By Sahar Adatia and Jimmy Singh.
Last week, a man and a woman were charged after allegedly being caught performing a sexual act near a primary school in Sydney’s inner west.
The Weekly Times reports that at about 8:30am on 17 February 2020, police were called to Weekley Park in Stanmore after the couple was allegedly seen publicly performing the act.
With the park directly across from St Michael’s Catholic Primary School, concern was raised that children would be in sight of the incident as they began to arrive for the school day.
In fact, NSW Police released a statement saying “a number of parents and children were in or near the park” at the time.
It wasn’t long before officers from Inner West Police Area Command arrived at the scene.
Officers Arrest Man and Woman, Also in Possession of Drugs
Officers arrested a 39-year-old man and a 31-year-old woman for the act.
They carried out a search (https://www.weeklytimesnow.com.au/couple-arrested-after-alleged-sex-act-near-sydney-primary-school/news-story/5b456af3fc7185e860f2a1aceb62912e) on both the man and the woman, during which officers also allegedly discovered methamphetamines and cannabis in the man’s possession.
The couple was then taken to Newtown Police Station.
The man was charged (https://www.police.nsw.gov.au/news/news_article?sq_content_src=%2BdXJsPWh0dHBzJTNBJTJGJTJGZWJpenByZC5wb2xpY2UubnN3Lmdvdi5hdSUyRm1lZGlhJTJGODMwNjUuaHRtbCZhbGw9MQ%3D%3D) with wilful and obscene behaviour, offensive conduct and possessing prohibited drugs.
He was granted bail and is to face Newtown Local Court on 24 February.
The woman was charged with offensive behaviour.
She was also granted bail and will face the same court on 12 March.
For further details on offensive conduct charges, call to speak with any of our specialist criminal lawyers in Parramatta (https://www.criminaldefencelawyers.com.au/)and Sydney.
Is it a Crime to Perform a Sex Act Near a School in NSW? (https://www.criminaldefencelawyers.com.au/blog/what-are-the-penalties-and-defences-for-an-offensive-conduct-charge-in-nsw/)
It carries a maximum sentence or penalty of 3-months jail or $660 fine in NSW for conducting yourself in an offensive manner in or near (or within view or hearing from) a public place or a school, prescribed by section 4(1) Summary Offences Act 1988 (NSW) (https://www.legislation.nsw.gov.au/#/view/act/1988/25/part2/div1/sec4).
This offence also carries a criminal conviction unless a court is convinced enough to instead impose a sentence under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
If a court agrees to impose a section 10 non-conviction sentence (https://www.criminaldefencelawyers.com.au/criminal-law/section-10-dismissal/) to an offender of this crime, even after pleading guilty, then it will not result in a criminal conviction against his/her name, nor will there be a fine or jail sentence.
How can a person accused of this crime be found guilty in court? To be found guilty, the prosecution bare the onus of proving beyond reasonable doubt, each of the following elements in court:
- The accused person conducted himself/herself in an offensive manner; and
- This occurred in or near a public place or school (or it occurred within view or hearing of the same).
If the prosecution fail to prove any one of the above elements, the court will be required to return a ‘not guilty’ verdict, dismissing the charge and acquitting the accused person.
Click here for an outline on the defences for offensive conduct charges (https://www.criminaldefencelawyers.com.au/blog/what-is-obscene-exposure-and-offensive-conduct/) are outlined., it’s important to understand what ‘offensive conduct’ is under the law.
The law considers conduct to be offensive if a reasonable person (whether present or not at the scene) would feel disgust, anger, resentment or outrage.
How does the court determine this issue of whether a reasonable person would feel this way? The court looks at established principles of law, for example, a ‘reasonable person’ is considered NOT to be thin-skinned.
The court will assess the situation by asking itself, “had there been a hypothetical ordinary reasonable person at the scene, would such a person have been able to see or hear the conduct, and would he/she have been offended by it?”
This means, that there’s no requirement that the hypothetical reasonable person be present at the scene. Nor does the prosecution have to prove this aspect.
In assessing whether such a person would have been offended, community standards today must be considered by asking the question, whether such conduct is acceptable in today’s society?
Other factors relevant in determining whether it is offensive includes the place and conduct alleged.
A ‘public place’ is defined as a place (whether or not covered by water), or a part of premises, that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons, but does not include a school.
A ‘school’ has several meanings. These include:
- A government schoolor a registered non-government school within the meaning of the Education Act 1990 (https://www.legislation.nsw.gov.au/#/view/act/1990/8), and
- A school providing education (whether secular or religious) at a pre-school or infants’ school level or at a primary or secondary level, and
- A place used for the purposes of an establishment commonly known as a child-minding centre or for similar purposes, and
- The land, and any building, occupied by or in connection with the conduct of such a school or place.
It should be noted that this offence does not include incidents of accidental exposure, including those that may have occurred as a result of a wardrobe malfunction. This form of public display is considered unintentional.