Aggravated indecent assault

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What is Aggravated Indecent Assault ?

Aggravated Indecent assault is assault in circumstances of indecency which is aggravated because it is done in the company of another person or persons, the victim is under the authority of the alleged offender, or the victim has a serious physical disability or cognitive impairment. Aggravated Indecent Assault is characterised as a sex crime and has significant overlap with offences referred to as sexual assault.

Case law/Jurisdiction

An offence of Aggravated Indecent Assault is what is known as a “Table 1” 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 Li (1997) 4 Crim LN 46 [15] which stated It is sufficient if the prosecution alleges and proves at least one particular circumstance of aggravation provided any circumstance of aggravation is proved beyond reasonable doubt

The Law

The Law in relation to Aggravated Indecent Assault is found in section 61L of the Crimes Act 1900 (NSW). Which states: –

“Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency in circumstances of aggravation, Is liable to imprisonment for up to 10 years”.

What is an assault?

An assault is any act which intentionally or recklessly causes another person to fear immediate and unlawful violence. It is not necessary that the complainant be physically touched.

What is an “act of indecency”?

An indecent act is one which right minded persons would consider to be contrary to community standards of decency. The assault and the act of indecency do not need to be separate acts.

What are “circumstances of aggravation”?

Circumstances of aggravation are circumstances in which:

The alleged offender is 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 constitutes “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


A severe mental illness

A brain injury

What must the prosecution prove?

Since Aggravated Indecent Assault 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 Indecent Assault.

To establish Aggravated Indecent Assault the prosecution must prove each of the following matters beyond reasonable doubt:

  • that the accused assaulted the complainant, and
  • that the assault was indecent, and
  • that the assault was without the consent of the complainant, and
  • that the accused knew that the complainant was not consenting, or he/she realised that there was a possibility that the complainant was not consenting, but he/she went ahead anyway, or he/she did not even think about whether the complainant was consenting or not — in other words, he/she did not care whether the complainant was consenting.


  • The alleged offender is in the company of another person or persons; or
  • The victim is under the age of 16 years; or
  • The alleged victim is under the authority of the alleged offender; or
  • The alleged victim has a serious physical disability; or
  • The alleged victim has a cognitive impairment.

If you are charged with the offence of Aggravated Indecent Assault what are your options?

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

NCL offer the following options for those who have been charged with Aggravated Indecent Assault:

  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 the offence of Aggravated Indecent Assault offenders 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.


Some of the possible defences available for those charged with Aggravated Indecent Assault can include:

  • You did not assault the person;
  • You did not commit an indecent act;
  • The act was not indecent;
  • The act was not done towards another person;
  • The act was not committed in circumstances of aggravation.
  • If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue “Duress”;
  • If your actions were necessary to prevent a greater harm from occurring, you may have the defence of “Necessity”;
  • If you were defending yourself or another OR yours or another’s property you may have a Defence of “Self-Defence” even in situations where “Pre-Emptive Force” is used. Moreover, at times there be a circumstances where you may argue that there was “No duty or need to retreat”.


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 Indecent Assault offenders depending on how aggravated 50% received full time imprisonment.

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)

Case Studies

Our client was charged with aggravated indecent assault (x2) against his daughter and his granddaughter claim he breached his position of trust and authority over them. The offences against his daughter were said to have occurred in the year 2000. The offences against the granddaughter were alleged to have been more recent. The matter proceeded to hearing and after legal argument, we succeeded in having the hearings separated. The first trial where the granddaughter was the complainant proceeded. After extensive cross examination the magistrate returned a verdict of not guilty. After consideration by the Police Prosecutions, a it was determined not to run the second hearing involving our client’s daughter and the charges were discontinued. This was a good result especially for a case involving sexual offences such as aggravated indecent assault.

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 Indecent Assault 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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