Sexual Assault & Under Authority
- Geoff Harrison
- May 12
- 6 min read
Published by Geoff Harrison | 11 May 2025
It is an aggravating factor for a sexual assault offence if at the time of the offence the complainant was (whether generally or at the time of the commission of the offence) under the authority of the accused person: s61J(2)(e) Crimes Act 1900 ('the Act'). A person is defined as being under the authority of another person if the person "is in the care, or under the supervision or authority, of the other person" as per s61H(2) of the Act. The definition of being 'under authority' as it relates to health care professionals, such as an osteopath (and more generally), was recently considered in the decision of Hu v R [2025] NSWCCA 66 by Wright J (Davies and Sweeney JJ agreeing) that, the three elements under the definition operate independently in determining the nature of the relationship. As noted:
The structure of s 61H(2) and the different, ordinary meanings of the words “care”, “supervision” and “authority” do not suggest that the subsection was intended to operate as an hendiadys or as one composite expression designed to convey a single idea of when a person is “under the authority of another person”. The three elements of the definition do not appear to work together to create a new composite or portmanteau result. Rather, each of the three elements appears to have independent work to do in determining whether particular facts fall within the description of being “under the authority of another person”. This is similar to the situation in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50 at [14] (French CJ, Kiefel, Bell and Keane JJ) where it was held that the expression “lawfully used or occupied” was not a composite expression but was to be understood by separate consideration of the words “used” and “occupied” because those two terms referred to different concepts and a natural reading of the phrase was that either a lawful use or a lawful occupation of the land would defeat a relevant claim.
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Notwithstanding that the “under the authority” circumstance of aggravation had originally been limited to offending against persons under 16 years of age, its application was extended by the 1989 Act to include offending against a person without any age restriction. The Second Reading Speech for the 1985 Act made clear that the three positions which might give rise to a person being under the authority of another person were “a position of care, supervision or authority”. This indicates that the three different types of positions were to be considered independently and not as a composite. The examples given in the Second Reading Speech for the 1985 Act were naturally limited at that time to those which might be most applicable to children under 16 years of age. It does not appear, however, that those examples were intended to limit, rather than illustrate, the circumstances in which a person may be found to be “under the authority” of another person for the purposes of the relevant provisions of the 1985 Act. Nor would it appear that the examples were intended to limit the types of positions which might amount to being “under the authority” for the purposes of the more general provisions introduced by the 1989 Act, such as s 61M and s 61J of the Crimes Act.
In my view, on the proper construction of s 61H(2) each of the three elements: being in the care of a person; being under the supervision of a person; and, being under the authority of a person, can and should operate independently in determining what relationships might fall within the description of being “under the authority of another person” for the purposes of the circumstances of aggravation referred to in provisions such as s 61M(1) and (3)(c) and s 61J(1) and (2)(e).
It follows that an alleged victim or complainant (person A) will be “under the authority of” the alleged offender or the accused person (person B), if person A is “in the care of” the person B. As observed by this Court in KSC, “care” in this context is an ordinary English word. In s 61H(2), it should be given its ordinary English meaning. This includes the underlying concept that the second person is responsible for the welfare, in one form or another, of the first person. In this context, the ordinary meaning of “care” includes “health care”, that is treatment by a health care professional, whether that be a surgeon, osteopath or other such professional. A person receiving health care treatment is in ordinary usage said to be “in the care of” the health care professional. A person undergoing surgery can be said to be “in the care of” the surgeon; a person receiving osteopathic treatment can be said to be “in the care of” the osteopath. This usage of “care” captures the underlying concept of a health care professional being responsible for the welfare of a patient because of the relationship between the patient and the health care professional and the dependence of the patient while receiving treatment on the professional training and conduct of the health care professional.
In short, on the proper construction of the relevant provisions, when there is a relationship of patient and health care professional and the patient is receiving treatment from the health care professional, the patient is “in the care of”, and thus “under the authority of”, the health care professional for the purposes of s 61H(2) and ss 61M and 61J.
Other Sources:
Sentencing Bench Book: Section 21A(2)(k) — abuse of a position of trust or authority (Care needs to be taken to avoid double counting on a statutory aggravating factor as per: MRW v R at [77]).
Public Defender Sentencing Table Index: Aggravated Sexual Intercourse Without Consent
Cases:
KSC v R [2012] NSWCCA 179 (see at [125])
Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 (see at [79])
Extracted Legislation:
CRIMES ACT 1900 - SECT 61H
Definitions
(1) In this Division--
"cognitive impairment" --see section 61HD.
"sexual act" --see section 61HC.
"sexual intercourse" --see section 61HA.
"sexual touching" --see section 61HB.
(2) For the purposes of this Division, a person is under the authority of another person if the person is in the care, or under the supervision or authority, of the other person.
(3) For the purposes of this Act, a person who incites another person to carry out sexual touching or a sexual act, as referred to in a provision of Subdivision 3, 4, 6, 7 or 11, is taken to commit an offence on the other person.
(4) It is not relevant for the purposes of this Division whether a part of the body referred to in this Division is surgically constructed or not.
CRIMES ACT 1900 - SECT 61J
Aggravated sexual assault
(1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.
(2) In this section,
"circumstances of aggravation" means circumstances in which--
(a) at the time of, or immediately before or after, the commission of the offence, the accused person intentionally or recklessly inflicts actual bodily harm on the complainant or any other person who is present or nearby, or
(b) at the time of, or immediately before or after, the commission of the offence, the accused person threatens to inflict actual bodily harm on the complainant or any other person who is present or nearby by means of an offensive weapon or instrument, or
(b1) at the time of, or immediately before or after, the commission of the offence, the accused person threatens to inflict grievous bodily harm or wounding on the complainant or any other person who is present or nearby, or
(c) the accused person is in the company of another person or persons, or
(d) the complainant is under the age of 16 years, or
(e) the complainant is (whether generally or at the time of the commission of the offence) under the authority of the accused person, or
(f) the complainant has a serious physical disability, or
(g) the complainant has a cognitive impairment, or
(h) the accused person breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or
(i) the accused person deprives the complainant of his or her liberty for a period before or after the commission of the offence.
(3) In this section,
"building" has the same meaning as it does in Division 4 of Part 4.
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