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SEXUAL OFFENCES

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WARNING:  The following content may be distressing for some readers. 

Sexual offences are a serious criminal offence that can significantly impact all aspects of your life, from your employment to your family and your reputation. Sexual offences have a broad definition and involve more than the sexual penetration of another person.

It is essential you seek legal advice from one of our criminal law experts. Contact our office for a free initial consultation.

The Australian criminal justice system divides sexual offences into state and Commonwealth offences.

The prosecution must prove the offence beyond a reasonable doubt. Some sexual offences may be dealt with summarily through the Local Court and some may be dealt with on indictment through the District Court (or Supreme Court if there are additional serious charges such as murder). It is up to the discretion of the prosecution to determine how your matter will be dealt with.

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    Definitions:

    • Sexual intercourse:¬†

    Sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or of any person by:

    i) any part of the body of another person, or

    ii) any object manipulated by another person (except where carried out by a medical professional e.g. during a Pap smear)

    Sexual connection occasioned by the introduction of any part of the penis into the mouth of another person, or

    Cunnilingus, or

    The continuation of sexual intercourse.

    • Sexual touching:

    If you touch another person: 

    With any part of the body or with anything else, or

    Through anything, including anything worn by the person doing the touching or by the person being touched, in circumstances where a reasonable person would consider the touching to be sexual. For example touching of genitals or anal area, breasts, etc.

    • Sexual act:

    An act, other than a sexual act, carried out in circumstances where a reasonable person would consider the act to be sexual. For example, the act being committed for sexual arousal or sexual gratification.

    • Cognitive impairment:

    A person has a cognitive impairment if they have:

    An intellectual disability, or

    A developmental disorder, or

    A neurological disorder, or

    Dementia, or

    A severe mental illness, or

    A brain injury

    That results in the person requiring supervision or social habilitation in connection with daily life activities.

    • Consent:

    A person consents to a sexual activity if they freely and voluntarily agree to the sexual activity

    Sexual Offences in New South Wales

    In NSW, there are multiple categories of sexual offences, all covered under the Crimes Act 1900 (NSW).  Not all offences are set out below. If you have questions about your specific circumstances, contact our office for a free initial consultation.

    Sexual offences against adults:

    Adults are any person over 18 years of age.

    • Sexual assault and assault with intent to have sexual intercourse

    If you have sexual intercourse without a person’s¬†consent and knowing the other person does not consent to the sexual intercourse you are guilty of an offence.

    The maximum penalty for this offence is 14 years imprisonment. The non parole period for this offence is 7 years.

    If you have sexual intercourse without a person’s¬†consent in circumstances of aggravation (aggravated sexual assault) and know the other person doesn’t consent, ¬†you are guilty of an offence.

    The maximum penalty for this offence is 20 years imprisonment. The standard non parol period for this offence is 10 years.

    Aggravation includes:

    The infliction of grievous bodily harm on the alleged victim or any other person present

    Threats to inflict actual bodily harm on the alleged victim or any other person present

    Threats to inflict grievous bodily harm or wounding on the alleged victim or any other person present

    The alleged offender is in the company of another person

    The alleged victim is under the age of 16

    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

    The alleged offender breaks and enters into any dwelling-house or other building with the intention of committing sexual assault or another indictable offence

    The alleged offender deprives the alleged victim of his or her liberty before or after committing the offence.

     

    • Sexual touching

    – It should be noted that the offence of indecent assault has been repealed and replaced with sexual touching.

    If you, without the other person’s consent, and knowing that person doesn’t consent intentionally:

    Sexually touch the alleged victim, or

    Incite the alleged victim to sexually touch you, or

    Incite a third person to sexually touch the alleged victim, or

    Incite the alleged victim to sexually touch another person 

    You are guilty of an offence. 

    The maximum penalty for this offence is 5 years imprisonment. 

    If this offence is committed under aggravating circumstances, the maximum penalty is 7 years imprisonment. The standard non parole period for this offence is 5 years.

