Sexual Touch Charges in New South Wales

An NSW Police Officer has been found to have engaged in serious misconduct over his treatment of a 15-year-old Aboriginal boy, which included flicking his exposed nipple and making a turkey noise, whilst the boy was sedated.

The incident was investigated by the Law Enforcement Conduct Commission (‘LECC’) which produced a parliamentary report detailing the young person’s complaint named ‘Operation Kimbla’.

The young person was referred to as ‘Civilian KIM1’, with the relevant officer labelled ‘Officer KIM4’.

The incident was captured on CCTV, which was referred to throughout the report.

On 14 February 2021, officers picked up the 15-year-old over a breach of bail and transported him to a nearby station.

The boy flooded his police cell by removing his pants and shoving them in the toilet.

At this stage, officers placed him into another cell, alleging that the young person began to verbally abuse and threaten to assault them.

Upon entry into the cell, it was initially alleged by police that the boy punched and kicked an officer.

The boy was charged with assaulting a police officer.

Notably, when the matter proceeded to a Hearing at Parramatta Children’s Court, the Magistrate dismissed the charge.

The Magistrate made adverse comments with respect to the conduct of the officers, stating that the force used was excessive.

After the altercation with the officers, NSW Ambulance attended due to the boy attempting self-harm.

Ambulance officers sedated the boy, whilst he was restrained on a stretcher.

A blanket was placed over the boys face, supposedly to stop him from spitting on the officers.

Whilst his face was covered with the blanket, an officer touched the young person’s exposed nipple, repeating this action and laughing with five other officers, whilst making turkey noises.

“He could hear Officer KIM4 making an offensive and demeaning silly turkey gobbler noise,” the LECC found.

“He could feel the officers touching him including Officer KIM4’s touch to his stomach and nipple. He could hear the officers laughing in response to Officer KIM4’s conduct.

“This incident involved disgraceful conduct by Officer KIM4 and all those officers who laughed with and at him. It was conduct that paid no regard to the feelings of the child who was in their custody. No one seemed to remember that Civilian KIM1 was just that, a child.” it stated.

Prior to the trolley being wheeled out of the CCTV’s sight, as the boy was restrained to a stretcher, he can be seen smiling at Officer KIM4.

The officer moved quickly to grab the boy by the throat with his right hand.

In evidence given before the LECC, one of the officers agreed that the actions of Officer KIM4: “were degrading and dehumanising, and further that the laughter only served to exacerbate such conduct.”

“The fact that this highly disturbing incident appears to have been seen as a bit of lark by the officers involved, reveals a potential failing with NSW Police’s internal child protection policy and raises severe concerns around internal policing culture.”commented Samantha Lee, senior solicitor with RLC’s Police Accountability practice.

Ultimately, the LECC recommended the Commissioner of Police consider taking ‘non-reviewable’ action against Officer KIM4, but not fining or dismissing him.

Pursuant to schedule 1 of the Police Act 1990 (NSW), ‘non-reviewable’ action includes coaching, mentoring, training, and development, counselling, reprimand, warning, non-disciplinary transfer and change of shift.

The LECC recommended counselling and further training for the other officers involved.

The situation came to light after a solicitor from the Aboriginal Legal Service submitted a complaint to the LECC on the young person’s behalf.

Redfern Legal Centre and the Aboriginal Legal Service have pushed for the involved officer to be dismissed, and for the matter to be considered for potential criminal charges.

“This man did not protect and serve. He is not fit to be a police officer nor to be in any position of power over others, let alone children. Together with our client, we expect the officer to be terminated from the police force immediately, and for criminal charges to follow.” said Karly Warner, CEO of the Aboriginal Legal Service.

What is sexual touching in NSW? Sexual touching is a criminal offence if it is done to a child or without consent to an adult in New South Wales. It occurs when a person touches another person in circumstances the touching is classified according to law as sexual according to the reasonable person. According to section 61KC Crimes Act 1900 (NSW), sexual touching carries up to 5 years imprisonment. If dealt with in the local court, the maximum penalty a local court can impose is up to 2 years imprisonment.

Sexually touching a child charge falls under sections 66DA and 66DB Crimes Act. The maximum penalty for sexually touching a person aged under 16 (but at the age at least 10) is 10 years imprisonment. If the child is aged under 10 years, the maximum penalty is 16 years imprisonment with an 8 years standard non-parole period.

For the touching to be “sexual” a reasonable person must consider it ‘sexual’ taking into account the part of the body touched, part of the body used to do the touching, and whether it was for sexual gratification or arousal.

By Poppy Morandin.

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