What does the Law say about Aggravated Indecent Assault or Sexual Touching in NSW?

 

It is reported that a Sydney teacher who was charged with the alleged indecent assault of girls 3 girls aged between 11 and 12 years has been given a verdict of ‘not guilty’ in court.

52-year-old Simon William Phillips was alleged to have indecently touched the primary school girls while he was a temporary teacher in the lower north shore Sydney school during school time.

The alleged incident was reported to have occurred in 2017.

In the same year, he was approached and arrested by police in Russell Lea. He was charged with twelve counts of aggravated indecent assault against the three schoolgirls.

Phillips pleaded not guilty in court when the matter was eventually adjourned for a defended hearing at the Burwood Local Court.

It was alleged that Phillips pressed his penis against one of the girls back.

Phillips was also accused of kissing a girl’s forehead and touching her buttocks.

Local Court Magistrate Daniel Reiss after hearing both sides of the evidence, returned a ‘not guilty’ verdict, dismissing all counts on the basis that the evidence reflected a reasonable doubt as to whether he committed the offences alleged.

Unfortunately, as a consequence of being charged with such allegations, Phillips was put on a “not to be employed list” after being charged. He was also prevented form teaching in any of this state’s schools.

Magistrate Reiss in his judgement outlined the risk of there being contaminated evidence after the prosecution witnesses had talked about the matter between themselves.

The evidence from some witnesses impressed as being influenced by the things that were said subsequent to the alleged incidents.

The court expressed, “There were a number of areas of contradiction of witnesses. Some of those aspects are significant”.

The Magistrate expressly noted the absence of any evidence that Phillips has any sexual interest in children.

The verdict is another reminder that, in our criminal justice system, the accused person has the benefit of the doubt in that it is the prosecution who is required to prove its allegations beyond reasonable doubt.

Where a doubt exists upon the evidence adduced in a hearing in court, the court must return a not guilty verdict and acquit the accused.

Phillips was reported saying, “AS you would expect, being accused of these horrendous charges impacts greatly on your personal career and also private life.”

“But we’ve been very fortunate to have excellent representation and excellent support from hundreds and hundreds of people.”

What does the Law say about Aggravated Indecent Assault or Sexual Touching in NSW?

The crime of indecent assault in NSW has been replaced with the new offence of sexual touching under section 61KC Crimes Act 190 (NSW).

There is a maximum penalty of up to 5-years prison for anyone guilty of sexually touching a person in NSW. Where the case ends up being dealt with in the Local Court, the Local Court Magistrate is limited in imposing a penalty of up to 2-years imprisonment for one count of this offence.

Committing the offence of aggravated sexual touching carries heavier penalties of up to 7-years prison under section 61KD Crimes Act 1900 (NSW).

Sexual touching is considered to be ‘sexual touching’ if a reasonable person would see the alleged touch to be sexual.

In determining if it’s ‘sexual’, a court will look at the circumstances the touching occurred in, the areas touched and part(s) of body used to do the touching, in addition to whether there was an y sexual gratification on the part of the accused person.

The maximum penalty is 10-years prison where the victim to sexual touching is a child between the age of 10 and 16 years old.

The maximum penalty is 16-years imprisonment if the victim to sexual touching is a child under the age of 10-years.

 

What the Prosecution is Required to Prove

A person will be found guilty in court for a charge of sexual touching if the prosecution is able to prove each of the following beyond reasonable doubt in court:

  1. The person accused intentionally touched the alleged victim or incited someone to do it; and
  2. A reasonable person would see the touching as ‘sexual’; and
  3. There was no consent by the alleged victim for this to occur to him/her; and
  4. The person accused was aware that there was no consent to do this but did it anyway.

For an accused person to be guilty of aggravated sexual touching, the prosecution is required to prove each of the following in court beyond reasonable doubt:

  1. The above elements 1-4; and
  2. Where the sexual touching occurred in circumstances of aggravation, including:
    1. Where it occurred in company of another person; or
    2. The accused person was in the position of authority, when the alleged victim was under his/her authority (i.e. teacher and student relationship); or
    3. The alleged victim had or has a serious physical disability or cognitive impairment

Call our friendly Sydney based criminal law firm if you have questions arising or simply wish to discuss anything criminal law related. We are available 24/7 on (02) 8606 2218.

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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