    Aggravating circumstances occur when:

    You are in the company of another person or persons, or

    The alleged victim is under the authority of the alleged offender, or

    The alleged victim has a serious physical disability, or

    The alleged victim has a cognitive impairment

    • Sexual act

    If you, without consent, and knowing the other person doesn’t consent, intentionally:

    Carry out a sexual act with or towards the other person, or

    Incite the other person to carry out a sexual act with or towards yourself, or

    Incite a third person to carry out a sexual act with or towards the other person, or

    Incite the other person to carry out a sexual act with or towards a third person,

    You are guilty of an offence.

    The maximum penalty for this offence is 18 months imprisonment.

    Sexual offences against children:

    Children are anyone under 18 years of age. Under the Evidence Act, children have some additional protections. They can give evidence via CCTV and cannot be questioned by you. If you are unrepresented, the court will appoint an appropriate person to question the child. Children are also considered to be generally competent witnesses unless proven otherwise. Sexual assault matters involving children will also be held in closed court (not open to the public) and suppression orders may be issued by the court. That means names of the parties and details of the matter will not be made available to the public.

    • Sexual assault¬†

    If you have sexual intercourse with a child under the age of 10, you are guilty of an offence. The maximum penalty for this offence is life imprisonment. Life imprisonment means the term of your natural life. The standard non parole period for this offence is 15 years.

    If you attempt to have sexual intercourse with a child under the age of 10, or assault a child under the age of 10 with the intention to have sexual intercourse with that child, you are guilty of an offence.

    The maximum penalty for this offence is 25 years imprisonment. The standard non parole period for this offence is 10 years.

    • Sexual touching – It should be noted that the offence of act of indecency¬†has been repealed and replaced with sexual touching.

    If you intentionally:

    Sexually touch a child under the age of 10, or

    Incite a child under the age of 10 to sexually touch you, or

    Incite a child under the age of 10 to sexually touch another person, or

    Incite another person to sexually touch a child under the age of 10,

    You are guilty of an offence.

    The maximum penalty for this offence is 16 years imprisonment. The standard non parole period for this offence is 8 years.

    If the child is between the ages of 10 and 16, the maximum penalty for this offence is 10 years imprisonment.

    • Sexual act

    If you intentionally:

    Carry out a sexual act towards a child who is under the age of 10, or

    Incite a child who is under the age of ten to carry out a sexual act with or towards you, or

    Incite a child who is under the age of ten to carry out a sexual act with or towards another person, or 

    Incite another person to carry out a sexual act with or towards a child under the age of ten,

    you are guilty of an offence.

    The maximum penalty for this offence is 7 years imprisonment.

    If the child is between 10 and 16, the maximum penalty is 2 years imprisonment.

    If the sexual act is committed for the purposes of being filmed for the production of child abuse material, the maximum penalty is 10 years imprisonment.

    • Persistent sexual abuse of a child¬†

    If you maintain an unlawful sexual relationship with a child (under the age of 16), you are guilty of an offence. 

    A relationship is when you engage in two or more unlawful sexual acts with or towards a child over any period. It does not matter if that relationship occurred wholly or partly in NSW.

    The maximum penalty is life imprisonment. Life imprisonment is for term of your natural life.

    • Procuring and grooming a child

    If you intentionally procure a child for unlawful sexual activity with yourself or another person, you are guilty of an offence. 

    Grooming means:

    Engaging in any conduct that exposes a child to indecent material or provides a child with an intoxicating substance or with any financial or other material benefit, and

    Who does so with the intention of making it easier to procure the child for unlawful sexual activity with you or any other person. 

    It does NOT matter if the child is fictitious, the prosecution only needs to prove you believed you were procuring a child.

    If the child is under 14 years of age, the maximum penalty for this offence is 15 years imprisonment. The standard non parole period for this offence is 6 years.

    If the child is over 14 years of age, the maximum penalty for this offence is 12 years imprisonment. The standard non parole period for this offence is 5 years.

    It is a defence if you reasonably believed the other person was NOT a child.

