Law, Sentences and Defences for a Sexual Act Charge in NSW


31-year-old Gary Kirby was on a flight with his 10-year-old son when he was sexually assaulted by a female passenger, 38-year-old Louise Whyte.

Mr. Kirby and his son were boarded on a flight from UK to Turkey when Mr. Kirby was groped by Whyte.

The incident unfolded when Whyte had her own trousers down before trying to perform a sex act on Mr. Kirby in the plane.

While Whyte was sent back on the following flight to UK once the plane had landed, it has left Mr. Kirby’s 10-year-old son with a lasting impression.

Whyte was charged and sentenced, avoiding Full time jail.

The Manchester Minshull St Court sentenced her to 6-months prison, which was suspended by the court, meaning she will do no jail time.

The court also ordered that she be placed on the sex offender register for 7 years.

Upset at the sentence outcome, Mr. Kirby said, “the only reason is that she’s a woman”.

“If I stand here, as a 6-foot well-built male, and did all that, I would be in jail.”

“Are you telling me if I was on a plane and I started removing my outer clothing, and tried to have sex with someone, I would be spared jail? ‘No way pal’.”


How the incident unfolded

The court heard that Whyte, who was on a holiday flight with her 7-year-old daughter, consumed alcohol prior to and during the flight. She mixed diazepam, codeine with vodka.

The court was told that the two, Mr Kirby and her, had earlier met at the Manchester airport terminal.

She had lost her mobile phone at a duty-free store, and he had offered to assist by calling her phone to help her locate it.

Despite his suspicions of her as someone who is under the influence at that time, he continued to assist in her efforts to locate her phone.

Once in the flight, he said that “she put her hand on my leg and I had to take it off on no less than 5 occasions.”

During the flight, he said that she took off her jacket before saying that she’ll perform a sex act on him with the suggestion that the jacket will cover the act, to keep it discreet.

It is reported that at that time, he moved her back into her seat before informing the on-board staff about the incident.

He also said, that it all occurred in the presence of his child and her child.

The court heard that she had commenced consuming alcohol at the Manchester airport terminal prior to the scheduled 8pm flight.

Whyte had separated from her former partner about 18-months earlier- who is also the father of her daughter.

She claims that other than consuming alcohol at the airport terminal prior to boarding the flight, and consuming vodka in the plane, she doesn’t recall what occurred thereafter.

The sentencing Judge Sophie McKone said, “Once you were on that plane you effectively became out of control.”

“So concerned were the crew and captain that as the plane landed, they wouldn’t let you off the plane, quite rightly they didn’t think you would be able to care for your child.”

Law, Sentences and Defences for a Sexual Act Charge in NSW

There is a maximum sentence of 18-months jail or $5,500 fine, or both for committing a ‘sexual act’ in NSW, prescribed by section 61KE Crimes Act 1900 (NSW).

This also carries a criminal conviction of a sexual nature, which if convicted can have long-term consequences in getting or maintaining a job, and travel.

While there are heavy penalties for a sexual act offence, a NSW Court can impose a sentence on an offender without also imposing a criminal conviction against his/her name.

This can occur if the Court is convinced enough to sentence an offender with a non-conviction type of penalty, such as a section 10 or Conditional Release Order non-conviction for a sexual act offence.

Where the victim of a sexual act is a child between 10 to 15 years old, the maximum sentence a court can impose is 2-years jail, prescribed under section 66DD Crimes Act 1900 (NSW).

The maximum sentence is 7-years jail if the victim for this offence is 10-years or less (section 66DC Crimes Act 1900 (NSW)).

There are heavier sentences for committing a sexual act in circumstances of aggravation in NSW.

Where the victim of a sexual act is a child, under 16, the law prohibits a court from imposing one of the sentencing penalty options, namely an Intensive Correction Order (ICO. This limits the sentencing options available for a court to impose on a person who is guilty of this offence.

An ICO is the only alternative sentence or penalty to full-time prison.

This means, that where a court concludes that there should be no sentence other than prison for an offender, the court will not have the option of imposing an ICO (alternative to Full time jail)- resulting in an offender being sentenced to Full time jail instead.

Have a question to ask us? Call us 24/7 to arrange to speak for free with one of our criminal lawyers from Sydney today.

What is a sexual act? This is conduct that the courts consider a reasonable person would regard as sexual.

In determining if it is sexual conduct, according to a reasonable person, the court considers the circumstances of the act, whether there’s any aspect of it that would cause it to be sexual, whether it was for sexual gratification or arousal, and any body parts were used.

To prove a person committed a sexual act offence in court, the police is required to prove the following element beyond reasonable doubt:

  1. The accused intended to commit the alleged act towards or with the alleged victim; and
  2. The alleged victim did not consent to it; and
  3. The accused knew that there was no consent; and
  4. A reasonable person would otherwise regard the act as sexual.

What are the defences for a sexual act charge in NSW? Some defences to this charge include, self-defence; genuine hygienic or medical reasons; involuntary conduct by the accused; the act occurred as a result of ordinary exigencies of everyday life or incidentally in every-day life; duress or necessity; or where the accused person held an honest but reasonable belief that the alleged victim consented.

About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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