Sexual Offences and Sexual Assault

Sexual Offences and Sexual Assault

What is Indecent Assault?

Under s. 323 of the Criminal Code Compilation Act 1913 (WA) (“Criminal Code”), a person who unlawfully and indecently assaults another person is guilty of a crime and is liable to imprisonment for five (5) years. The term “indecent” refers to any behaviour of a sexual nature, occurring before during or after the offence, that involves conduct with which an ‘ordinary person’ would consider to be contrary to community standards of decency – R v Harkin (1989) 38 A Crim R 296.

What acts would satisfy a test of ‘sexual nature’?

Touching another person, of itself, will not amount to an act of indecency (R v Sutton [1977] 1 WLR 1086) however, if that touching was to provide the accused with sexual gratification it will be indecent.

What is Aggravated Indecent Assault?

 

Under s. 319(1) of the Criminal Code, aggravated indecent assault is of a more serious nature than the above, indecent assault. A person who unlawfully and indecently assaults another person in circumstances of ‘aggravation’ is guilty of a crime and is liable to imprisonment for 7 years. Circumstances of aggravation will occur when immediately before or during or immediately after the commission of the offence the offender:

  1. is armed with any dangerous or offensive weapon or instrument or pretends to be so armed; or
  2. is in company with another person or persons; or
  3. does bodily harm to any person; or
  4. does an act which is likely seriously and substantially to degrade or humiliate the victim; or
  5. threatens to kill the victim.

Circumstances of aggravation will also occur if the victim is of, or over the age of 13 years and under the age of 16 years.

Are there any defences for this offence?

A defence justifies your conduct or gives you an excuse as to why your conduct was not unlawful. If the victim of the act has consented to the alleged behaviour, then this will act as a defence. Consent is the free and voluntary consent to an act. Consent is defined under s. 319(2) of the Criminal Code and cannot be obtained by force, threats, intimidation, deceit or any fraudulent means. Even if the victim offered no resistance to the alleged indecent behaviour, this will not constitute consent.

What should I do if I have been charged with this offence?

If you have been charged with this offence, you should seek legal assistance from WN Legal. Our Perth Criminal Lawyers have extensive expertise in this area of law and will guide you through this process.

What is sexual penetration without consent?

Sexual penetration without the consent of the victim is a crime under s. 325 of the Criminal Code. A person who sexually penetrates another person without their consent is guilty of a crime and is liable to 14 years’ imprisonment. The term of imprisonment may increase to 20 years where the crime was committed under aggravated circumstances. Circumstances of aggravation will occur when immediately before or during or immediately after the commission of the offence the offender:

  1. is armed with any dangerous or offensive weapon or instrument or pretends to be so armed; or
  2. is in company with another person or persons; or
  3. does bodily harm to any person; or
  4. does an act which is likely seriously and substantially to degrade or humiliate the victim; or
  5. threatens to kill the victim.

What constitutes sexual penetration?

Under s. 319(1) of the Criminal Code, to ‘sexually penetrate’ is to:

  1. Penetrate the vagina (including the labia majora), anus, and urethra of any person by any means of any part of the body or an object. This does not include when the penetration is performed for a lawful medical purpose.
  2. Manipulate any part of the body of the victim to cause penetration of the vagina, anus and urethra of the offender.
  3. Introduce any part of the penis into the mouth of the victim.
  4. Engage in oral sex, fellatio or cunnilingus.

The accused can be either male or female. The victim can also be male or female.

Possession of Child Pornography

Being charged with the involvement, possession or distribution of child pornography is an extremely serious offence and imposes a maximum 10-year sentence of imprisonment for offenders. It can result in either federal or state charges, or both depending on the particular facts of the case. Under s. 217A of the Criminal Code the term ‘child pornography’ means material that, in a way likely to offend a reasonable person, describes, depicts or represents a person, or part of a person, who is, or appears to be a child engaging in sexual activity or in a sexual context. ‘Material’ for the purposes of this section of the Criminal Code will include:

  1. any object, picture, film, written or printed matter, data; or
  2. any other thing and anything from which text, pictures, sound or data can be produced or reproduced, with or without the aid of anything else;

What materials constitute child pornography?

In the case of Regina v Oliver , a scale was created so that any material which included indecent images of children could be graded. This five-point scale is now commonly referred to as the ‘Oliver Scale’ or a ‘COPINE Scale’. The Oliver Scale stipulates the seriousness of the content of the material and will be taken into account during the sentencing of an offender. For example, an individual who is in possession of a large amount of material that would be classified as COPINE 3,4 or 5, a jail sentence is the starting point.

How do the Western Australian Police find pornographic material?

Police may find accounts and IP addresses of offenders when websites posting or promoting illegal material are shut down. Many of these sites charge users for access, and retain a record of their personal information and IP address. Subsequently, computers are searched and seized and the Police are able to track down those who are/have been involved.

What do I do if I have been charged with child pornography offences?

Firstly, you should not make any statements to the police, outside persons or any other individuals regarding the charges. Anything that you say, can be used as evidence to support criminal charges. If you have been charged with this offence, you should seek legal assistance from WN Legal. Our Perth Criminal Lawyers have extensive expertise in this area of law and will guide you through this process.