The Law, Penalties and Defences for the Offence of Sexual Act in New South Wales

A New South Wales man is facing court over allegations he performed a sexual act in front of a mother and her young daughter inside Kmart store in St Marys on 23 September 2022.

The mother immediately reported the matter to police before taking to social media to allege the man followed her and her two-year old daughter and masturbated in front.

Officers attached to Nepean Police Area Command attended the store and seized CCTV footage, before appealing to the public for assistance.

A 48-year old man from Glenbrook was identified as a suspect, arrested and charged with one count of ‘sexual act’ and one of ‘sexual act relating to a child under the age of 10 years’.

He was granted conditional bail and is required to attend Penrith Local Court later this month to face the allegations.

It should go without saying that the man is presumed to be innocent until and unless the allegations against him are proven beyond a reasonable doubt in a court of law.

The offence of ‘sexual act’

In December 2018, the offence of ‘sexual act’ replaced ‘act of indecency’ in New South Wales.

The change was based on recommendations by the Royal Commission into Institutional Responses to Child Sexual Abuse and formed part of a suite of reforms designed to modernise legal terminology and bring sexual offences themselves more in line with community expectations.

The offence of sexual act in New South Wales

Sexual act is an offence under section 61KE of the Crimes Act 1900 which carries a maximum penalty of 18 months in prison.

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

1. You carried out a sexual act with or towards another person (the complainant), or incited the complainant to carry out a sexual act with or towards you, or incited a third person to carry out a sexual act with or towards the complainant, or incited the complainant to carry out a sexual act with or towards a third person,
2. You did so intentionally,
3. You did so without the consent of the complainant, and
4. You knew the complainant was not consenting.

What is a ‘sexual act’?

‘Sexual act’ is defined as any act, other than sexual touching, carried out in circumstances where a reasonable person would consider it to be sexual.

Matters considered when deciding whether an act is sexual include:

1. Whether the genital or anal area is involved, or in the case of a female, or a transgender or intersex person identifying as female, the breasts, 
2. Whether the act is for sexual arousal or sexual gratification, or
3. Whether any other aspect or circumstance makes it sexual.

What are some examples of a ‘sexual act’?

Conduct which may amount to a sexual act includes:

• masturbating in front of the complainant,
• inciting the complainant to masturbate,
• carrying out a simulated sexual act, and
• inciting the complainant to carry out a simulated sexual act.

What about medical procedures?

An act is not sexual if carried out for a genuine medical or hygienic purpose.

The offence of aggravated sexual act

Aggravated sexual act is an offence under section 61KF of the Crimes Act 1900 which carries a maximum penalty of 3 years in prison.

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

1. You carried out a sexual act with or towards another person (the complainant), or incited the complainant to carry out a sexual act with or towards you, or incited a third person to carry out a sexual act with or towards the complainant, or incited the complainant to carry out a sexual act with or towards a third person,
2. You did so intentionally,
3. You did so without the consent of the complainant, 
4. You knew the complainant was not consenting, and
5. The offence occurred in circumstances of aggravation.

The definitions and matters relevant to the offence of sexual act apply equally to this offence.

The offence occurred ‘in circumstances of aggravation’ if one or more of the following were present:

1. You were with another person or persons, 
2. The complainant was under your authority, 
3. The complainant had a serious physical disability, or
4. The complainant had a cognitive impairment.

The offence of sexual act with child aged 10 to 16 years

Sexual act with a child aged 10 to 16 years is an offence under section 66DD of the Crimes Act 1900 which carries a maximum penalty of 2 years in prison.

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

1. You carried out a sexual act with or towards another person (the complainant), or incited the complainant to carry out a sexual act with or towards you, or incited a third person to carry out a sexual act with or towards the complainant, or incited the complainant to carry out a sexual act with or towards a third person,
2. You did so intentionally, and
3. The complainant was aged at least 10 years but less than 16 years.

Again, the definitions and matters relevant to the previously outlined offences apply equally to this offence.

The offence of aggravated sexual act with child aged 10 to 16 years 

Aggravated sexual act with a child aged 10 to 16 years is an offence under section 66DE of the Crimes Act 1900 which carries a maximum penalty of 2 years in prison.

