Aggravated Acts of Indecency

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What are Aggravated Acts of Indecency ?

An aggravated indecent act is one which right minded persons would consider to be contrary to community standards of decency and aggravated by the fact because it is done in the company of another person or persons, the victim is under 16 or under the authority of the alleged offender, or the victim has a serious physical disability or cognitive impairment.

Case law/Jurisdiction

Depending on the different sections of the offence of Aggravated Acts of Indecency the offence is what is known as either a “Table 1” or “Table 2” offence under the relevant legislation, which means it is to be dealt with in the Local Court unless an election is it is to be dealt with on indictment by the Director of Public Prosecutions (DPP).

The nature and elements of the offence were considered in R v Barrass [2005] NSWCCA 131I where it was held for the offence to be proved it does not require that the accused be in the immediate physical presence of the victim.

The Law

The Law in relation to Aggravated Acts of Indecency is found in section s61Oof the Crimes Act 1900 (NSW) which states;

(1) Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, in either case in circumstances of aggravation, is liable to imprisonment for 5 years.

(1A) Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, in either case in circumstances of aggravation, is liable to imprisonment for 3 years.

(2) Any person who commits an act of indecency with or towards a person under the age of 10 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 7 years.

(2A) A person:

(a) who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under the age of 16 years to an act of indecency with or towards that person or another person, and

(b) who knows that the act of indecency is being filmed for the purposes of the production of child abuse material,

is guilty of an offence.

Maximum penalty: imprisonment for 10 years.

(3) For the purposes subsections (1) and (1A),

“circumstances of aggravation” means circumstances in which:

(a) the alleged offender is in the company of another person or persons, or

(b) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or

(c) the alleged victim has a serious physical disability, or

(d) the alleged victim has a cognitive impairment.

What must the prosecution prove?

Since Aggravated Acts of Indecency is a criminal offence, the burden of proof lies on the Prosecution.

The prosecution must prove the Accused’s guilt beyond reasonable doubt.

That is a high standard of proof that the prosecution must achieve before someone can be convicted of Aggravated Acts of Indecency.

To establish Aggravated Acts of Indecency the prosecution must prove each of the following matters beyond reasonable doubt:

  • A person committed an act;
  • That act was indecent;
  • The act was done towards another person;
  • That person did not consent to the act; and
  • The act was committed in circumstances of aggravation.

What constitutes an “act of indecency”?

An indecent act is one which right minded persons would consider to be contrary to community standards of decency. The surrounding circumstances of the act may be considered by the court: Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241.

What are “circumstances of aggravation”?

The Crimes Act provides that the following are circumstances of aggravation:

The alleged offender was in the company of another person or persons

The alleged victim is under the authority of the alleged offender

The alleged victim has a serious physical disability

The alleged victim has a cognitive impairment

What is a “person in authority”?

The Crimes Act provides that a person is “under the authority of another person” if the person is in the care, or under the supervision or authority, of the other person.

What is “cognitive impairment”?

The Crimes Act provides that a person has a “cognitive impairment” if the person has:

An intellectual disability

A developmental disorder

A neurological disorder

Dementia

A severe mental illness

A brain injury

If you are charged with the offence of Aggravated Acts of Indecency what are your options?

National Criminal Lawyers have been successful in defending a number of Aggravated Acts of Indecency charges where the prosecution could not establish each of the elements offence. We have also achieved a number of non-convictions for Aggravated Acts of Indecency.

NCL offer the following options for those who have been charged with Aggravated Acts of Indecency:

  1. We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended;
  2. NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
  3. Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
  4. Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.

Pleading Guilty

If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.

Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.

Our Lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work at increasing the chances of obtaining a non-conviction or section 10.

Maximum Penalties

For Aggravated Acts of Indecency there are a variety of punishments depending on the age of the victim and as to what kind of Aggravated Acts of Indecency has been perpetrated. Those penalties are as follows;

If the victim is under the age of 16 years the offender can be punished with a prison sentence of up to 5 years.

If the victim is the age of 16 years or above the offender can be punished with a prison sentence of up to 3 years.

If the victim is under the age of 10 years the offender can be punished with a prison sentence of up to 7 years.

If the victim is under the age of 16 years and who knows that the act of indecency is being filmed for the purposes of the production of child abuse material the offender can be punished with a prison sentence of up to 10 years.
Please note that the penalties mentioned are reserved for the worse case offending and are unlikely to be the penalty you receive.

Pleading Not Guilty

If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.

A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.

National Criminal Lawyers are experts at these hearings and can advise you on what the police must prove beyond reasonable doubt.

Defences

Some of the possible defences available for those charged with Aggravated Acts of Indecency can include:

  • You did not commit the act;
  • The act was not indecent;
  • The act was not done towards another person;
  • The act was not committed in circumstances of aggravation.

Statistics

The Courts are not bound by statistics however there must be reasonable consistency in sentences. A Magistrate or Judge should have regard to what has been done in other cases. In Green [2011] HCA 45, the plurity judgement of French CJ, Kiefel and Creennan JJ stated:

“Equal Justice” embodies the norm expressed in the terms “equality before the law”. It is an aspect of the rule of law.

For Aggravated Acts of Indecency 38% received a s9 Good Behaviour Bond

Possible Penalty's

In NSW, a court can impose any of the following penalties for an Wounding or grievous bodily harm with intent charge.

  • Prison sentence;
  • Home Detention;
  • Intensive correction order (previously periodic detention);
  • Suspended sentence;
  • Community service order (CSO);
  • Good behaviour bond;
  • Fine; and/or
  • Section 10

However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:

  • Full time Imprisonment;
  • New ICO (ICO) with a home detention condition available;
  • New Community Correction Order (CCO);
  • Fine; or
  • New Conditional release Order (CRO)

Why National Criminal Lawyers?

There are three reasons to choose National Criminal Lawyers:

1. We get the results

We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.

2. We give a Senior Defence Lawyer guarantee

No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.

3. National Criminal Lawyers are the best defenders of your rights

At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.

If you have been charged with any Aggravated Acts of Indecency offence our Team and National Criminal Lawyers are well versed and specialists in having charges either withdrawn and otherwise achieving favourable outcomes.

Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.

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