In December 2018, the offence of aggravated sexual act replaced aggravated act of indecency in New South Wales.

The new offence is meant to better describe the conduct that is considered to be against the law when it comes to non-consensual acts towards other persons that do not involve touching, but are nevertheless sexual in nature.

The offence of aggravated sexual act is considered to be less-serious than aggravated sexual touching, although it is still treated seriously by the courts.

The Law

What is the Offence of Aggravated Sexual Act?

Aggravated sexual act is an offence under section 61KD of the Crimes Act 1900.

The section states that a defendant is guilty of a sexual act if he or she, without the consent of the complainant and knowing the complainant does not consent, intentionally and in circumstances of aggravation:

  • carries out a sexual act with or towards the complainant, or
  • incites the complainant to carry out a sexual act with or towards the defendant, or
  • incites a third person to carry out a sexual act with or towards the complainant, or
  • incites the complainant to carry out a sexual act with or towards a third person.

A ‘sexual act’ is defined by section 61HC as any act – other than sexual touching – which is carried out in circumstances where a reasonable person would consider it to be sexual.

The section provides that the matters to be taken into account when deciding if the act is sexual include whether:

  • the area of the body involved in the act is the person’s genital area, anal area or – in the case of a female person, or a transgender or intersex person identifying as female – the person’s breasts, or
  • the defendant’s actions are for sexual arousal or sexual gratification, or
  • any other aspect of the act, or the circumstances surrounding the act, make it sexual.

An act is not considered to be sexual if it is done for genuine medical or hygienic purposes.

Conduct which may constitute a sexual act includes:

  • masturbating in front of the complainant,
  • inciting the complainant to masturbate,
  • carrying out a simulated sexual act, or
  • inciting the complainant to carry out a simulated sexual act.

‘Circumstances of aggravation’ means where:

  • the defendant is with at least one other person, or
  • the complainant is under the authority of the defendant, or
  • the complainant has a serious physical disability, or
  • the complainant has a cognitive impairment.
What are the Penalties?

The maximum penalty for carrying out an aggravated sexual act is 3 years’ imprisonment.

The maximum penalty increases to two years if the offence was committed against a child who was at least 10 years of age but less than 16; see section 66DE. In that event, additional factors that can be considered as aggravation are the infliction of actual bodily harm and threatening to inflict actual bodily harm by means of an offensive weapon or instrument.

It is important to bear in mind that these are maximums and the court can impose any of the following penalties for:

However, an Intensive Correction Order is not available where the sexual act involved a person who was under the age of 16 years.

What Does the Prosecution Have to Prove?

For a defendant to be found guilty of aggravated sexual act, the prosecution must establish each of the following elements of the offence:

  • That the defendant carried out a sexual act towards the complainant, incited a third person to do so or incited the complainant to carry out a sexual act,
  • That the complainant did not consent,
  • That the defendant knew consent was not given, or was reckless as to whether consent was given.
  • That at least one circumstance of aggravation existed.

A prosecution for the offence of aggravated sexual act will fail if each of these elements cannot be proved beyond reasonable doubt.

However, an alternative verdict of guilty of sexual act can be returned if each element except for that of aggravation is established.

What are the Defences?

In addition to the requirement that the prosecution must prove each element of the offence, it must also disprove any of the following defences if properly raised:

  • Duress, which is where you were threatened or coerced,
  • Necessity, where the act was necessary to avert danger, and
  • Self-defence, where you engaged in the act to defend yourself or another, and
  • Lawful correction of a minor.

Your Options in Court

Pleading Not Guilty

Before you can be found guilty of committing an aggravated sexual act, the prosecution must prove beyond reasonable doubt that:

  • You carried out a sexual act in the presence of the complainant or incited another to do so,
  • You did not have consent to carry out the act,
  • You knew that consent was not given, or were reckless as to whether it was given, and
  • That at least one circumstance of aggravation existed.

There are a number of ways to defend the charge, including raising the fact that:

  • The prosecution cannot prove there was a sexual act,
  • The prosecution cannot prove an act was carried out towards or by the complainant,
  • The prosecution cannot prove you were the person who carried out any such act or that you incited the complainant or another to do so,
  • The prosecution cannot prove you acted intentionally or recklessly,
  • The prosecution cannot prove a lack of consent;
  • You were coerced or threatened into commit or it was undertaken in self-defence or out of necessity, or
  • The prosecution cannot prove that a circumstance of aggravation existed.

