Charged with sexual touching in NSW.

The legislative source.

The offence has four elements: (a) the accused touched the complainant (or incited touching), (b) the touching was sexual within the meaning of s 61HB, (c) the complainant did not consent, and (d) the accused knew that the complainant did not consent.

Whether touching is "sexual" is judged by the reasonable-person standard. The factors the court weighs include the area of the body touched (genital, anal or breast areas are presumptively sexual), whether the conduct was for sexual arousal or gratification, and whether any other aspect of the touching or the circumstances make it sexual.

Consent is governed by sections 61HI to 61HK. The 2022 affirmative-consent reforms require the accused to have said or done something to ascertain whether the complainant consented; knowledge of non-consent can be made out where the accused did not take such steps.

Penalties and likely outcomes.

Range of outcomes.

Sexual touching is sentenced on the offending conduct, the relationship between the accused and the complainant, the level of intrusion, and the subjective case. For a first-offence single incident at the lowest end (a brief touch over clothing in a non-domestic setting), a CCO or ICO is realistic. For a more intrusive incident, or where there is a power imbalance, full-time custody is on the table.

Aggravating circumstances.

A power imbalance (employer / employee, teacher / student, carer / cared-for), use of any form of compulsion, particular vulnerability of the complainant, persistence after the complainant indicated lack of consent, multiple incidents, all elevate the sentence.

Subjective factors.

First-time offender, character references from those who know of the charge, mental health diagnosis properly treated, restorative material where the complainant is willing, evidence of program completion (where ordered or appropriate), all reduce the sentence.

Defences and arguments worth running.

The touching was not sexual.

Where the touching, judged by the reasonable-person standard, was not sexual (an incidental contact, a contact for medical, sporting or caring purpose), the offence is not made out.

Consent.

Where the complainant in fact consented and the accused believed so on reasonable grounds, the offence is not made out. The 2022 reforms require attention to what the accused said or did to ascertain consent; a defence of belief in consent now has to confront the affirmative-consent framework.

Identification.

For matters where the conduct occurred in a crowded or low-light setting (clubs, public transport), identification can be the live issue. CCTV, eyewitness reliability and clothing descriptions are tested.

Honest and reasonable mistake of fact.

In limited circumstances (mistaken identity of the complainant, mistaken belief about age in a non-child matter), the defence is available.

What we do for clients facing this charge.

Sexual offence matters call for a particular level of preparation and discretion. We act for the accused only. The work is read carefully, the complainant's statement is analysed line by line, and any forensic, medical or digital material is tested by people who know what to look for.

The decision whether to defend or plead is one of the larger conversations in any matter of this kind. Where the brief is strong and the prospects of acquittal are limited, the careful preparation of a plea (with a subjective case that addresses the affirmative-consent framework and the offender's insight) is often the best path. Where the brief contains real frailties · identification issues, complainant inconsistencies, an alternate version of the same events · the defended hearing is the right path.

Communications about a sexual matter are restricted to the smallest possible circle. We do not discuss your matter with anyone outside the engagement. The file is held discreetly.

What we tell clients on the first call.

The practical detail below is not legal advice for your matter. It is the version of the conversation the firm typically has with a client charged with sexual touching in the first hour.

What evidence police usually rely on.

The complainant's statement (taken in the first instance under section 281 of the Criminal Procedure Act), any digital records, medical or forensic evidence where it exists, and the body-worn video of the arrest. The brief in sex matters is often heavily redacted.

What to bring to the first consultation.

• The Court Attendance Notice (or charge sheet) and any bail papers.
• Anything police gave you in writing — fact sheet, certificate of analysis, search warrant copy, property seizure record.
• A short written timeline of the day, in your own words.
• Bring nothing in writing that could be subpoenaed if it does not need to be reduced to writing. Phone us first; we will conference you in chambers.

Common mistakes in the first twenty-four hours.

• Talking to anyone other than your lawyer about the matter. Friends, family, co-accused and social media are not privileged.
• Deleting messages, photographs, posts or browser history. The trail left by deletion is often more damaging than what was there.
• Contacting the complainant or any prosecution witness, even through a third party.
• Discussing the matter with anyone other than your lawyer. Conversations with friends, partners or family are not privileged and may be the subject of a defence subpoena.

What not to say to police without advice.

You must give your name and address. You do not have to answer anything else, and in most cases you should not. The standard answer is: “I do not wish to answer questions. I want to speak to my lawyer.” Section 89 of the Evidence Act 1995 (NSW) protects silence; the narrow section 89A exception applies only on indictable matters and only where a special caution has been given in the presence of an Australian lawyer.

The timeline you can expect.

From charge to first court appearance is typically two to six weeks in the Local Court and longer where the matter is indictable. The brief of evidence is served by the prosecutor on a date set at the first mention. From service of the brief to first reply is typically twenty-eight days. Defended hearings and committals are then listed weeks or months out depending on the court list.

When an early plea may or may not be appropriate.

An early plea attracts a sentencing discount of up to twenty-five per cent if entered at the first available opportunity, but it locks in a conviction. The firm does not advise an early plea before the brief is served and read. An early plea is rarely appropriate. The brief in sex matters is heavily contested; the evidence of the complainant is taken in chief by way of section 281 recording; defence preparation drives the result.

Court-specific notes.

If the matter is listed at the Downing Centre, Parramatta, Penrith, Burwood, Manly, Newtown, Waverley, Hornsby or Sutherland Local Court, the firm appears in person. Wollongong Local Court matters are run from the firm's Wollongong office. ACT Magistrates Court and ACT Supreme Court matters are run from chambers; the firm appears in person at all ACT mentions.

Recent outcomes · sexual touching matters.

Anonymised outcomes from the firm's matter set. Names, dates beyond the year, and identifying details have been altered or omitted to preserve client confidentiality. Each result was determined on the particular facts and is not a guarantee of any future outcome.

Frequently asked.