NSW Police Officer Loses Appeal Against Conviction for Sexual Touching

A sergeant of the New South Wales Police Force with 25 years of experience has lost a District Court Appeal against his conviction for sexual touching.

District Court Judge, Jennie Girdhan, has thrown out the appeal by Sergeant Ronald Tarlington, who was found guilty after a Local Court hearing in February 2020 where he was found guilty of grabbing his female colleague’s breast.

Despite being given the relatively lenient penalty of an 18-month conditional release order, officer Tarlingron launched an appeal against his conviction and sentence.

But the appeal has been refused by Judge Girdham, who found there was no doubt the officer had committed the offence, completely rejecting his assertion that friendly banter before a breast grab meant the woman had consented.

The court heard that a colleague was sitting on Sergeant Tarlington’s lap at a pub one evening in late 2019, when the more senior officer moved his right hand inside her jacket and squeezed her nipple, growled and had a crooked smile on his face.

The female officer reported the incident to several colleagues immediately afterwards, and the entire incident was captured on CCTV footage.

Too lenient?

Given that the offence of sexual touching of an adult carries a maximum penalty of 5 years in prison in the District Court, or 2 years if finalised in the Local Court, many might think Tarlington was treated with leniency during the sentencing proceedings, and also by his employer who suspended rather than terminated him, despite ongoing problems within the NSW police force involving high levels of sexual harassment, bullying, intimidation and serious criminal conduct including sexual assault and child sex offences.

Last month, the Law Enforcement Conduct Commission (LECC) released its review of how police managed and investigated workplace equity matters, including bullying, discrimination, harassment, and vilification between 2017 and 2018.

LECC report on bullying and harassment

The numbers in the report are alarming.  The LECC found that in 21 percent of investigations, the complainants suffered medical and psychological harm,  6% percent of investigations exceeded the recommended time limit for completion.

The LECC further found that female officers were targeted more often than males, and a significant number of officers feared reprisals if they lodged a complaint about a colleague.

The review found that 33 percent of investigations related to bullying and 27% to sexual harassment, with almost half of the officers who were the subject of complaints being of the rank of sergeant or higher.  Almost 80% of all complaints were against males.

This is on the back of the 2019 ‘Brocerick Review’, after which the NSW Police Force vowed to overhaul its practices and change its culture.

The ‘Broderick Review’

The ‘Broderick Review’ was undertaken by former Australian Sex Discrimination Commissioner, Elizabeth Broderick AO. She was tasked with examining the impact the police force’s internal culture is having on women trying to move up through the ranks. She surveyed almost  3500 officers online and sat down with focus groups and individuals.

Her report concluded that that women were forced to conform to a “masculine culture” and that one-in-three women had reported being sexually harassed by a colleague in the previous  five year period, with only 13% of men reporting the same.

At the time police chief Mick Fuller vowed to implement change within the force.

But it is difficult to see any change actually occurring when officers, such as Ronald Tarlington, remain on the force, even when they have been charged with a serious sexual offence.

Internal investigations are not impartial or independent

Usually when an officer engages in misconduct, irrespective of whether a colleague or a member of the general public has made the complaint, in the first instance, the complaint is usually investigated by the internal Professional Standards Command unit, which is essentially a peer-review system, or officers investigating their own. This is hugely problematic because it is not independent or impartial and therefore can potentially perpetuate cover-ups, bullying and intimidation.

Furthermore, officers might be relieved of duty while investigations are underway, but as is the case with Ronald Tarlington, who was suspended on full pay, the consequences are hardly severe and so there is no real incentive (for example, the risk of suspension without pay, or dismissal) for officers to behave more appropriately and in line with both Australian workplace standards and community expectations.

Because these internal investigations can be drawn out – the LECC found that way more than half internal investigations exceed the recommended timeframe for resolution – officers remain on the payroll, funded by taxpayers, until resolution is clear.

The Offence of sexual touching in New South Wales

Section 61HB of the Act defines ‘sexual touching’ touching another person with any part of the body or with anything else, or through anything, including anything worn by either person, in circumstances where a reasonable person would consider the touching to be sexual.

The section provides that the matters to be taken into account when deciding if an act is sexual include whether:

• the area of the body touched or doing the touching is the person’s  genital area, anal area or – in the case of a female person, or a transgender or intersex person identifying as female – the person’s breasts, or
• the alleged offender’s actions are for sexual arousal or sexual gratification, or
• any other aspect of the touching, or the circumstances surrounding the touching, make it sexual.

Touching is not sexual if done for genuine medical or hygienic purposes.

Aggravated sexual touching

Section 61KD of the Act prescribes a maximum penalty of seven years in prison where sexual touching occurs in circumstances of aggravation; in other words, where:

• the alleged offender is with another person or persons, or
• the alleged victim is (whether generally or at the time of the incident) under the alleged offender’s authority, or
• the alleged victim has a serious physical disability, or
• the alleged victim has a cognitive impairment.

Sexually touching a person aged between 16 and 18

The age of consent in NSW is generally 16 years, which means a person under that age cannot legally consent to sexual activity.

The corollary is that those who are at least 16 years of age can generally consent.

An exception to that general rule applies to persons who are aged at least 16 years but less than 18 years.

Section 73A of the Act criminalises any act of sexually touching a person of that age where a relationship of ‘special care’ exists.

Such a relationship arises where the alleged offender:

• is the alleged victim’s parent, grandparent, step-parent, guardian or authorised carer, or the de facto partner of such a person, or
• is a member of the teaching staff at the alleged victim’s school, or
• has an established personal relationship with the alleged victim in connection with the provision of religious, sporting, musical or other instruction, or
• is the alleged victim’s a custodial officer, or
• is the alleged victim’s health professional.

The maximum penalty is four years’ imprisonment where the alleged victim is at least 16 but less than 17, or two years where at least 17.

An exception to the offence is where the two are married.

What is consent?

The definition of consent which applies to sexual touching and a number of other sexual offences is now contained in section 61HE of the Act, which replaced section 61HA earlier this month.

Section 61HE provides that a person consents to sexual activity – such as sexual touching – if he or she freely and voluntarily agrees to it.

The section proceeds to state that an alleged offender knows there is no consent if he or she engages in sexual activity, or incites anyone to do so, in circumstances where he or she:

• knows the alleged victim does not consent, or
• is reckless as to whether the alleged victim consents, or
• has no reasonable grounds to believe the alleged victim consents.

In deciding whether there is consent, the court must consider any steps taken by the alleged offender to ascertain whether there is consent.

The court cannot take into account any self-induced intoxication by the alleged offender.

The section makes clear there is no consent where the alleged victim:

• does not have the capacity to consent due to factors such as their age (outlined above) or cognitive ability, or
• does not have the opportunity to consent because they are unconscious or asleep, or
• consents because of threats of force or terror, or
• consents due to being unlawfully detained, or
• consents because of a mistaken belief:

(a) as to the identity of the alleged offender,

(b) that the two are married,

(c) that the activity is for health or hygienic purposes, or

(d) that arises through any fraud.

The grounds upon which it may be established that the alleged victim did not consent include that he or she:

• was substantially intoxicated,
• was intimidated, coerced or threatened in any way, or
• was under the authority or trust of the alleged offender.

The section further makes clear that a failure to resist the activity not in itself to be regarded as establishing consent.

Many would argue that it’s appropriate for the force to take no action until the legal process is complete, however, others also say that much stronger action needs to be taken in order to send a clear message about what behaviour will be tolerated and what won’t otherwise real change will never occur.