26-year-old NSW Police Constable, Mitchell James Willey was charged for indecently assaulting a woman at a Penrith music festival-Defqon 1 on 16 September last year.

On Monday 15 October 2018, the off-duty police officer pleaded guilty in the Penrith Local Court to the indecent assault charge.

Since charged, it’s reported that he had been suspended with pay for over a year but will likely be dismissed following his sentence on the Monday.

The offence of indecent assault was replaced with the new offence of sexual touching in NSW in December 2018.

The Indecent Assault

It is reported that Mr. Willey had approached the woman at the festival who had just left the toilet area to join her boyfriend when he committed the indecent assault. It was at this time that he walked between the woman and her boyfriend at Defqon 1 in Penrith and grabbed her crotch.

Reports reveal that the woman screamed “don’t touch me” while he said “yeah”, laughed and continued walking past her.

Immediately behind him at the time this occurred were 7 police officers.

The Court Outcome

The Magistrate who was unable to find that he had any remorse for his offending behaviour which was described as a “random attack by the offender” sentenced him with a criminal conviction and a two year Community Corrections Order.

It is reported that the court heard, that a conviction for this will “end a lifelong ambition of his to be an officer and serve the people of NSW”, said his defence lawyer.

Reports reveal that the court also heard that he had already suffered extra-curial punishment from the media attention, suggesting that he is not walking away without punishment.

The Law and Penalties for Indecent Assault Charges in NSW

In December 2018 in NSW, the offence of Indecent Assault was replaced with the new offence of ‘Sexual Touching’.

A person who was guilty of indecent assault would face a penalty of up to five years imprisonment under section 61L of the Crimes Act 1900 (NSW).

Up until the end of 2018, you would only be guilty of indecent assault if the police could prove beyond reasonable doubt that:

  1. You committed an assault on the victim; and
  2. The victim did not consent to it; and
  3. You had knowledge that there was no consent. This can be established in either one of the following situations:
    • You knew the victim didn’t consent; or
    • You realised the possibility that the victim didn’t consent but continued the assault anyway; or
    • You were indifferent as to whether there was consent; or
    • You failed to even advert your mind to considering whether there was consent; and
  4. Your conduct constituting the ‘assault’ was an ‘act of indecency’.

What is an Assault?

An assault is any conduct which intentionally or recklessly causes another person to apprehend immediate and unlawful violence.

It can be committed without any physical contact so long as it causes that ‘apprehension of immediate and unlawful violence’.

For example, it is an ‘assault’ if you point a fake/toy pistol at someone intending for that person to believe it’s real.

An assault can also include a ‘battery’ which is the intentional or reckless application of force to another person.

For example, a ‘battery’ can include touching someone else without consent.

An assault can be committed ‘recklessly’ if you foresaw the likelihood of inflicting injury or fear but ignored that risk.

What did the Act of Indecency’ Mean?

An act of indecency is where a person commits an act considered by right minded people as against community standards of decency.

It includes conduct that offends against currently accepted standards of decency.

To classify as ‘indecent’ the act is required to have some ‘sexual connotation’ to it. This can mean that the ‘sexual connotation’ can be inherent from the part of the victim’s body that was alleged to have been touched by an accused person (or part of the accused body part used to do the touching).

It’s irrelevant that the act constituting the ‘indecency’ was done with or without a sexual motive of sexual gratification.

Examples of an act of ‘indecency’ included:

  • Touching of a female’s breasts
  • Touching the genital area
  • Kissing another person against his/her will accompanied by a suggestion that sexual intercourse take place.

The New Sexual Touching Laws in NSW

The new sexual touching offence replaced the old indecent assault offence in NSW in December 2018.

Sexual touching occurs where one person touching another, where that touching is considered by a reasonable person to be sexual.

In deciding whether a reasonable person will consider the touching as ‘sexual’, a court will consider the part(s) of the body used to do the touching, part(s) of the body touched, if the touching was done for sexual arousal or gratification, and any other aspects that suggests that it was sexual.

