What are the Penalties for Sexually Touching a Child?

By Scott Feeney and Jimmy Singh.

 

It is reported that a 55-year-old man has been charged with 10 counts of indecent acts on seven boys.

It is alleged that Benjamin Christopher Missi Swann, also known as ‘Benjy Swann’, committed indecent acts on boys after asking them to take off their clothes in NZ.

The prosecution allege that Benjy touched a boy’s genitals and committed other indecent acts in a locked room.

The prosecution managed to extract text messages from Benjy’s phone thanks to the police digital forensic unit.

One such text message was written from Benjy’s phone to another person suggesting that one of the alleged victim’s was “aroused” at about the time of an alleged act. Benjy agreed in court during cross examination that he had meant that one of the boy’s had an erection.

“Prosecution: You did tell him to take off his pants”.

“Benjy: No I did not”.

“Prosecution: He did not have an erection, did he?”

“Benjy: He did”.

“Prosecution: You did touch and rub his penis”.

“Benjy: Absolutely not”.

Benjy is facing trial at the Auckland High Court. A jury that comprised of 7 women and 5 men were empanelled on 29 April 2019.

It is reported that the first alleged victim in the case told his best friend and his mother of the alleged incident which occurred in a closed room with nobody else present at the time.

The teen claimed the accused touched him while he was sleeping.

“He said he woke up to see Mr Swann touching his private parts, and he just pretended to sleep because he didn’t know what to do. While he was telling me, he was crying.”

The victim’s mother told the court that they had a private conversation and when they finished talking the both of them were crying.

“I was so upset, and we cried. I was so surprised that he could talk to me, and I told him ‘I’m so angry’.”

The incident was then reported to the police initiating an investigation.

During police enquiries, a further six boys were found who were making similar allegations.

The reports varied amongst some of the boys claiming that he had allegedly touched them while naked or wearing just underwear.

Another teenage boy accused Benjy of touching his privates while undressed in a room on their own.

“The Crown says that the similarities between all of these allegations are not a coincidence and not a result of collusion”.

The Crown’s case will be heavily reliant upon the seven boys, and the evidence that they will give.

Benjy’s defence said that “It all sounds very bad, and if it were all true, then it would be very bad. But Mr Swann denies the allegations 100 per cent.” It was the jury’s job to “spot the lies using common sense” he said.

Benjy doesn’t deny having known the boys or having had interacted with them. His defence say that the boys’ stories are “filled with some half-truths and outright falsehoods.”

Many aspects of the trial and evidence presented to the jury are not able to be reported due to the suppression order to protect the boys.

All 10 charges of indecent acts were read out to him, which he formally pleaded not guilty to.

While he is not required to give any evidence in his trial according to law, he chose to give evidence to clear his name.

Benjy taught at numerous Auckland schools, including Otahuhu College, while he maintained a teacher’s certificate for 30-years. It is reported that he has voluntarily agreed to cease teaching.

His social media profiles have him listed as a catwalk and stills model, as well as a dancer and singer.

He also details himself as a sports trainer, massage therapist, physio and a rugby coach. Reportedly he was a P.E and health studies teacher for years nine through thirteen.

Benjy’s name was suppressed earlier on his 1st court appearance at the Manukau District Court in late 2017, which was subsequently lifted.

In New Zealand, the offence of an indecent act on a young person carries a penalty of up to 7-years in jail.

What is Sexual Touching in NSW?

Indecent assault in NSW has been replaced with the new offence of sexual touching since December of 2018.

Section 61KC Crimes Act 1900 (NSW) says, that anyone guilty of touching any other person in a situation where it would be seen by a reasonable person to be “sexual” will face a maximum penalty of up to five-years in jail.

To be guilty of sexual touching, the prosecution must prove each of the below elements of this crime beyond reasonable doubt in court:

  1. The accused touched the alleged victim; and
  2. A ‘reasonable person’ would see the touching as ‘sexual’; and
  3. There was no consent to do this; and
  4. The accused was aware that there was no consent to do this

You will be found not guilty to a charge of sexual touching if the above elements are not proven, or the actions or conduct of the accused person was not voluntary or were accidental.

It is also a defence to a sexual touching charge if the accused honestly and reasonably believed that there was consent.

What are the Penalties for Sexually Touching a Child in NSW?

However, if the sexual touching is committed on a child, the penalties are heavier.

Where the sexual touching is committed on a child under the age of 10, the maximum penalty is 16-years jail. (section 66DA Crimes Act 1900 (NSW)).

Where the sexual touching is committed on a child who is aged between 10 and 16, the maximum penalty is 10-years jail. (section 66DB Crimes Act 1900 (NSW)).

Anyone guilty and convicted for sexual touching in NSW will not be eligible for the penalty of an intensive correction order (ICO) if the victim is a child.

A person who pleads guilty to sexual touching may still walk away without a criminal record if the Magistrate or Judge is convinced to impose a sentence penalty of a section 10 dismissal or Conditional Release Order without a conviction.

 

With Sydney’s leading criminal lawyers across 8 locations in NSW, we are available on our 24/7 hotline (02) 8606 2218.

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