What are the Penalties for Committing a Sexual Act?

 

It is reported that a 50-year old man was seen to be masturbating in broad daylight in Doonside at the Nurragingy Reserve on Monday.

It is alleged that he was masturbating in front of children who reported the incident to their mother.

Police also allege that the man commenced further sexual acts in view of a mother and her children.

The incident is alleged to have occurred at about midday during a time a woman and her children were having a picnic. It was when the children were playing that they allegedly spotted the man performing the sexual act.

The women reportedly told police that she observed the man then commence sexual acts in the park in front of other children and women.

The man was subsequently found and charged facing three counts of sexual acts. He was arrested and refused bail.

The 50-year-old man will next appear at the Blacktown Local Court.

The NSW Police have reportedly said, “The incidents were reported to police who attended and arrested a 50-year-old man as he rode his bike towards the Nurrangingy Road exit”.

Meanwhile, shocked on-lookers at the Finsbury Park, North London on Tuesday 14 May 2019 were exposed to a woman believed to be in her 30’s to be kneeling while performing a sex act on a man who was laying on his back holding a can.

At one stage of the explicit encounter, the pair were even approached by a dog who was quickly hauled away by the owner.

Despite the attention the pair were receiving in the park, they continued their X-rated scenes in daylight for about 10 minutes. The pair casually got up and walked away once they were done.

A witness was reported saying, “I simply couldn’t believe what I was seeing. It was so brazen, lunchtime in that park, especially when the sun is out, is very busy.”

“The guy was just leaning back with a beer in his hand like he was watching the world go by, but his girlfriend was pleasuring him in front of everyone.”

“It made me feel a bit sick and I couldn’t finish my lunch. I didn’t know where to look to be honest.”

What are the Penalties for Committing a Sexual Act in NSW?

Anyone who commits a ‘sexual act’ will face a criminal record and up to 18-months imprisonment and/or a fine of up to $5,500 under section 61KE Crimes Act 1900 (NSW).

This offence carries a heavier penalty of up to 2-years imprisonment if the victim is ten to fifteen years of age (section 66DD Crimes Act 1900 (NSW)).

Where the victim is aged 10 years or less, the maximum penalty is 7-years imprisonment under section 66DC Crimes Act 1900 (NSW).

Where the offence of a sexual act is committed in circumstances of aggravation, the penalties rise to a maximum of 3-years prison and/or a fine of up to $5,500. However, if the victim of an aggravated sexual act is between the age of 10-16 years old, the maximum penalty is 5-years prison. If the victim here is under 10-years of age, the maximum penalty is 7-years prison.

‘Circumstances of aggravation’ includes where the offence is committed in company of another person (other than the victim), where the victim was at the time under the authority of the offender, or where the victim had a serious physical disability of cognitive impairment.

This offence, along with the new offence of sexual touching, was introduced into NSW in December 2018.

The only way an offender can escape a criminal record is if the Court is convinced enough to impose a non-conviction sentence. A non-conviction sentence is where the court gives either an order under section 10(1)(a) or a Conditional Release Order without conviction.

A criminal record for a sexual act offence can have significant consequences.

What is a ‘Sexual Act’?

A sexual act is behaviour that a reasonable person would consider to be sexual.

When a court assesses whether the alleged behaviour is something a reasonable person would assess as sexual, the following factors will be considered, if relevant:

  • The circumstances in which the act was done.
  • Whether there is any aspect of the act that would cause it to be seen as sexual.
  • Whether it was done for a sexual gratification or arousal.
  • If any body parts were used, which parts. For example, if it involves the breasts or genitals, then it would likely be considered sexual.

In summary, for you to be found guilty of committing a sexual act in court, the police are required to first prove each of the following beyond reasonable doubt:

  1. You intended to do the act either towards or with the victim; and
  2. The victim didn’t consent; and
  3. You were aware that the victim didn’t consent; and
  4. A reasonable person would consider the act as sexual.

A person who is faced with a charge of sexual act will have a defence to his/her case which will result in the charge being dismissed if any one of the following defences apply:

  1. If the police fail to prove any one of the above 4 elements of the crime; or
  2. The act was for a genuine medical or hygienic purpose; or
  3. Self-defence; or
  4. Your act was involuntary; or
  5. Your act was incidental as in the course of ordinary exigencies of everyday life; or
  6. The act was committed under a necessity or duress; or
  7. You honestly and reasonably believed that the alleged victim was consenting at the time of the act.

It is worth noting that where a person is guilty of committing a sexual act in NSW, the court is limited in the availability of the types of penalties it can impose on a sentence. For example, the sentencing options of an Intensive Correction Order (ICO) will not available to such offenders if the victim at the time of the offence was under 16-years of age.

There are various kinds of sexual offences in NSW, each of which are taken very seriously by police and the courts under the law. It’s critical to obtain early advice and guidance if every facing any of these charges.

Our criminal lawyers are located in Sydney City, and 7 more locations in NSW for a free appointment and advice.

About Jimmy Singh

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

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