Local Court; or A maximum of up to 5 years imprisonment if heard in the District Court.
• Suspended Sentence: A suspended sentence under section 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSPA’) involves the imposition of a custodial sentence (being not more than 2 years) on the condition that you are subject to a good behaviour bond.
• Community Service: The Court may make a community service order under section 8(1) of the CSPA directing you to perform community service for a specified number of hours (maximum of 500 hours). For a Magistrate to determine whether you are a suitable person for a community service order, a report must be prepared by the probation and parole service. This report will inform the Court of your suitability to engage in community service work; whether it is appropriate in the circumstances that you undertake such work; and there are arrangements in your area that will enable you to perform the work.
• Good Behaviour Bond: A good behaviour bond under section 9(1) of the CSPA enables the Court to make an order directing you to enter into a good behaviour bond for a period of up to 5 years. The Magistrate may impose a number of conditions that he/she thinks are appropriate and reasonable to your case (must be strictly complied with). These can include that you attend counselling or be supervised by a NSW Community Corrections officer.
• Dismissal of charges and conditional discharge – also known as a ‘Section 10’.

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