A person guilty of sexual touching in NSW will face a maximum penalty of up to 5-years imprisonment if the case ends up being finalised in the District Court. If it is finalised in the Local Court, the maximum penalty a local court Magistrate can imposed for this offence is up to 2-years imprisonment. Although it would be rare for a court to impose the maximum.

To be guilty of sexual touching in NSW, the court must first be satisfied beyond reasonable doubt as to each of the following elements of the crime:

  1. You intentionally touched the alleged victim, or incited someone else to do this; and
  2. The touching is considered ‘sexual’ by a reasonable person; and
  3. There was an absence of consent by the alleged victim; and
  4. You had knowledge that there was an absence of consent at the time.

The prosecution will fail in proving guilty if it fails to prove any one of the above elements in court.

What are the Defences to a Sexual Touching or Indecent Assault Charge?

You will be found not guilty, and the charge will be dismissed if any one of the following defences apply:

  • Physical contact considered as an ‘inevitable part of the exigencies of everyday life. This includes all physical contact that is considered generally acceptable as part in the conduct of daily life.
  • There was consent by the alleged victim. Consent can be inferred from the absence of any resistance from the alleged victim in combination of other factors that suggest that there was consent.
  • You honestly, based on reasonable grounds, believed that the alleged victim consented to the sexual touching.
  • Self-defence: if your actions were done from a belief that you considered it necessary in the circumstances to protect yourself, and if the court considers your response as reasonable in the circumstances you perceived it to be at the time.
  • Lawful correction: this can apply in very limited circumstances as a defence, for example, an assault to a child by a parent or pupil by his/her teacher if the correction was reasonable in the manner and warranted in the circumstances. The age and health of the child will be considered as relevant factors in determining this.
  • Unintentional or involuntary touching: this includes spontaneous reflex actions, sleepwalking, post-traumatic loss of control from a head injury, epilepsy, or transient dissociation from a recognised psychological condition.
  • Where the touching was for a medical or hygienic purpose.
  • If the touching would not be classified by a reasonable person as ‘sexual’.
  • Duress and Necessity.

Can a Sexual Touching or Indecent Assault Allegation Affect a Working with Children’s Check Clearance?

A ‘working with children check clearance’ is required in order for someone to be engaged in ‘child-related work’ in NSW.

‘Child related work’ under section 6 of the Child Protection (Working with Children) Act 2012 (NSW) means being engaged in work referred to in subsection (2) involving physical or face-to-face contact with children (under 18-years-of-age) being contact that’s a usual part of (and more than incidental) to the work. It also includes being engaged in work referred to as a child-related role referred to in subsection (3) of this legislation. Please click on the section 6 link to see a list of subsections (2) and (3).

An indecent assault or sexual touching offence in NSW is considered as a “disqualifying offence” under schedule 2 of the Child Protection (Working with Children) Act 2012 (NSW). This means that a person convicted for this offence will not be granted a working with children check clearance under section 18 of the Child Protection (Working with Children) Act 2012 (NSW). It will also mean, that a person with an existing working with children’s check clearance will have the clearance cancelled in those circumstances.

If you’re not convicted of a sexual touching or indecent assault offence in NSW, but you’re charged with it (regardless of the outcome of the court case, or if a non-conviction penalty was imposed), you will then be subject to a risk assessment by the Children’s Guardian to determine if you pose a risk to the safety of children in order to determine whether to grant you a working with children’s check clearance. This is reflected in section 14 of the Child Protection (Working with Children) Act 2012 (NSW).

How Long Will a Sexual Touching or Indecent Assault Conviction Remain on My Record For?

Section 7 of the Criminal Records Act 1991 (NSW) says that a person will always be required to disclose a criminal conviction for an indecent assault offence (and it will always show up on a background check).

However, a person is allowed to answer ‘no’ to a question ‘do you have a criminal conviction’ if you receive a section 10 dismissal or Conditional Release Order without conviction for an indecent assault offence.

On a related topic, see our blog can a streaker be considered a sex offender under the law in NSW.

Assault charges carry heavy penalties.

This article has been written by our own in-house assault lawyer Sydney team.

Published on 17/10/2018

AUTHOR Jimmy Singh

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

View all posts by Jimmy Singh