Police have charged a 64-year-old man after they finalised an investigation into allegations of sexual touching which occurred over more than two decades. The allegations are that in March 2022, the man inappropriately touched a 66-year-old woman at a business on Elizabeth Street in Liverpool.

It was alleged that in October 2022 he touched the woman inappropriately after he followed her to her car at a shopping centre on Macquarie Street in Liverpool. He also touched her inappropriately again at the same shopping centre later that month.

Police in the Liverpool City Police Area Command were notified and commenced an investigation into the incidents on 29 December 2022. After their investigation, police were able to identify three other women who were alleged to have been victims of similar offences by the same man in Liverpool since 2002.

Police arrested the man at a business on Elizabeth Street in Liverpool in the early morning hours. He was remanded into custody at Liverpool Police Station and was charged with the following four offences:

• Assault with act of indecency – two counts
• Common assault – three counts
• Sexually touch another person without consent – three counts
• Stalk/intimidate intend fear physical etc harm

The man was granted conditional bail and is to appear at Liverpool Local Court on 14 June 2023.

Why was the man charged with assault with act of indecency?

It was interesting that the man was able to be charged with what was formerly known as indecent assault under section 61L. This offence has been replaced with new offences in ss 61KC (sexual touching) and 61KD (aggravated sexual touching) of the Crimes Act 1900 (NSW), taking effect from 1 December 2018. However, as the man has been charged with offences which go back to 2002, the offence of indecent assault was still in force at the time. Pursuant to Crimes Act 1900, Sch 11, Pt 35, the offence of indecent assault continues to apply to offences committed or alleged to have been committed before 1 December 2018.

INDECENT ASSAULT

What is indecent assault?

Section 61L of the Crimes Act 1900 provided:

Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years.

Remember, a person can only be charged with indecent assault for indecent acts committed before 1 December 2018.

What are the elements of indecent assault?

The elements which must each be proved beyond a reasonable doubt by the prosecution are:

1. The accused assaulted the victim,
2. The assault was indecent,
3. The victim did not consent to the assault, and
4. The accused
   1. knew that the victim did not consent, or
   2. realised that there was a possibility that the victim did not consent but the accused went ahead anyway, or
   3. the accused did not care whether the victim did not consent.

Along the spectrum of seriousness, indecent assault is not considered as serious as a sexual assault offence. However, it is still considered to be a serious offence.

 What does “indecent” mean?

“Indecent” means “contrary to the ordinary standards of respectable people in the community”. 

For an assault to be indecent it must carry with it a sexual overtone. For example, if the accused touches the victim’s body, or the accused uses their body to touch the victim in a way which suggests a sexual connotation, then it is an indecent act.

The offence does not relate to any acts of penetration or sexual intercourse. It could involve inappropriate fondling or touching of the genitals or breast of a female, or the genitals or anus of a male.

Aggravated indecent assault

Pursuant to section 61M of the Crimes Act, a person can be charged with aggravated indecent assault if he or she has committed indecent assault in circumstances of aggravation, which include:

• If the offence was committed in company (around other people).
• If the victim was under the accused’s authority.
• If the victim had a cognitive impairment.
• If the victim had a serious physical disability.
• If the victim was under 16 years of age.

What are the penalties for indecent assault?

Available defences

• That there was no assault.
• That there was consent (however, minors cannot consent to sexual acts).

COMMON ASSAULT

What is common assault?

Common assault is an offence pursuant to section 61 of the Crimes Act 1900. It is any act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful violence. Hence, fear is one of the main drivers of assault.

An example of common assault may include a physical act, such as spitting, throwing an object at a person which hits them, or a punch, slap, or push. Crucially, it can also include an act which involves no physical contact to the victim. For example, non-physical assault could involve raising a hand or fist to the victim in a threatening manner or throwing an object in the victim’s direction. In these instances, the victim’s fear of physical contact is at the crux of the assault.

What are the elements of common assault?

The four elements which must each be proved beyond a reasonable doubt by the prosecution are:

1. That the accused did an act which intentionally, or recklessly, causes another person (the victim) to apprehend immediate and unlawful violence. (The act can involve physical contact or no physical contact.)
2. That the victim did not consent to the accused’s conduct.
3. That the accused’s conduct was intentional or reckless, as in the accused realised that the victim may fear that the accused would subject the victim to immediate and unlawful violence, and the accused took that risk anyway.
4. That the accused had no lawful excuse for the conduct.

What are the penalties for assault?

There are several custodial and non-custodial sentences that the court may impose if appropriate.

SEXUAL TOUCHING

What does sexual touching mean?

The meaning of “sexual touching” is given in section 61HB of the Crimes Act 1900. It means touching another person in circumstances where a reasonable person would consider the touching to be sexual.

The touching aspect can be done with any part of the body or with anything else, or through anything, including anything worn by the person doing the touching or by the person being touched. 

There are several matters that are considered to determine whether the touching is considered sexual, such as:

• The area of the body being touched or doing the touching is the person’s genitals, anus, or breasts. This is so whether the breasts are sexually developed, and regardless of the person’s gender or sex.
• Whether the person who is doing the touching is doing it for sexual arousal or gratification.
• Whether there is any other aspect of the touching which makes it sexual. This includes the circumstances in which it is done. This means that touching which is done solely for proper medical or hygienic purposes is not considered sexual touching.

What is the offence of sexually touch another without consent?

Pursuant to section 61KC of the Crimes Act 1900, the elements which must be established by the prosecution beyond a reasonable doubt are:

• The accused intentionally sexually touches the person making the complaint (complainant), and
• The accused did so without the consent of the complainant, and
• The accused knew that the complainant did not consent.

Sexual touching can also be established if:

• The accused incites the complainant to sexually touch the accused person, or
• The accused incites a third person to sexually touch the complainant, or
• The accused incites the complainant to sexually touch a third person,

and it was intentional, without consent, and the accused knew the complainant did not consent.

What is the offence of stalk/intimidate?

The maximum penalty for sexual touching is 5 years of imprisonment.

What are the penalties for sexual touching?

STALKING OR INTIMIDATION

The offence of stalk or intimidate intending to cause fear of physical or mental harm (domestic violence offence) comes within section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. This section states that a person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.

The prosecution must prove the following elements beyond a reasonable doubt for a person to be found guilty of intimidation:

1. That the accused did conduct or actions which was intimidation. Intimidation under Section 7 means that the accused acted in a way which caused the victim to reasonably fear injury or violence towards them or others in the domestic relationship, or damage to property. The prosecution does not need to prove that the victim feared physical or mental harm.
2. That the accused did the intimidation with the intention of causing the victim to fear physical or mental harm. This intention is proved if the prosecution can show that the accused knew that the intimidating conduct would cause the victim to fear the accused.

To determine whether the accused’s alleged behaviour amounted to intimidation, the court will look at any evidence of previous patterns of violence, especially any violence that could be considered a domestic violence offence.

What are the penalties for stalking/intimidation?

There are several custodial and non-custodial sentences that the court may impose if appropriate.

Pannu Lawyers extensively practices in Family Law, Criminal Law and regularly appear at the Federal Circuit and Family Court of Australia, which has court locations in Parramatta (NSW) and Dandenong (VIC). We are conveniently located within a walking distance from the Blacktown train station and can accommodate after hour appointment to suit you. Call our office on 02 9920 1787 or 1300 VAKEEL to discuss your matter in a confidential manner.