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

1. You carried out a sexual act with or towards another person (the complainant), or incited the complainant to carry out a sexual act with or towards you, or incited a third person to carry out a sexual act with or towards the complainant, or incited the complainant to carry out a sexual act with or towards a third person,
2. You did so intentionally,
3. The complainant was aged at least 10 years but less than 16 years, and
4. The offence occurred in circumstances of aggravation.

Again, the definitions and matters previously outlined apply equally to this offence.

The circumstances of aggravation relevant to this offence are:

1. At the time of, or immediately before or after your conduct you intentionally or recklessly inflicted actual bodily harm on the child or another person present or nearby, 
2. At the time of, or immediately before or after your conduct you threatened to inflict actual harm on the child, or another person present or nearby by means of an offensive weapon or instrument, 
3. You were in the company of another person or persons, 
4. The child was under your authority, 
5. The child had a serious physical disability, 
6. The child had a cognitive impairment, 
7. You took advantage of the child being under the influence, 
8. Before or after your conduct you deprived the child of his or her liberty, 
9. You broke into a dwelling-house or other building intending to commit a ‘serious indictable offence’. 

‘Actual bodily harm’ is that which is more than ‘transient or trifling’ and includes lasting scratches, bruises and abrasions.

You were ‘reckless’ if you foresaw the possibility of inflicting actual bodily harm but went ahead with your actions regardless.

An ‘offensive weapon or instrument’ is:

1. A dangerous weapon,
2. Anything made or adapted for offensive purposes, or
3. Anything used, intended for use or threatened to be used for offensive purposes, even though it is not ordinarily used for such purposes or ordinarily capable of causing harm.

A ‘dangerous weapon’ is:

1. A firearm or imitation firearm,
2. A prohibited weapon, or
3. A spear gun.

A ‘serious indictable offence’ is one that carries a maximum penalty of at least 5 years in prison

The offence of sexual act with child under 10 years of age

Sexual act with a child under the age of 10 years is an offence under section 66DC of the Crimes Act 1900 which carries a maximum penalty of 7 years in prison.

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

1. You carried out a sexual act with or towards another person (the complainant), or incited the complainant to carry out a sexual act with or towards you, or incited a third person to carry out a sexual act with or towards the complainant, or incited the complainant to carry out a sexual act with or towards a third person,
2. You did so intentionally, and
3. The complainant was under the age of 10 years.

Again, the definitions and matters previously outlined apply equally to this offence.

The offence of sexual act with child under 16 years for production of child abuse material

Sexual act with a child under 16 years for the production of child abuse material is an offence under section 66DF of the Crimes Act 1900 which carries a maximum penalty of 10 years in prison.

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

1. You carried out a sexual act with or towards another person (the complainant), or incited the complainant to carry out a sexual act with or towards you, or incited a third person to carry out a sexual act with or towards the complainant, or incited the complainant to carry out a sexual act with or towards a third person,
2. You did so intentionally, and
3. You knew the act was being filmed for the purpose of producing child abuse material

Once again, the definitions and matters previously outlined apply equally to this offence.

‘Child abuse material’ is that which depicts or describes in a way that reasonable persons would regard as being offensive:

1. The private parts of a person who is, or appears to be or is implied to be, a child, or
2. A person who is, or appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or engaged in or apparently engaged in a sexual pose or sexual activity, or in the presence of another who is engaged in or apparently engaged in a sexual pose or sexual activity.

In determining whether material is offensive to a reasonable person, the following matters must be taken into account:

• the standards of morality, decency and propriety accepted by reasonable adults,
• the literary, artistic or educational merit (if any) of the material,
• the journalistic merit (if any) of the material, and
• the general character of the material.

Legal defences to sexual act charges

It is important to be aware that in addition to having to prove each of the listed ‘elements’ (or ingredients) of any sexual act charge brought against you, the prosecution must also disprove any legal defence you are able to raise – and it must do this beyond reasonable doubt.

If the prosecution is unable to disprove the raised defence to the required standard, you are entitled to an ‘acquittal’ (a not guilty verdict).

Legal defences to sexual act charges include duress, necessity, automatism, mental illness, self-defence and lawful correction of a child.

Accused of committing a ‘sexual act’?

If you have been accused of committing a sexual act and are going to court, call Sydney Criminal Lawyers 24/7 on (02) 9261 8881 to arrange a free first consultation with a lawyer who is vastly experienced in defending and defeating allegations of a sexual nature.