The Offence of Sexual Touching of a Child Under the Age of 10 in New South Wales

A man has been charged with 21 criminal offences after multiple alleged sexual offences against children at a shopping centre in the south-west of Sydney.

Police say they were called to a shopping centre on Elizabeth Drive in Liverpool at around 3.15pm on Wednesday, 21^st September 2022 in response to allegations a man had inappropriately touched two girls, aged six and nine years.

A short time after attending the location, officers from Liverpool Police Area Commanded arrested a 26-year old man who had been stopped by security officers as he attempted to leave the centre.

He was conveyed to Liverpool Police Station where he was formally charged with stalking or intimidation with intent to cause physical or mental harm and two counts of common assault.

After further inquiries, police charged the man with a further 18 offences, being:

• Four counts of sexually touching a child under the age of 10 years,
• Three counts of sexual touching,
• Two counts of sexually touching a child aged between 10 and 16 years, and
• Nine counts of common assault.

Police claim the man sexually touched and assaulted up to nine people at the shopping centre on the day of his initial arrest.

He was refused bail at the police station before also being refused before Liverpool Local Court on Thursday, 22 December 2022.

Police have been ordered to serve the brief of evidence of the defence and the man is scheduled to appear before the same court on 9 January 2022.

The offence of sexually touching a child under the age of 10 years

Sexual touching of a child under the age of 10 years is an offence under section 66DA of the Crimes Act 1900 which carries a maximum penalty of 16 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You touched a person (the complainant), or incited the complainant to touch themselves, or incited a third person to touch the complainant, or incited the complainant to touch a third person,
2. You did so intentionally, 
3. The touching was sexual, and
4. The complainant was under the age of 10 years. 

What is ‘sexual touching’?

“Sexual touching” is where a person touches another:

(a) with any part of the body or with anything else, or

(b) through anything, including anything worn by the person doing the touching or by the person being touched,

where a reasonable person would consider the touching to be sexual.

What factors are considered when determining whether touching is ‘sexual’?

Matters taken into account when deciding whether a reasonable person would consider the actions to be sexual include:

(a) Whether the area of the body touched or doing the touching is the person’s genital area or anal area or (in the case of a female person, or transgender or intersex person identifying as female) the person’s breasts, whether or not the breasts are sexually developed, or

(b) Whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification, and/or

(c) Whether any other aspect of the touching (including the circumstances in which it is done) makes it sexual.

What are the defences to sexual touching?

It is important to emphasise you can only be found guilty of sexual touching a child under the age of 10 years if the prosecution is able to prove each of the ‘elements’ (ingredients) listed above beyond a reasonable doubt.

In addition to this, there a number of legal defences that may apply.

Section 61HB(3) of the Crimes Act makes clear that touching is not sexual if it occurs solely for genuine medical or hygienic purposes. It is a statutory defence that applies specifically to sexual touching offences.

General legal defences to criminal offences also apply to the charge, including lawful correction of a minor, duress, necessity and self-defence.

Where you are able to raise evidence of a general legal defence, the onus then shifts to the prosecution to prove beyond a reasonable doubt that the defence does not apply to the circumstances of your case.

If the prosecution is unable to do so, you are entitled to an acquittal; in other words, a verdict of not guilty.

Lawful correction of a minor

The defence of lawful correction states that you are not criminally responsible for an offence arising from applying physical force to a child if:

1. You were the child’s parent or were acting for the child’s parent,
2. You applied force to punish the child, and
3. The force was reasonable.

A person ‘acting for a parent’ is:

1. The child’s step-parent, or the parent’s de-facto partner or relative, or a person to whom the parent has entrusted the child’s care, and
2. Who the parent authorises to use physical force to punish the child.

In the case of Indigenous persons, a person acting for a parent includes a person recognised by the Indigenous community as having special responsibilities towards the child.

The factors relevant for determining whether the force was ‘reasonable’ are:

1. The child’s age, health, maturity and other characteristics,
2. The nature of the alleged misbehaviour, and
3. Any other relevant circumstances.

Physical force that is more than trivial or negligible is not reasonable where applied to:

1. The child’s head or neck, or
2. Any other part of the child where the harm is likely to last more than a short period of time.

Duress

Duress is essentially where you were forced to commit the offence.

The defence only applies where your conduct arose due to an imminent threat made to you or someone close to you, in circumstances where the threat was continuing and serious enough to justify your actions.

Necessity

Necessity  is a defence that may apply in emergency-type situations.

It is where you engaged in your actions to avoid serious, irreversible consequences to you or someone you were bound to protect, you honestly and reasonably believed you or the other person were immediate danger and your actions were a reasonable and proportionate response to the danger.

Self-defence

Self-defence is where you believed your actions were necessary to defend yourself or another person, or to prevent the unlawful deprivation of your liberty or that of another person, or to protect your property from being taken, destroyed, damaged or interfered with, or to prevent criminal trespass to your land, or remove a person criminally trespassing, and your conduct was a reasonable response to the circumstances as you perceived them at the time.

Accused of sexual touching?

Police reports of sexual allegations against children can outrage observers and cause the public, and even friends and family members of the accused person, to jump to conclusions of guilt, despite their often vague and questionable content.

In our experience, these charges are frequently brought on the most tenuous of claims, with police adopting a ‘shoot first and ask questions later’ attitude far more readily than in many other offence categories.

Being accused of a sexual offence against a child can be distressing, and it is important to engage the services of experienced, specialist defence lawyers who are able to act empathetically and work thoroughly and dispassionately; carefully analysing the evidence, gathering material and formulating effective case strategies, with a view to accurately advising you of your options and the best way forward, and fighting for a just outcome.

We have been there for countless people who have gone through the most serious of sexual proceedings – cases initially presented by police and prosecutors as strong but are revealed as anything but after the complete picture is unravelled; just have a look through our recent cases to read about some of these.

So if you are accused, call us right away on (02) 9261 8881 and let us take care of the legal side of things and reduce your burden, so you can get on with your life.