If any of these matters prevail, you must be found not guilty of aggravated sexual act.

However, you may be found guilty of the alternative offence of sexual act if each element except for a circumstance of aggravation is established.

A good lawyer will be able to make written submissions to the prosecution with a view to having the case against you withdrawn, or fight to have it thrown out of court if it proceeds to a defended hearing or trial.

Pleading Guilty

Where the prosecution evidence is very strong, you may decide to plead guilty to the offence.

In that case, your lawyer may be able to negotiate a lesser charge – such as sexual act (not aggravated) – as well as the amendment of the ‘agreed facts’ that are handed-up to the court, which can significantly reduce the seriousness of the offence, including the applicable penalties.

Your lawyer can also guide you on obtaining materials which can be handed-up to the court during your sentencing – including a letter of apology, character references and any documents from counsellors or health care professionals you have consulted.

These materials, together with persuasive verbal submissions by your lawyer in the courtroom, can help to ensure you receive the most lenient penalty that is possible in the circumstances.

By pleading guilty at an early stage, you will also be entitled to a ‘discount’ of up to 25% on your sentence – which can lead to a less serious type of penalty being imposed; for example, a section 10 dismissal or a conditional release order rather than a more serious penalty.

You will also be spared the time, expense and stress of a defended hearing or trial.

Frequently Asked Questions

Why Choose Sydney Criminal Lawyers®?

Going to court can be nerve-racking, but having a strong and compassionate legal team behind you can make the experience significantly easier to deal with.

Here are 12 reasons to choose our multi-award winning legal team:

  1. Proven Track Record of Exceptional ResultsSydney Criminal Lawyers® consistently achieves outcomes which are in the highest percentile of the Judicial Commission’s sentencing statistics for criminal cases. Our legal team devises effective case-strategies and fights hard to have cases dropped entirely or charges downgraded – saving clients the time, expense and stress of a defended hearing or jury trial. Where cases nevertheless proceed, our lawyers have an outstanding track record of winning defended Local Court hearings, and complex jury trials in the District and Supreme Courts.We also consistently win appeals in the District and Supreme Courts (including the NSWCCA) after clients have received unsatisfactory results with other law firms in the lower courts.We are one of the few firms to achieve successful criminal law appeals in the High Court of Australia.

    Where our clients wish to plead guilty, we frequently achieve ‘dismissals’ and ‘non convictions’ in cases where other lawyers have advised there is no chance of doing so.

