Aggravated Sexual Assault

Section 61I in the Crimes Act 1900 (NSW) details the offence of sexual assault. Following on from this charge, section 61J details the more serious offence of aggravated sexual assault, which states:

  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.

In order to understand aggravated sexual assault charges, the Crimes Act also state that “circumstances of aggravation” relate to instance in which:

  1. At the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is person or nearby, or
  2. At the same time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by the means of an offensive weapon or instrument, or
  3. The alleged offender is in the company of another person or persons, or
  4. The alleged victim is under the age of 16 years, or
  5. The alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
  6. The alleged victim has a serious physical disability, or
  7. The alleged victim has a cognitive impairment, or
  8. The alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or
  9. The alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence.

Sexual assault charges are also heavily reliant on the concept around consent. Consent refers to agreement made and in the instance of sexual assault, must be mutual. The complex and difficult to establish idea of consent must be proved beyond a reasonable doubt by the prosecution. Therefore, it must be demonstrated that the victim in the case did not consent, as well as that the defendant was aware that the victim at the time was not consenting.

In NSW law, a person does not consent to sexual intercourse if:

  1. The person does not have the capacity to consent
  2. The person does not have the opportunity to consent
  3. The person consents to sexual intercourse because of threats of force or terror
  4. The person consents because they are unlawfully detained

Furthermore, the grounds upon which it may be established that a person does not consent to sexual assault include:

  1. The person has sexual intercourse whilst substantially intoxicated by alcohol or drugs
  2. The person has sexual intercourse as a result of intimidation or coercion.
  3. The person has sexual intercourse because of the abuse of a position of authority or trust.

If the above points can be established, it is likely that a sexual assault charge will follow. If you or someone you know has been charged with the offence of aggravated sexual assault, it is advised to seek legal representation immediately.

At Benjamin Leonardo – The Defenders, we are a Sydney based criminal law firm with expert sexual assault lawyers. Contact our team now for a FREE first consultation.

PENALTIES

In NSW, sexual assault charges attract significant penalties. While section 61I of the Crimes Act 1900 (NSW) imposes a maximum penalty of 14 years imprisonment for sexual assault, in circumstances which the offence is aggravated the maximum penalty is increase to 20 years imprisonment. Crimes Statistics Australia reveals that majority of sexual assault charges result in a full time custodial sentence of some sort, therefore due the serious nature of this particular crime, imprisonment may be likely.

Despite this, full time imprisonment is not always the case for aggravated sexual assault. In appropriate instances, and upon consideration of the facts surrounding the crimes, the character of the offender, criminal history and personal circumstance, the NSW Court has the ability to impose alternative penalties, where seen fit. Less impactful penalties such as Community Service Orders (CSOs), Intensive Corrections Order (ICOs), good behaviour bonds or fines may be seen as appropriate punishments, and is determined on a case by case basis.

For more accurate advice in relation to the penalties that relate to your specific case should you be facing aggravated sexual assault charges, contact our expert criminal defence lawyers for a FREE first consultation.

GUILTY

In order to be found guilty of aggravated sexual assault, It is up to the Police to establish and prove the following beyond a reasonable doubt:

  • That you engaged in sexual intercourse with another individual;
  • That the person did not consent; and
  • You knew that person did not consent.

If you tend to agree with the aggravated sexual assault charges made against you, it may be advisable to plead guilty. If you choose to do so, you will then proceed to sentencing where you could be facing up a maximum sentence of imprisonment for 20 years.

Although this is a significant penalty and Crime Statistics Australia shows that a custodial sentence of some sort is likely, pleading guilty may achieve more favourable outcomes. A guilty plea typically demonstrates remorse for your actions and therefore it is not uncommon for the Court to decrease gaol terms or enforce alternative and generally less severe punishments.

Our Sydney based sexual assault lawyers may also be able to negotiate a deal with the prosecution team, given you enter a guilty plea. We work closely with all the clients we represent and provide honest advice if it is in your best interest to plead guilty or not guilty.

Benjamin Leonardo – The Defenders is a leading criminal defence law firm based in Sydney. Through out honesty, dedication and commitment, our team has proudly achieved a 90% success rate on all criminal cases that we have represented. If you or someone you know is facing aggravated sexual assault charges, it is advised to seek legal representation immediately. Call our sexual assault lawyers now to schedule a FREE first consultation where we can provide tailored advice in relation to your specific matter.

NOT GUILTY

Opposed to pleading guilty, you also have the option to plead not guilty. In this instance, it is up to the Police to prove beyond a reasonable doubt that you did commit the offence as per section 61J of the Crimes Act 1900. Through evidence, it must be determined that you did in fact have sexual intercourse with another person, who did not consent and that you knew the person had not given their consent. If the Police are able to successfully prove these claims, you will be found guilty of aggravated sexual assault and could be facing up to 20 years imprisonment.

In order to avoid significant penalties, our criminal defence lawyers carefully examine the evidence provided by the prosecution team. In appropriate circumstances, we will then use a relevant defence strategy in order to cast doubt of the evidence and therefore dismiss the claims. If we are successful, the charges may be completely dropped and no criminal conviction will be recorded. In other instances, the defence strategy may only provide a partial defence, in which you will be found not guilty for this specific charge, although you will be liable to a generally downgraded offence will less significant penalties.

For relevant advice in relation to whether you should plead guilty or not guilty, please do not hesitate to contact our Sydney based criminal law firm for a FREE first consultation.

THE DEFENCE

Aggravated sexual assault is a very serious criminal offence. In order to disprove the allegations made against you, our Sydney based sexual assault lawyers may use the following defence strategies, where appropriate.

Actual Innocence: A claim innocence is not sufficient enough to negate the claims of sexual assault. If evidence can be provided that proves that you were not involved in the offence, reasonable doubt will be cast on the allegations and you will be found not guilty for this particular offence.

Consent: The idea of consent can often be complicated, controversial and difficult to prove. There is also confusion amongst the public relating to the circumstances that surround consent. In NSW law, someone is unable to give consent when they are asleep or unconscious, intoxicated or affected by drugs, unable to understand what they are consenting to due to their age or intellectual capacity, intimidated, coerced or threatened, unlawfully detained, or the victim has only submitted due to the offender being in a position of trust. If any of these facts can be established, the defence of consent will not apply. In order for this defence to be raised, it must be proven that the accused did receive free and voluntary consent from the victim, however, there is not always firm evidence to prove consent, which can sometimes hinder the case.

Mental Illness (Insanity Defence): Applies in situations where it can be proven that the accused was significantly mentally impaired and did not know that their actions are perceived as wrong. It must be proven that the actions were as the result of a disease of the mind in which the accused is not aware of the consequences of their actions.

WHICH COURT?

Aggravated sexual assault charges are classified as an indictable offence in which the matter will be heard at the District Court.

As expert sexual assault lawyers based in Sydney, Benjamin Leonardo – The Defenders possess a vast range of experience in defending various criminal cases throughout Local, District and Supreme Courts in NSW. With a 90% success rate for all the cases we represent, our clients can be confident that our team will achieve the best outcome possible regardless of the Court the matter is heard in.

If you are someone you know is facing aggravated sexual assault charges, contact our team now for a FREE first consultation.