Sexual touch conviction successfully appealed in District Court resulting in a non-conviction sentence

Our 57-year-old client is was charged with one count of sexual touching without consent, following an incident with an intoxicated passenger in his taxi in the early hours of the morning.
Sexual touching without consent is an offence under section 61KC of the Crimes Act 1900. It carries a maximum penalty of 5 years imprisonment. Sexual touching is defined under section 61HB of the Crimes Act, which could be committed by any form of touching, with any part of the body or with anything else, that a reasonable person would consider to be sexual in the circumstances.

Without getting a lawyer, he appeared on his own at the Waverley Local Court when he entered a plea of guilty to the Magistrate to the charge. As a result, he was convicted (criminal record against his name) with a 2 year Conditional Release Order upon sentence. Consequently, our client was effectively barred from working as a taxi driver, which was his sole form of income for the last 20 years. This would have dire consequences for our client, being the primary income earner for his family and children.

Our client contacted CDLA when our senior lawyer, Bashir El Kheir of our office provide him with immediate advice before commencing work on appealing the Magistrates decision to convict our client.

With a lot to lose, our client wanted the very best possible shot at avoiding a criminal record, especially in circumstances his and his family’s livelihood dependent upon it.

Our Bashir commenced preparation for the appeal in the District Court. Bashir meticulously prepared the appeal case, which included collecting strong evidence such as a carefully picked expert psychologist report amongst other documents to strengthen our client’s subjective case. Further, our Bashir carefully prepared articulate and persuasive written submissions to assist the District Court Judge in granting the order as sought.

When the appeal hearing came before the Sydney District Court Judge, the Judge had expressed a preliminary view that, after considering the material prepared, that a non-conviction order would not be suitable given the seriousness of the offence and need for deterrence. Bashir fought hard with further persuasive arguments to support our case.
After a back and forth exchange of arguments with the Judge, His Honour was ultimately convinced and agreed with our Bashir to not convict our client.
Accordingly, the Judge was satisfied that our client’s matter could be dealt with by way of a Conditional Release Order without proceeding to recording a conviction.
Our client was extremely relieved as he would now be permitted to return to his primary employment as a taxi driver, without the burden of a serious criminal conviction on his record. This exceptional outcome was made possible by the diligent and thorough work performed by our Bashir, which resulted in a very persuasive case being presented.


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