  2. Highest Level of Client SatisfactionWe have the best and most comprehensive client review record of any law firm in Australia. Regular communication, accessibility and quality service are our team’s highest priorities. We are committed to thoroughly explaining all steps involved in the criminal law process, providing regular updates throughout the proceedings, and making ourselves accessible and responsive.We are passionate about providing an exceptional level of service to our clients, and we fight hard to achieve optimal results in the shortest period of time.
  3. Australia’s Most Awarded Criminal Law FirmWe have received more awards and accolades than any other criminal law firm in Australia. Our team has been awarded “Criminal Defence Firm of the Year in Australia” in a number of prestigious and competitive awards programs for several years running. The awards recognise our exceptional track record of results, our outstanding client service, the high level of satisfaction we achieve, the affordability of our services and our overall excellence.
  4. Fixed FeesWe want our clients to know exactly how much their cases will cost from the very start. That’s why we were the first criminal law firm in Australia to publish ‘fixed fees’, back in 2004. We offer fixed fees for most types of criminal cases and services.Our fixed fees apply to a range of Local Court cases such as drink driving, drug possession, fraud, common assault and AVOs, and also specific services such as prison visits, bail applications, appeals and defended hearings.Unlike many other law firms, our fixed fees are published on our website – which ensures transparency and certainty.
  5. Free First AppointmentFor those who are going to court, we offer a free first conference of up to an hour with one of our Senior Criminal Defence Lawyers. We also offer a free first conference to those who have received an unsatisfactory result after being represented in court by another law firm, or after representing themselves, and wish to appeal.
  6. Specialist Lawyer GuaranteeWe guarantee that only lawyers with substantial criminal defence experience will work on your case and appear for you in court. This ensures our clients receive the highest quality representation from an experienced, specialist criminal lawyer.
  7. All NSW CourtsFrom Bombala to Broken Hill, our lawyers appear in courts throughout New South Wales – and across Australia for Commonwealth cases. And we offer fixed fees for most criminal and traffic law cases throughout the state.
  8. Accredited SpecialistsOur entire firm is exclusively dedicated to criminal law – which makes us true specialists. All of our lawyers have years of experience representing clients in criminal cases, and our principal has been certified by the Law Society of NSW as an Accredited Criminal Law Specialist since 2005. An ‘Accredited Specialist’ is a lawyer who has practised for at least 5 years in a particular field of law (such as criminal law), has passed a rigorous assessment process conducted by the Law Society of NSW, and has been selected by the Specialist Accreditation Committee of the Law Society as an expert in the field. Accredited Specialists are required to undertake more training each year than other lawyers and must be successful in having their accreditation renewed every year. Specialist Accreditation is the mark of a true specialist.Our firm’s specialist experience ensures you receive the best possible result, whatever your criminal law case may be.
  9. Results-Focused Law FirmOur team is passionate about achieving results, and unlike many other law firms, our lawyers do not have monthly financial ‘budgets’ to meet. The absence of budgets means our lawyers are entirely focused on achieving optimal results in the shortest space of time; whether by getting charges dropped or downgraded at an early stage or having cases ‘thrown out of court’. Not having budgets also means our lawyers are not under pressure to engage in unscrupulous practices such as unnecessarily adjourning cases or ‘overcharging’ clients – which, sadly, is a common complaint against many other lawyers and law firms.No budgets encourages regular consultation between lawyers within the firm – promoting an ‘open door’, team environment where lawyers bounce ideas off one another, formulate case strategy together and benefit from each other’s specialised experience, methods, techniques and insights.The result is a firm which delivers optimal outcomes in the shortest time periods, at the least expense and stress to our clients.
  10. Team of Lawyers Behind YouOur clients benefit from the pool of knowledge that only an extensive team of experienced criminal defence lawyers can provide. Our lawyers regularly consult one another to stay ‘ahead of the pack’ in the ever-changing field of criminal law – constantly devising, refining and implementing specialised techniques which ensure our clients achieve the best possible outcomes. A team approach is particularly important when it comes to serious criminal cases such as murder, commercial drug cases, serious and sexual assaults, large-scale fraud, robbery and other ‘indictable’ cases.In such matters, clients reap the benefits of several lawyers devising and executing case strategies which maximise the chances of having cases dropped or downgraded at an early stage, or ‘thrown out of court’ – often saving clients a great deal of cost, time and anxiety.
  11. Familiar with Magistrates and JudgesEach of our lawyers appears in court on a daily basis, and has done so for years. We have therefore been able to develop an understanding of, and rapport with, magistrates and judges in Sydney and indeed across the state. Our team’s extensive experience before the courts ensures your case is tailored to the specific nuances of individual judicial officers, maximising the likelihood of a favourable result.
  12. ConvenienceWe have offices in locations across the Sydney Metropolitan Area and beyond, including:
    • the Sydney CBD, on Castlereagh Street, directly opposite Downing Centre Court,
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    We offer free parking at our Sydney CBD and Liverpool locations, and all of our offices are close to train stations and bus terminals.

    For those who are unable to attend our offices, we offer conferences by telephone, Skye and FaceTime anywhere around the world.

    If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at info@sydneycriminallawyers.com.au.

Does there need to be any touching?

No. Unlike the offence of ‘sexual touching’, a sexual act does not involve physical contact.

What if the other person consented but later changed their mind?

The time of the act is what’s important. The prosecution must prove beyond reasonable doubt that:

  • The other person did not consent at the time of the act, and
  • You knew the other person did not consent, or you were reckless as to whether or not they consented.

This means a person cannot consent and later, after the conclusion of the act, claim they did not consent.

That said, it should be noted that certain people are incapable of giving consent including those under the age of 16, and those with a cognitive impairment when the other person is responsible for their care.

What’s the difference between sexual act and an act of indecency?

Sexual act has replaced the offence of act of indecency in NSW.

The new offence attempts to better describe and clarify the acts that are prohibited under the law, both with the naming of the offence and the definition of sexual acts and the matters relevant to determining whether an act is sexual.

What does ‘aggravated’ mean?

This means one or more of the following situations exist:

  • the defendant was with at least one other person when the alleged sexual act occurred, or
  • the complainant was under the authority of the defendant at that time or generally, or
  • the complainant was suffering from a serious physical disability, or
  • the complainant had a cognitive impairment.

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