Sydney Sex Offence Lawyers

In New South Wales, wilful and obscene exposure in or near a public place or school is a criminal offence under section 5 of the Summary Offences Act 1988 (NSW). The offence involves the intentional exposure of the genitals or private parts in circumstances that are regarded as obscene according to accepted community standards. The offence carries a maximum penalty of six months’ imprisonment and/or a fine of $1,100.

For the purposes of the Act, exposure refers to the deliberate revealing of genitalia in a public place. The offence does not require the performance of a sexual act and may include conduct such as exhibitionism or public nudity. A public place is broadly defined as a location that is open to, or used by, the public.

It is not necessary for another person to have actually witnessed the exposure. The relevant consideration is whether the accused knew, or ought reasonably to have known, that their conduct was capable of being seen by others. The offence is founded on the principle that wilful and obscene exposure offends community standards and public decency.

The offence of sexual act is punishable by a maximum of 18 months’ imprisonment and a maximum of 3 years’ imprisonment if aggravated.

To be found guilty of committing a sexual act the prosecution needs to prove beyond a reasonable doubt that you intentionally, did one of the following:

1. carried out a sexual act with or towards the alleged victim, or
2. incited the alleged victim to carry out a sexual act with or towards you, or
3. incited a third person to carry out a sexual act with or towards the alleged victim, or
4. incited the alleged victim to carry out a sexual act with or towards a third person,

and it was done:

i. without consent of the alleged victim; and

ii. knowing the alleged victim did not consent; and

iii. if the offence is an aggravated offence, that there was a circumstance of aggravation.

“Circumstances of aggravation” means circumstances in which:

1. the alleged offender is in the company of another person or persons, or
2. the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
3. the alleged victim has a serious physical disability, or
4. the alleged victim has a cognitive impairment.

The offence of sexual touching is contained in section 61KC of the Crimes Act 1900 (NSW). A person commits this offence if they intentionally touch another person in a sexual manner without consent, or if they incite another person to engage in sexual touching without consent. The offence also extends to encouraging a complainant to sexually touch the accused or a third person. Sexual touching carries a maximum penalty of five years’ imprisonment.

For the purposes of this offence, sexual touching includes touching any part of another person’s body, either directly or through clothing, where a reasonable person would consider the touching to be sexual in nature. The offence applies whether the complainant is unable to consent or has not in fact consented.

Consent is defined under section 61HI of the Crimes Act 1900 (NSW) and is assessed according to specific legal criteria. Whether consent was present is often a central issue in sexual touching cases and depends on the particular circumstances.

In determining whether touching is sexual in nature, section 61HB(2) of the Crimes Act 1900 (NSW) requires the court to consider whether a reasonable person would regard the touching as sexual, having regard to all the circumstances. Relevant factors include:

1. The area of the body involved, including whether the touching involved the genital or anal area, or, in the case of a female person (including a transgender or intersex person identifying as female), the breasts, whether or not sexually developed;
2. The purpose of the touching, including whether it was carried out for the purpose of obtaining sexual arousal or sexual gratification; and
3. The surrounding circumstances, including any other aspect of the touching that may make it sexual in nature.

These factors are assessed objectively and are central to determining whether the conduct alleged falls within the definition of sexual touching at law.

A person commits sexual assault if they engage in sexual intercourse with another person without that person’s consent, knowing that consent is not present. Sexual assault is a serious criminal offence in New South Wales and carries a maximum penalty of 14 years’ imprisonment, or up to 20 years’ imprisonment where the offence is committed in circumstances of aggravation.

Meaning of Sexual Intercourse

For the purposes of sexual assault offences, sexual intercourse is defined broadly under NSW law and includes:

1. Penetration of the vagina or anus of a person by any part of the body or by an object; and
2. Oral sex.

What the Prosecution Must Prove

To obtain a conviction for sexual assault, the prosecution must prove beyond reasonable doubt that:

1. The accused engaged in sexual intercourse with another person;
2. The other person did not consent to the sexual intercourse; and
3. The accused knew the other person did not consent.

If any one of these elements cannot be established, a verdict of not guilty must follow.

Aggravated Sexual Assault

Sexual assault is regarded as aggravated where certain circumstances are present at the time of the offence, or immediately before or after it. Circumstances of aggravation include where the accused:

1. Intentionally or recklessly inflicts actual bodily harm on the complainant or another person present or nearby;
2. Threatens to inflict actual bodily harm using an offensive weapon or instrument;
3. Threatens to inflict grievous bodily harm or wounding;
4. Acts in company with one or more other persons;
5. Commits the offence against a complainant under 16 years of age;
6. Is in a position of authority over the complainant;
7. Commits the offence against a complainant with a serious physical disability or cognitive impairment;
8. Breaks and enters a dwelling or other building with the intention of committing the offence or another serious indictable offence; or
9. Deprives the complainant of liberty before or after the commission of the offence.

Where any of these circumstances are present, the offence attracts significantly higher penalties.