Aggravated Indecent Assault
Section 61L in the Crimes Act 1900 (NSW) details the offence of indecent assault. Following on from this charge, section 61M details the more serious offence of aggravated indecent assault, which states that:
- Any person who assault 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.
- Any person who assaults another person, 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 10 years, if the other person is under the age of 16 years.
In order to understand aggravated indecent assault charges, the Crimes Act also states that “circumstances of aggravation” relate to instance in which:
- The alleged offender is in the company of another person or persons, or
- The alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
- The alleged victim has a serious physical disability, or
- The alleged victim has a cognitive impairment.
If the above points can be proven, it is likely that an aggravated indecent assault charge will follow. If you or someone you know has been charged with the offence of aggravated indecent assault, it is advised to seek legal representation immediately.
At Benjamin Leonardo – The Defenders, we are a Sydney based criminal law firm with expert assault lawyers. Contact our team now for a first consultation.
Acts of indecency are perceived as very serious crimes in the NSW judiciary system. While section 61L of the Crimes Act 1900 (NSW) imposes a maximum penalty of 5 years imprisonment for indecent assault, in circumstances which the offence is aggravated the maximum penalty is increased to 7 years imprisonment. Furthermore, if the indecent assault occurs under circumstances of aggravation and the victim is under 16 years of age, the accused is liable to a maximum penalty of 10 years imprisonment.
Despite this, full time custodial sentences in gaol is not always the case for aggravated indecent assault charges. In appropriate instances, and upon consideration of the facts surrounding the crimes, the character of the offender, criminal history and personal circumstance, the NSW Court has the ability to impose alternative penalties, where seen fit. Less impactful penalties such as Community Service Orders (CSOs), Intensive Corrections Order (ICOs), good behaviour bonds or fines may be seen as appropriate punishments, and is determined on a case by case basis.
For more accurate advice in relation to the penalties that relate to your specific case should you be facing aggravated indecent assault charges, contact our expert criminal defence lawyers for a first consultation.
To be found guilty of aggravated indecent assault charges as per section 61M of the Crimes Act 1900, the prosecution must first prove all of the following elements beyond a reasonable doubt:
- That you assaulted the victim, and
- The assault was indecent, and
- And the assault was without the consent of the victim, and
- The you knew the victim was no consenting, and you realised that there was a possibility the victim was not consenting but continued to commit the act anyway, or you did not even think about whether the victim was consenting or not.
If the prosecution are successfully able to prove the above points, you will be found guilty for the charge of indecent assault. However, if the prosecution is unable to prove one of the following elements before reasonable doubt, the matter will not equate to a circumstance of aggravation, and therefore you will be not found guilty of aggravated indecent assault, although will be liable to the lesser charge of indecent assault which attracts a maximum 5-year gaol term.
- The accused if the company of another person or persons; or
- The victim was under the age of 16 years; or
- The victim was under the authority or trust of the accused; or
- The alleged victim has a serious physical disability
- The victim has a cognitive impairment.
If you choose agree and plead guilty to the charges of aggravated indecent assault that have been made against you and the prosecution team is able to prove the above elements, the case will proceed to sentencing, where you will be liable to the maximum penalty of 7-10 years imprisonment.
Despite this, pleading guilty can warrant more favourable outcomes in some circumstances. The Court recognises that pleading guilty can often demonstrate remorse for your action. As a result, a reduced gaol term or alternative penalties such as community service orders could be enforced. Depending on the circumstances, the court may also decide that your matter warrants a section 10 dismissal, whereby you will be found guilty yet no conviction will be imposed. Some section 10 dismissals may have conditional bonds associated, however they do not significantly impact your ability to work and participate in daily activities.
Our Sydney based assault lawyers may also be able to negotiate a deal with the prosecution team, given you enter a guilty plea. We work closely with all the clients we represent and provide honest advice if it is in your best interest to plead guilty or not guilty.
Benjamin Leonardo – The Defenders is a leading criminal defence law firm based in Sydney. Through out honesty, dedication and commitment, our team has proudly achieved a 90% success rate on all criminal cases that we have represented. If you or someone you know is facing aggravated indecent assault charges, it is advised to seek legal representation immediately.
Call our Sydney based assault lawyers now to schedule a first consultation.
You also have the option to plead not guilty to the charge of aggravated indecent assault. If this is the case, the prosecution team must prove beyond reasonable doubt that you did commit the offence as per section 61M of the Crimes Act 1900. If it can be proven, it is likely that you will be convicted as per the penalties listed above.
However, at Benjamin Leonardo – The Defenders, our Sydney based assault lawyers have achieved successful results for clients in such situations. In order to avoid conviction, our criminal defence lawyers will challenge the allegations set out against you, by arguing the following defences. If we are able to successfully do this, the Court may completely dismiss the charges in which you will no longer be penalised. It may also result in less serious penalties or be downgraded to a less significant charge which is more favourable than imprisonment.
For relevant advice in relation to whether you should plead guilty or not guilty to the charges of aggravated indecent assault, please do not hesitate to contact our Sydney based criminal law firm for a first consultation.
As experienced assault lawyers in Sydney, our team may use any of the following defences to disprove the aggravated indecent assault charges made against you.
Duress: Encompasses the use of unlawful intimidation to coerce an individual to commit the offence, which is not something they would usually have done if the intimidation was not present. Such intimidation can take form of harmful threats such as death or grievous bodily harm in which the accused believes that if they do not participate in the activity, the threat will eventuate and they will be at serious risk.
Necessity: Often confused to duress, the defence of necessity aims to establish that an individual participated in unlawful activities in emergency situations in order to protect themselves from danger by either human or natural forces. Where appropriate, this defence must prove that the criminal act (i.e.: indecent assault) only happened circumstances in which the accused was trying avoid consequences that are deemed as “irreparable evil”. The accused must also honestly believe that they were in a situation of “imminent peril” and had no other alternatives to avoid the threat.
Self Defence: If accepted by the Court, a person isn’t responsible for the offence because they were defending themselves, or another person. When the defence raise the issue of self-defence, it is for the prosecution to prove that the person who was accused wasn’t acting in self-defence. For example, in the offence of aggravated indecent assault, an unjust aggressor may
Mental Illness (Insanity Defence): As per the Mental Health (Forensic Provisions) Act 1990, a defence of mental illness can be raised if it can have proved that the accused was mentally ill at the time of the offence. If it can be proved that the individual suffered from severe mental illness such as psychoses, schizophrenia or bipolar disease, that would impact their ability to judge their actions, the jury will return a special verdict of “not guilty by reason of mental illness”. In these circumstances, the Court may order behavioural programs or detainment at treatment facilities.
Charges of indecent assault and aggravated indecent assault are classified as a table 2 offence in NSW. This means that the matter will be typically heard at a Local Court, unless elected otherwise by either yourself or the prosecution. If an election has been made, the matter will be dealt with in the District Court.
Although our assault lawyers are based in Parramatta and the Sydney CBD, we have extensive experience in defending various criminal cases all over NSW. Therefore, our clients can be confident that we are able to effectively represent their case regardless is the matter is dealt with in Local, District and Supreme Courts. With extensive experience working in all these courts, our criminal defence lawyers can accurately advise you on in relation to what to expect at each.
For a first consultation, call our expert criminal law firm now.