What are the Indecent Assault and Sexual Touching Penalties in NSW?

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It is every parents’ nightmare.

The Prime Minister, Scott Morrison described the conduct as “It’s abhorrent and unacceptable that a young child was terrorised by someone that was granted protection in our country.”

It is reported that about a week before Christmas in 2016, Mohammad Hassan Al Bayati, who was an employed security guard by the Homebush DFO shopping centre, responded to an message of a distressed toddler who was by herself in the kids play area.

The girl’s mother had gone Christmas shopping while the little girl was left at the playground area with her 7-year old sister.

When Bayati arrived, the girl was plating in the kids play area.

He grabbed the little girl’s hand, walked her to a fire exit which lead to an area that was unmonitored by cameras where the two were alone for about 11 minutes.

The Sydney District Court Jury found beyond reasonable doubt that Bayati, during the 11 minutes of unmonitored time, had exposed his penis and touched the child’s underwear.

The offence only came to light after the little girl showed tremendous courage to tell her father that same day. The told her dad that he showed his “needle” and “tried to kiss my bum bum”.

The Sentencing Outcome

His Honour Judge John Pickering said,

“The gall of the offender to lecture the mother about the dangers and risks of leaving her in the play area, when he ended up being the greatest risk, is one of the most curious parts in this matter”.

The Court sentenced Bayati to a total term of 4 and a half years imprisonment, while he will be eligible for release on parole after spending at least 2 years and 6 months in full-time custody for offences of kidnapping for sexual gratification, act of indecency and indecent assault.

While Bayati denies the offence, the DNA found on the little girl’s underwear was found to match Bayati.

Bayati was an Iraqi asylam seeker. He was born in Iraq before coming to Australia by boat in 2011. Since then he has been residing in Australia under a permanent protection visa.

Consequent to the sentence, Prime Minister has vowed to cancel his visa. In fact, a non-citizen’s visa gets cancelled automatically if he/she is convicted of a serious criminal offence in circumstances he/she receives a sentence of imprisonment of at least 12 months.

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What are the Indecent Assault and Sexual Touching Penalties in NSW?

What are the Indecent Assault and Sexual Touching Penalties in NSW?

Indecent assault and sexual touching are generally the same thing under the law in NSW.

Indecent assault has been replaced by the new sexual touching laws in NSW.

Section 61KC Crimes Act 1900 (NSW) prohibits a person from sexually touching another person without consent, knowing that he/she does not consent, if the sexual touching act was done intentionally.

It is also prohibited to do this if a person incites the alleged victim to sexually touch the alleged offender or incites a third person to sexually touch the alleged victim.

Equally, it is also a crime to do this by inciting the alleged victim to sexually touch a third person.

If guilty for any of these offences od sexual touching, the law imposes a maximum penalty of up to 5 years imprisonment.

The law imposes heavier maximum penalties where this is done to a child.

Section 66DA Crimes Act 1900 (NSW) prohibits a person from sexually touching a child who is under 10-years of age. This offence attracts a maximum penalty of up to 16-years imprisonment.

Anyone who sexually touches a child between 10 and under 16-years of age will face a maximum penalty of 10-years imprisonment under section 66DB Crimes Act 1900 (NSW).

There are many sentencing options available to avoid full-time prison, referred to as alternatives to full-time prison. This includes Intensive Correction Order (ICO) which, although is an imprisonment sentence, it allows an offender to remain in the community under conditions.

The ICO sentencing option is not available to be given to an offender who is convicted of sexual touching in NSW if the victim is or was a child at the time of the offence.

Sexual touching is expressed in section 61HB Crimes Act 1900 (NSW) as touching that a reasonable person would consider to be sexual. The court decides on this based on considering the circumstances of the touching, in addition to the area of the body it was done on (or the part of the body used).

A person will be guilty of sexual touching or indecent assault in NSW if:

The alleged offender intended to touch the alleged victim; and
The court finds that a reasonable person will form the view that the touching was ‘sexual’; and
The alleged victim didn’t provide consent; and
The alleged offender was aware that the alleged victim was not consenting to the touching.

In the case of where the alleged victim is a child, the issue of consent or whether the alleged offender knew there was no consent is irrelevant.

You will be acquitted from the charge of sexual touching if any of the following defences to this charge apply:

If the police fail to prove each of the above elements of the offence beyond reasonable doubt in court; or
The touching was accidental or in the course of ordinary exigencies of everyday life; or
The touching was done involuntarily or without the intention to sexually touch the other person; or
The act of sexual touching was done under a necessity or duress.

For information about the law on indecent assault or sexual touching in NSW, contact our exclusive criminal lawyers in Sydney who appear across all courts specialising in sex offences.

Sexual assault lawyers with experience can help navigate people charged throughout the entire court proceedings, including advice, guidance and representation in court.

Call our office 24/7 on (02) 8606 2218.

Sexual offences in NSW carry heavy sentences. Our articles help shed some light on these laws.

Published on 30/08/2019