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Criminal Law Blog NSW

Drug Court decided that indecent assault is a form of sexual assault

The Drug Court Act 1998 makes Drug Court available to eligible offenders. The question in R v Spooner [2002] NSWDRGC 3 was whether Spooner was eligible.

Spooner entered a guilty plea to the offence of aggravated indecent assault

He admitted that he touched the breasts of a girl who had not reached the age of 16. When she tried to run away, he grabbed her and touched her breasts again.

Spooner was convicted on his guilty plea and was given a community service order. That order was revoked and he was returned to court for sentencing. No further community service was available, so Spooner was facing a sentence of fulltime imprisonment if he did not qualify for Drug Court.

Spooner was dependent upon prohibited drugs. Spooner’s lawyer argued that Spooner could benefit from Drug Court. The question was whether he was eligible for the program given his offence.

Eligibility for Drug Court

Section 5(2) of the Drug Court Act provides that individuals are not eligible for Drug Court if their offence involves dealing drugs, violent conduct or sexual assault. Spooner’s offence did not involve drug dealing or violence. The question was therefore whether indecent assault is a form of sexual assault.

Aggravated indecent assault is defined by section 61M of the Crimes Act 1900 as an act of indecency committed on or in the presence of another person while engaged in (or immediately before or after) an assault under circumstances of aggravation. The aggravating circumstance in Spooner’s case was that the victim was under the age of 16.

The Court’s Decision

The court first examined the language of the statutes, noting that sexual assault and indecent assault are separate crimes. Sexual assault is defined in section 61I as sexual intercourse without consent. The broader offence of indecent assault encompasses a range of conduct that is regarded as contrary to community standards of decency.

The court also considered precedent that restricts the definition of “indecent assault” to acts that have a sexual connotation and that involve touching. In addition, the court considered that statement of the Minister of Police when the Drug Court Bill was being debated, to the effect that people who commit sexual offences would not be eligible.

The court had to decide whether the term “offence involving sexual assault” in the Drug Court Act refers to the specific crime of sexual assault defined in section 61I or whether it includes other sex offences. The court decided that the legislature did not intend to exclude from Drug Court only those individuals who had sexual intercourse with a victim, but also meant to exclude offenders who committed an assault that had sexual connotations.

Spooner’s conduct clearly had sexual connotations since it involved touching a young girl’s breasts. In light of the court’s interpretation of the Drug Court Act, it ruled that Spooner had committed an offence involving sexual assault and was therefore not eligible to participate in Drug Court.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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