Voyeurism can be broadly defined as the act of observing a person engaged in a private act for sexual gratification.
Aggravated voyeurism is offence under section 91J(3) of the Crimes Act 1900 which carries a maximum penalty of 5 years in prison.
The prosecution is required to prove a number of facts beyond a reasonable doubt in order to establish the offence of aggravated voyeurism, and a person is entitled to an acquittal if the prosecution cannot do so.
There are also a number of legal defences available to those who are going to court for the offence.
If you have been charged with aggravated voyeurism, call Sydney Criminal Lawyers anytime on 02 9261 8881 to arrange a free first conference with an experienced criminal defence lawyer who will review the allegations and advise you of your options and the best way forward.
Read on for more information about the offence itself, the matters the prosecution needs to prove, your options, the available defences and the applicable penalties.
What is the Offence of Aggravated Voyeurism?
Aggravated voyeurism is an offence under section 91J(3) of the Crimes Act 1900 (NSW).
The section states that a person is guilty of aggravated voyeurism if he or she:
- Observes a person who is engage d in a private act,
- Does so for sexual arousal or gratification,
- Does so without the other person’s consent to being observed for that purpose,
- Does so knowing the other person does not consent to being observed for that purpose, and
- Does so in ‘circumstances of aggravation’.
A person is engaged in a ‘private act’ if:
- He or she is in a state of undress, using the toilet, showering or bathing, engaged in a sexual act of a kind not ordinarily done in public, or engaged in any other like activity, and
- The circumstances are such that a reasonable person would reasonably expect to be afforded privacy.
‘Circumstances of aggravation’ are where:
- The person observed was under the age of 16 years, or
- The defendant constructed or adapted the fabric of any building for the purpose of facilitating the offence.
A ‘building’ includes a house or apartment, as well as a vehicle such as a car or truck, a vessel such as a ship or boat, a tent and any other such temporary structure.
What is the Penalty?
The maximum penalty for voyeurism is 5 years in prison.
However, it is important to bear in mind that this is the maximum penalty that can be imposed, and that the court can apply any of the following penalties for the offence:
- Section 10 Dismissal
- Conditional Release Order
- Community Correction Order
- Intensive Correction Order
- A shorter prison term
An intensive correction order is not available where the person observed was under the age of 16 years.
What Does the Prosecution Have to Prove?
For a person to be found guilty of aggravated voyeurism, the prosecution must establish each of the following ‘elements’ (or ingredients) of the offence beyond reasonable doubt:
- That the defendant observed a person who was engage in a private act,
- That he or she did so for sexual arousal or gratification,
- That he or she did so without the other person’s consent to being observed for that purpose,
- That he or she did so knowing the other person did not consent to being observed for that purpose, and
- That the conduct occurred in ‘circumstances of aggravation’, which means the person observed was under the age of 16 years and/or the defendant constructed or adapted the fabric of the building – which can include a motor vehicle, vessel, tent or other temporary building – to facilitate the offence.
The prosecution will fail if it cannot prove each of these elements to the required standard.
What are the Defences?
In addition to the requirement to prove each element of the offence, the prosecution 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
It must disprove any available defence beyond reasonable doubt.
Your Options in Court
Pleading Not Guilty
Before you can be found guilty of aggravated voyeurism, the prosecution must prove beyond reasonable doubt that you:
- Observed a person who was engage in a private act,
- Did so for sexual arousal or gratification,
- Did so without the other person’s consent to being observed for that purpose,
- Did so knowing the other person does not consent to being observed for that purpose, and
- Did so in ‘circumstances of aggravation’, which means the person who was observed was under the age of 16 years and/or the defendant constructed or adapted the fabric of the building – which can include a motor vehicle, vessel, tent or other temporary building – to facilitate the offence.
There are a number of ways to defend aggravated voyeurism charges, including raising the fact that:
- The prosecution cannot establish that you were actually observing a person,
- The prosecution cannot establish that the person was engaged in a private act,
- The prosecution cannot establish that you were observing the other person for sexual arousal or gratification,
- The prosecution cannot establish that your actions were not consented to,
- The prosecution cannot establish that the other person was not consenting to your actions,
- The prosecution cannot establish at least one ‘circumstance of aggravation’, and
- You raise a valid legal defence which the prosecution is not able to disprove beyond a reasonable doubt.
If any of these matters prevail, you must be found not guilty of the offence.
If all except proof of a circumstance of aggravation exists, you may be found guilty of the lesser offence of ‘voyeurism’, which attracts a maximum penalty of 2 years in prison.
A good lawyer will be able to make written submissions to the prosecution with a view to having the case against you withdrawn or downgraded to voyeurism (2 year maximum sentence) or peeping and prying (3 month maximum sentence), or fight to have the charge thrown out of court if the case proceeds to a defended hearing or trial.
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 the police ‘facts’ to reduce the seriousness of the offence.
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:
Proven Track Record of Exceptional Results
Sydney 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.
Highest Level of Client Satisfaction
We 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.
Australia’s Most Awarded Criminal Law Firm
We 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.
We 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.
Free First Appointment
For 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.
Specialist Lawyer Guarantee
We 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.
All NSW Courts
From 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.
Our 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.
Results-Focused Law Firm
Our 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.
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Team of Lawyers Behind You
Our 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.
Familiar with Magistrates and Judges
Each 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.
We have offices in locations across the Sydney Metropolitan Area and beyond, including:
- the Sydney CBD, on Castlereagh Street, directly opposite Downing Centre Court,
- Liverpool, directly opposite Liverpool Local Court, and
- Parramatta, near the justice precinct.
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 firstname.lastname@example.org.
What’s the Difference Between ‘Voyeurism’ and ‘Aggravated Voyeurism’
Aggravated voyeurism is where a person commits the offence of voyeurism in what is known as a circumstance of aggravation, which is where the person who was observed was under the age of 16 years and/or the defendant constructed or adapted the fabric of the building – which can include a motor vehicle, vessel, tent or other temporary building – to facilitate the offence.
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