It is reported that at about 6:20am on Thursday 9 January, a man caught a Caringbah-bound train from Central Train Station in Sydney before sitting next to a 30-year-old woman who was at the time having a nap.
When the woman woke up at some stage during the train journey, she woke to the unknown man both exposing himself and sexually touching her on the train.
When the train reached the next stop, she left the train. The man remained on the same train.
Following a police investigation, a 50-year-old man has been arrested and charged for sexual touching (formerly known as indecent assault), obscene exposure, and interfering with safety or comfort of others.
Before police found the alleged man on Campbell Pde in Bondi Beach, he was described as 170cm tall, with a shaved head and slim build. He was wearing a black hoodie, beanie, blue pants and black shoes with a satchel bag.
CCTV images depict the alleged man who has been granted bail and required to next appear on 13 March at the Sutherland Local Court.
Sexual touching is what was formerly called indecent assault in NSW.
In NSW, a person who sexually touches another person without the consent of the other person, and knowing that there was no consent provided will be guilty if his/her actions were intentional.
This offence carries a criminal conviction of a sexual nature and a maximum penalty of 5-years jail.
The same maximum penalties apply to a person who incites a victim to sexually touch the offender or to incite a third person to do the same to a victim.
The same maximum penalty also apply to a person who incites a victim to sexually touch a third person.
This is reflected in section 61KC Crimes Act 1900 (NSW).
What is ‘Sexual Touching’?
Sexual touching is any touch considered by a reasonable person to be sexual. In determining whether it is ‘sexual’ the court will consider the actual circumstances of the touch, part of body used, part of body touched.
How Can a Person be Guilty of Sexual Touching in Court?
A person can only be guilty of this crime in Court if the police in NSW prove each of the following elements of the crime beyond reasonable doubt:
- The accused person intentionally touched the alleged victim; and
- The touch or touching would be considered by a reasonable person as ‘sexual’ after looking at the circumstances of the touching; and
- There was no consent to do this by the alleged victim; and
- The accused knew that the alleged victim didn’t consent to it.
Where police fail to prove any one of the above 4 elements of this crime, the accused will be acquitted from the charge of sexual touching in NSW.
What are some defences to sexual touching? A person accused of sexual touching will also be acquitted from this charge if:
- The touching was unintentional due to a medical condition; or
- The touching was accidental or occurred in the course of what the law considers ordinary exigencies of everyday life; or
- The accused person committed the touching due to a necessity or duress.
Where a person is not an Australian citizen and is on a visa, his/her visa will be cancelled automatically if convicted of a serious criminal offence where the sentence he/she receives is at least 12-months jail.
Furthermore, a person convicted of sexual touching will not be allowed to receive an intensive correction order (ICO) sentencing penalty if the victim was a child.
To arrange a free consultation with our criminal lawyers based in Sydney, please call our friendly team 24/7 today.