Sexual Touching in New South Wales: Offences, Penalties and Legal Defences

New South Wales Police has reported that a man apprehended by officers from the North West High Visibility Policing Unit on Dharug land in the western Sydney suburb Lethbridge Park at 6.20 pm last Saturday night, 22 August 2026, over reports he was wielding an axe, also happened to be the same man wanted on an outstanding warrant related to historic sexual offences, including sexual touching.

NSW Police Transport Command officers had opened an investigation on Monday, 17 August 2026, into alleged historic sexual offences that are said to have taken place on a train in 2023. This is part of Operation Savete, which is an inquiry with a specific focus on sexual offending on public transport. And a warrant was issued for the suspect’s arrest.

The report appears to the suggest that North West police had been alerted to a man lurking in the vicinity of a residence on Apia Place in Lethbridge Park last Saturday night, and he then turned out to be the subject of the recently issued warrant. And on being approached by police officers, the suspect attempted to resist arrest, and on his being apprehended, the axe was located and seized.

At that point, the outstanding warrant was executed, and the suspect was charged with several sexual offences, including with the sexual touching of another person without consent, inciting another to undertake a sexual act with a third person without their consent and perpetrating a sexual act on another without their consent.

The suspect was then taken to Mount Druitt police station to be further charged with fresh crimes that included hindering or resisting a police officer in the execution of their duty and the summary offence of being in custody of an offensive implement in a public place. The man, who had been refused bail, was set to appear in Blacktown Local Court on Wednesday 26 August 2026.

Crimes involving touch without consent

The suspect, who is remanded in custody at the time of writing, has been charged with one count of sexual touching under section 61KC of the Crimes Act 1900 (Cth), which carries a maximum penalty of 5 years imprisonment. 

The offence of sexual touching replaced ‘indecent assault’ in December 2018; which means those who are accused of engaging in the prescribed conduct since that time are subject to the newer offence, whereas conduct before that time is charged as indecent assault.

To prove sexual touching, the prosecution must show beyond a reasonable doubt that the accused was involved in such touching with another person while knowing they didn’t consent. This can involve the accused sexually touching the complainant, or inciting the complainant to touch them, or inciting a third person to touch the complainant or inciting the complainant to touch a third person.

Section 61HB of the Crimes Act further defines the offence of sexual touching, as involving the accused touching a complainant with any part of their body or anything else, including through anything worn by either person, “in circumstances where a reasonable person would consider the touching to be sexual”.

The section too sets out that sexual touching that continues for a period of time still involves the same offence.

In deciding whether a reasonable person would consider “touching to be sexual”, the section goes on to stipulate that consideration can involve whether the area that was touched included a “person’s genital area, anal area or breasts” and “whether or not breasts are sexually developed”, and these facts apply regardless of an individual’s gender or sex.

Further considerations in respect of the offence involve whether the person doing the touching was seeking “sexual arousal or sexual gratification”, or if “any other aspect of the touching… makes it sexual”.

The section also stipulates that touching carried out for hygiene or medical purposes is not sexual touching.

The additional offences of sexual touching

The offence of aggravated sexual touching is contained in section 61KD of the Crimes Act, and it carries up to 7 years inside. To prove this crime, the prosecution has to show the same elements that comprise the offence of sexual touching and that it has been done under circumstances of aggravation.

If an aspect of an offence has been aggravated, it means that it makes the crime more serious. Circumstances of aggravation are contained in subsection 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Common aggravating circumstances include being in the company of another, the use of a weapon or the offence being perpetrated upon a person in their own home.

A standalone offence relating to the sexual touching of a child under the age of 10 is contained in section 66DA of the Crimes Act. The elements are the same as the basic offence, but they involve a victim under the age of 10. This crime carries up to 16 years prison time. Section 66DB of the Act contains the crime of sexual touching a child between 10 and 16, and it carries up to 10 years.

The final offence involving sexual touching is contained in section 73A of the Crimes Act. It comprises of touching of a child between 16 and 18, who is in the special care of the offender. The prosecution has to prove the same elements as the basic crime and that the victim was either 16 or 17 at the time, and that the crime occurred when the offender provided special care to the victim.

Special care involves the care of a parent or a grandparent, or a guardian or authorised carer, or a spouse or a de facto partner, or a school teacher, principal or deputy principal, or a school employee, or someone with an established personal relationship with the child, or a custodial officer, a health professional, or someone involved in providing residential care or crisis support accommodation.

If the offending against the section 73A offence involved a 16-year-old, the maximum penalty is up to 4 years prison time, whilst in circumstances involving a 17-year-old, the maximum drops down to 2 years in gaol.

Defending sexual touching offences

The most common way to defend a charge of sexual touching is to argue that one or more of the essential elements (or ingredients) of the offence has not been proved beyond a reasonable doubt.

One such element is consent, which under section 61HI of the Crimes Act means that the other person “freely and voluntarily agrees to sexual activity”, which in turn requires ‘affirmative consent’; in other words, that consent was communicated via words or conduct at the time of the conduct.

There are also a number of legal defences to sexual touching charges. In the event that a legal defence is raised by the evidence in the case, the prosecution has the burden of disproving beyond a reasonable doubt that the defence applies to the circumstances of the case.

The most frequently relied upon legal defence is the defence of duress. This is where a threat had been made against the defendant or a loved one which caused them to engage in the conduct, the threat was sufficient to justify the conduct, the threat was on the defendant’s mind at the time of the conduct and the threat was continuing through the conduct.

The defence of mental impairment or cognitive impairment is another which can arise in sexual touching case. This defence is contained in section 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), and provides that a person is not criminally responsible conduct which would otherwise amount to a crime if they were suffering from a mental impairment, cognitive impairment or both at the time the conduct occurred.

Historic sexual offences

An interesting aspect to this report is that it refers to sexual touching as an historic sexual offence, whilst the offence itself was only inserted in the Crimes Act, as part of the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018. 

This legislation overhauled NSW sex crime law in response to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse.

Since these changes were enacted in late 2018, it’s often been that when a case has involved historic sexual offending, the offence of ‘indecent assault’ has been involved. Indecent assault is the offence that sexual touching replaced.

In terms of cases of historic sexual offending that involve offences that are no longer on the books, a NSW court prosecutes an offender under the old offence that applied at the time their crime was committed, and the older provisions and penalties related to the repealed offence continue to apply during the prosecution of it.

But there is no specified period of time that must have passed or any statutory limit that defines when a crime in NSW is considered to be an “historic” offence. In the current case, involving the man from Lethbridge Park, it has only been a matter of three years since the offending occurred.

And whilst the 2018 child sex crime law overhaul did have a focus on reforming the manner in which child sexual offences had been operating in this state, as can be seen with the new offence of sexual touching – and the addition of the offence of ‘sexual act’, which replaced an ‘act of decency’ – these reforms also have bearing on sexual crimes committed against adults.