Law and Penalties for Sexually Touching a Child Under 10 in NSW

It is reported that 29-year-old Nikhil Bhatia allegedly kissed a two-year-old toddler on his lips at the Sea Life Sydney Aquarium last Sunday.

Police allege that Bhatia kissed the toddler twice on the lips after touching the boy’s head as he stood over his pram.

The boy’s parents then shoved him away from their son before he was arrested shortly thereafter.

It is reported that Bhatia’s had then allegedly repeatedly apologised to the boy’s parents, saying, “I’m sorry, I’m sorry, I’m sorry”.

He was arrested and charged before appearing before His Honour Local Court Magistrate Robert Williams at the Central Local Court on Monday.

He is now faced with the charge of sexual touching involving a child aged under 10.

The court heard that Bhatia’s explanation to police for his alleged conduct was “cultural difference”.

While Bhatia has expressed an intention to defend the allegations by pleading ‘not guilty’, Magistrate Williams has also expressed the view that he is likely to face a term of imprisonment if found guilty.

Police are of the view that the evidence is strong, involving evidence of direct observations by the parents and CCTV footage.

He was refused bail and is to next appear in court on 4 February.

His bail was refused predominantly due to him being a risk of flight and concern of re-offending.

The court heard that he is an Indian national currently on a tourist visa who arrived in Australia about 7 days earlier.

Bhatia was scheduled to go back to India on 22 February.

Law and Penalties for Sexually Touching a Child Under 10 in NSW

What is sexual touching? This is also known as indecent assault in NSW.

Sexual touching is when a person sexually touches someone else without the other person’s consent to do so, knowing that the other person doesn’t consent- provided that the sexual touching was done intentionally.

Section 61KC Crimes Act 1900 (NSW) prescribes a maximum penalty of 5-years imprisonment for this crime in NSW.

It also prohibits a person from inciting the alleged victim to do this to the alleged offender, or inciting a third person to do this to the alleged victim, or inciting the alleged victim to do this to a third person. The maximum penalty is the same for this conduct.

Where a person sexually touches a child who is under the age of 10, the maximum penalty is 16-years imprisonment in NSW (section 66DA Crimes Act 1900 (NSW)).

This maximum penalty also applies to a person who does this by inciting a child under 10 to sexually touch that person, or to incite such a child to do this to another person, or to incite another person to do this to such a child.

Sexual touching is expressly defined under the law in NSW as touching that a reasonable person considers sexual (section 61HB Crimes Act 1900 (NSW)).

When the courts determine whether the alleged touching is considered sexual, the court will consider:

• The body touched.
• The body part used to do the touching.
• Whether the person did it for sexual arousal or gratification.
• The circumstances of the touching.

In cases where the alleged victim is a child, consent or knowledge of consent is not relevant. A child is considered incapable of providing consent to sexual conduct, which is recognised by the law in NSW and across the nation.

What are the defences to sexual touching involving a child under 10? The following types of defences apply here:

• The touching alleged was an accident and unintentional. This could include touching that occurs as an ordinary exigency of every-day life; or
• Involuntary actions of the alleged offender. This could be due to a medical condition. i.e. involuntary spasms.
• Where the alleged act of touching occurred under a necessity or duress.

If a person is guilty of sexual touching involving a victim under the age of 10, the sentencing penalties are more limited, increasing the chances of the offender getting a Full time jail sentence.

This is because, the only alternative to a Full time jail sentence in NSW is an Intensive Correction Order (ICO). An ICO is still an imprisonment sentence except the offender does not end up going to Full time jail– he/she is instead released in the community on strict conditions.

An ICO is not available to a person who is guilty of sexual touching where the victim is a child. It is otherwise available to offenders of sexual touching where the victim is an adult.

Speak to experienced Sydney or Parramatta criminal lawyers today for more information on the law and penalties for sexual touching in NSW.

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