    • Grooming a child who is under your authority

    If you groom a child who is under your authority, you are guilty of an offence.

    If the child is under 14 years of age, the maximum penalty is 5 years imprisonment

    If the child is over 14 years of age, the maximum penalty is 4 years imprisonment.

    If you provide another adult with financial benefit or other material benefit, and 

    Do so with the intention of making it easier to procure a child who is under that person’s authority for unlawful sexual activity with yourself or any other person,

    You are guilty of an offence.

    If the child is under 14 years of age, the maximum penalty for this offence is 6 years imprisonment.

    If the child is over 14 years of age, the maximum penalty for this offence is 5 years imprisonment.

    • Meeting a child following grooming

    If you intentionally meet a child, or travel with the intention of meeting a child, whom you have groomed for sexual purposes, and

    You do so with the intention of procuring the child for unlawful sexual activity with yourself or another person, 

    You are guilty of an offence.

    If the child is under 14 years of age, the maximum penalty for this offence is 15 imprisonment. The standard non parole period for this offence is 6 years.

    If the child is over 14 years of age, the maximum penalty for this offence is 12 years imprisonment. The standard non parole period for this offence is 5 years.

    • Cognitive impairment

    If you are responsible for the care of a person with a cognitive impairment and you have sexual intercourse with that person, you are guilty of an offence. 

    The maximum penalty for this offence is 10 years imprisonment.

    If you sexual intercourse with that person with the intention of taking advantage of their cognitive impairment, you are guilty of an offence.

    The maximum penalty for this offence is 8 years imprisonment.

    • Promoting or engaging in acts of child prostitution

    If you:

    By any means, cause or induce a child to participate in an act of child prostitution, or

    Participate as a client with a child in an act of child prostitution,

    You are guilty of an offence.

    If the child is under 14 years of age, the maximum penalty for this offence is 14 years. The standard non parole period is 6years.

    • Obtain a benefit from child prostitution

    If you receive money or any other material benefits knowing it is derived directly or indirectly from an act of child prostitution,

    You are guilty of an offence.

    If the child is under 14 years of age, the maximum penalty for this offence is 14 years imprisonment. The standard non parole period is 6 years.

    If the child is over 14 years of age, the maximum penalty for this offence is 10 years imprisonment. 

    It is a defence if the money or material benefit concerned:

    Was received by you for the lawful provision of goods or services, or

    Was paid or provided in accordance with a judgment, court order or legislative requirement.

    • Young persons¬†(16-18 years of age)¬†in special care

    If you are the special carer of a young person between the ages of 16 and 17, and you have sexual intercourse with that child, you are guilty of an offence.

    The maximum penalty for this offence is 8 years imprisonment.

    If the young person is over the age of 17 but under the age of 18, the maximum penalty for this offence is 4 years imprisonment.

    A special carer is not someone who is a close family member e.g parent, grandparent, etc. Examples of a special carer include:

    Teachers, principal or deputy principal of the child, or

    Provides religious, sporting, musical or other instruction to the child, or

    Residential carer in out-of-home care

    A worker at crisis accommodation or refuge

    If you are a special carer of a young person and you intentionally engage in sexual touching as outlined above, you are guilty of an offence.

    If the young person is between above 16 years of age and under 17 years of age, the maximum penalty for this offence is 4 years imprisonment.

    If the young person is over 17 years of age and under 18 years of age, the maximum penalty for this offence is 2 years imprisonment.

    Additional sexual offences:

    • Voyeurism

    If you, for the purposes of obtaining sexual arousal or gratification, observe a person who is engaged in a private act, e.g. in a state of undress, using the toilet, showering, engaged in a non public sexual activity, etc:

    Without the consent of the person being observed, and

    Knowing the person being observed doesn’t consent to being observed for that purpose,

    You are guilty of an offence.

    The maximum penalty for this offence is a fine of $11,000, imprisonment for 2 years or both.

    If the offence is committed under aggravating circumstances (person observed is under 16 years of age or you have constructed or adapted the fabric of a building to commit the offence) the maximum penalty is 5 years imprisonment.

    If you film a person during a private act without their consent, you are guilty of an offence. The maximum penalty is a fine of $11,000, imprisonment for 2 years or both. If you film the person under aggravating circumstances listed above, the maximum penalty is 5 years imprisonment.

    If you film a person’s private parts (genital or anal area even if covered by underwear or breasts) without their consent. You are guilty of an offence. The maximum penalty is a fine of $11,000, 2 years imprisonment or both. If you film the person under aggravating circumstances, the maximum fine is 5 years imprisonment.

    If you install a device to facilitate your observing or filming, you are guilty of an offence. The maximum penalty is a fine of $11,000, 2 years imprisonment or both. 

    • Recording and distributing intimate images – also known as image based abuse

    If you intentionally record an intimate image of another person:

    Without their consent, and

    Know the other person did not consent or you were reckless as to whether they consented,

    You are guilty of an offence.

    The maximum penalty is a fine of $11,000, 3 years imprisonment or both.

    If you are under 16 years of age, the prosecution must be approved by the DPP.

    If you distribute an intimate image:

    Without the other person’s consent, and

    Knowing the other person didn’t consent or was reckless as to their consent,

    You are guilty of an offence.

    The maximum penalty is a fine of $11,000, 3 years imprisonment or both.

    If you threaten to record and distribute an intimate image of another person, you are guilty of an offence.

    The maximum penalty is a fine of $11,000, 3 years imprisonment or both.

    The court may order you rectify the recording or distribution of the offence by taking reasonable steps to remove, delete, retract, etc the image. If you fail to comply, you are guilty of an offence.

    The maximum penalty for this offence is $5,500, 2 years imprisonment or both.

    There are exceptions to recording and distribution offences. Some of those exceptions are:

    For medical or scientific purposes

    By a law enforcement officer for law enforcement purposes

    It was reasonable given your age, cognitive ability, circumstances, etc

    • Incest

    If you have a sexual relationship with a close family member (e.g.parent, grandparent, grandchild, sibling Рincluding step-sibling, son daughter, etc) who is of or above 16 years of age, you are guilty of an offence. 

    The maximum penalty for this offence is 8 years imprisonment.

    If you are 16 years of age and below 18 years of age and the other person is a parent or grandparent, you are not guilty of an offence.

    If you attempt to commit incest, you are guilty of an offence.

    The maximum penalty for this offence is two years imprisonment.

    It is a defence if you did not know that the other person is related to you.

    • Bestiality

    If you commit an act of bestiality with any animal, you are guilty of an offence.

    The maximum penalty for this offence is 14 years imprisonment.

    If you attempt to commit an act of bestiality with any animal, you are guilty of an offence.

    The maximum penalty for this offence is 5 years imprisonment.

    Commonwealth offences:

    Sexual offences are also covered under the Criminal Code Act 1995 (Cth). It should be noted that if you are under 18 years of age, the consent of the Attorney-General is required to prosecute. However, you can still be arrested, charged and remanded in custody or bailed for a Commonwealth offence before consent is granted.

    • Using a carriage service for child abuse material

    If you:

    Access material, or

    Cause material to be transmitted to yourself, or

    Transmit, make available, publish, distribute, advertise or promote material, or

    Solicit material, and

    You do so using a carriage service, and

    The material is child abuse material,

    You are guilty of an offence.

    The maximum penalty for this offence is 15 years imprisonment.

    The prosecution must prove intention and recklessness.

     

    • Possessing or controlling child abuse material obtained or accessed using a carriage service

    If you 

    Have possession or control of material and,

    The material is in the form of data held in a computer or contained in a data storage device, and

    You used a carriage service to obtain or access the material, and

    The material is child abuse material

    You are guilty of an offence.

    The maximum penalty for this offence is 15 years imprisonment.

     

    • Possessing, controlling, producing,

      supplying or obtaining child abuse material for use through a carriage service

     

    If you 

    Have possession or control of material, or

    Produce, supply or obtain material, and

    The material is child abuse material and, 

    You have possession or control, or engage in the production, supply or obtain  with the intention of the material being used:

    By yourself, or

    Another person 

    You are guilty of an offence.

    The maximum penalty for this offence is 15 years imprisonment.

     

    • Conduct for the purposes of electronic service used for child abuse material

    If you engage in:

    Creating, developing, altering or maintaining an electronic service;

    Control or modify an electronic service;

    Make available, advertise, or promote an electronic service;

    Assist in doing anything in the proceeding paragraphs; and

    You do so with the intention that the electronic service will be use

    By yourself, or

    Another person

    You are guilty of an offence.

    The maximum penalty for this offence is 20 years imprisonment.

    Commonwealth offences:

    Sexual offences are also covered under the Criminal Code Act 1995 (Cth). It should be noted that if you are under 18 years of age, the consent of the Attorney-General is required to prosecute. However, you can still be arrested, charged and remanded in custody or bailed for a Commonwealth offence before consent is granted.

    • Using a carriage service for child abuse material

    If you:

    Access material, or

    Cause material to be transmitted to yourself, or

    Transmit, make available, publish, distribute, advertise or promote material, or

    Solicit material, and

    You do so using a carriage service, and

    The material is child abuse material,

    You are guilty of an offence.

    The maximum penalty for this offence is 15 years imprisonment.

    The prosecution must prove intention and recklessness.

     

    • Possessing or controlling child abuse material obtained or accessed using a carriage service

    If you 

    Have possession or control of material and,

    The material is in the form of data held in a computer or contained in a data storage device, and

    You used a carriage service to obtain or access the material, and

    The material is child abuse material

    You are guilty of an offence.

    The maximum penalty for this offence is 15 years imprisonment.

     

    • Possessing, controlling, producing,

      supplying or obtaining child abuse material for use through a carriage service

     

    If you 

    Have possession or control of material, or

    Produce, supply or obtain material, and

    The material is child abuse material and, 

    You have possession or control, or engage in the production, supply or obtain  with the intention of the material being used:

    By yourself, or

    Another person 

    You are guilty of an offence.

    The maximum penalty for this offence is 15 years imprisonment.

     

    • Conduct for the purposes of electronic service used for child abuse material

    If you engage in:

    Creating, developing, altering or maintaining an electronic service;

    Control or modify an electronic service;

    Make available, advertise, or promote an electronic service;

    Assist in doing anything in the proceeding paragraphs; and

    You do so with the intention that the electronic service will be use

    By yourself, or

    Another person

    You are guilty of an offence.

    The maximum penalty for this offence is 20 years imprisonment.

    Process

    1. A complainant files a complaint to the police. The police will investigate the matter to determine if there is enough evidence to proceed.
    2. Police arrest and charge you for a sexual offence or multiple sexual offences. A police officer may charge you with multiple offences for the one act (stack charges) in the event they don’t have enough evidence to convict on one offence, there may be enough to convict on the other offence. For persistent sexual abuse of a child, a NSW¬†police officer can arrest you even when one or more of the offences happen in another state e.g. South Australia.
    3. Depending on the sexual offence you have been charged with, you may be given police bail or remanded in custody. If you are remanded in custody, you will have an opportunity to apply to the court for bail.
    4. If the prosecution decides to deal with your matter summarily e.g for matters such as voyeursim, it will go before the Local Court. If your matter is dealt with by indictment e.g. producing and distributing child abuse material, your matter will go to the Local Court for a committal hearing. A committal hearing is used to determine if there is enough evidence to proceed to trial.
    5. If your matter goes to trial, it will be heard in the District Court. This can take weeks or months depending on the court’s diary. COVID may delay proceedings. If you are found guilty, you may be eligible to appeal your conviction to the Supreme Court. If you appeal your conviction, you may be eligible to apply for bail until your appeal is heard. Speak with one of our criminal law experts for advice about your appeal.

    Disclaimer:

    The above is general legal information and should not be considered legal advice. You should speak with one of our solicitors for legal advice tailored to your specific legal problem. The penalties listed are maximum penalties. The courts deal with matters on a case by case basis.It should also be noted that there may be court delays due to COVID-19.

    Legislation: CRIMES ACT 1900

    (1) A person who intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable–
    (a) to imprisonment for 5 years, or
    (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 10 years.
    (1A) A person who, in the company of another person or persons, intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable–
    (a) to imprisonment for 6 years, or
    (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 11 years.
    (2) A person who, during a public disorder, intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable–
    (a) to imprisonment for 7 years, or
    (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 12 years.

    (1) A person who destroys or damages property, intending by the destruction or damage to cause bodily injury to another, is liable–
    (a) to imprisonment for 7 years, or
    (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 14 years.
    (2) A person who, during a public disorder, destroys or damages property, intending by the destruction or damage to cause bodily injury to another, is liable–
    (a) to imprisonment for 9 years, or
    (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 16 years.

    (1) A person who dishonestly, with a view to making a gain for that person or another, destroys or damages property is liable–
    (a) to imprisonment for 7 years, or
    (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 14 years.
    (2) A person who, during a public disorder, dishonestly, with a view to making a gain for that person or another, destroys or damages property is liable–
    (a) to imprisonment for 9 years, or
    (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 16 years.

    NSW Courts our criminal lawyers attend

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    Telephone: 1300 679 272
    Fax: 4720 1555
    Registry Hours: 9:00 - 4:30
    Telephone Hours: 8:30 -4:30
    Days open: Mon-Fri

    Street Address: 288 Windsor Street
    Postal address: PO Box 9 Richmond NSW 2753
    Telephone: 1300 679 272
    Fax:
    Registry Hours: 9:00 - 1:00 and 2:00 - 4:00
    Telephone Hours: 8:30 - 4:30

    Street Address: 814 Victoria Road
    Postal address: PO Box 22 Ryde 1680
    Telephone: 1300 679 272
    Fax:
    Registry Hours: 9:00 - 1:00 and 2:00 - 4:00
    Telephone Hours: 8:30 - 4:30
    Days open: all registry enquiries are to be directed to Parramatta Local Court .

    Street Address: 66-78 Albion Street
    Postal address: PO Box K303 Haymarket NSW 1240
    Telephone: 8667 2100
    Fax: 8667 2130
    Registry Hours: 9:00 - 4:30
    Telephone Hours: 9:00 - 4:30
    Days open: Mon - Fri

    Street Address: Cnr Flora and Belmont Streets
    Postal address: PO Box 37 Sutherland NSW 2232
    Telephone: 1300 679 272
    Fax: 9542 0244
    Registry Hours: 9:00 - 4:30
    Telephone Hours: 8:30 - 4:30
    Days open: Mon - Fri

    (formerly Level 5 Downing Centre)

     

    Street Address: Level 4, John Maddison Tower, 86 Goulburn St
    Postal address: PO Box K1026 Haymarket NSW 2000
    Telephone: 1300 679 272
    Fax: 9287 7188
    Registry Hours: 9:00 - 4:30
    Telephone Hours: 8:30 - 4:30
    Days open: Mon - Fri

    Frequently Asked Questions.

    The age of consent in NSW is 16 years of age. It can get confusing when children under the age 16 engage in a sexual relationship. If you are under 16 years of age and have been accused of a sexual offence, you should assist legal advice ASAP. Call our office for a free initial consultation.

    Yes. It does not matter if you are married to the complainant, if they do not consent to the sexual activity, it is a sexual offence and you will be dealt with the same as if you were not married. It will also be dealt with as a family violence matter and additional charges may result.

    If a child in your care has disclosed to you they have been the victim of a sexual offence, you may be required to attend court. The only exception to this might be in the case of privileged relationships with protections such as counselling and psychology services where the child has discussed the offences during those sessions.

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