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aggravated Sexual assault
The offence of Aggravated sexual assault is found in section 61J of the Crimes Act 1900 (NSW) which deems a person guilty if they have sexual intercourse with another person without consent and knowing that the other person does not consent to the sexual intercourse in circumstances of aggravation.
You could be charged with sexual intercourse without consent if:
- You have penetrated the vagina or anus with a penis without consent;
- You have digitally penetrated the vagina or anus without consent;
- You have performed or have had oral sex performed on you without consent;
- You have penetrated the vagina or anus with a foreign object without consent.
What must the prosecution prove?
Since this offence is dealt with in the criminal jurisdiction, the burden of proof for establishing this offence rests solely with the Prosecution.
The prosecution must prove the following beyond reasonable doubt:
- That you had sexual intercourse with the complainant; and
- That the sexual intercourse was without the consent of the complainant; and
- That the accused knew that the complainant did not consent to the sexual intercourse.
What constitutes “sexual intercourse”?
Sexual intercourse is characterized by the penetration of a female’s genitals, anus, or mouth by another person’s body or an object manipulated by another individual. This definition encompasses acts such as cunnilingus.
What defines “without consent”?
A situation is deemed to be “without consent” in cases where:
- An individual is aware that the other party does not provide consent to the sexual intercourse.
- The individual acts recklessly regarding whether the other person consents to the sexual intercourse.
- There are no reasonable grounds for the individual to believe that the other person consents to the sexual intercourse.
What are circumstances of aggravation?
- 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
- 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
- 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
- the accused person is in the company of another person or persons, or
- the complainant is under the age of 16 years, or
- the complainant is (whether generally or at the time of the commission of the offence) under the authority of the accused person, or
- the complainant has a serious physical disability, or
- the complainant has a cognitive impairment, or
- 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
- the accused person deprives the complainant of his or her liberty for a period before or after the commission of the offence.
What is aggravated sexual assault in company?
This occurs when the accused commits the offence of aggravated sexual assault in the company of another person, and further, where one of the following elements is present:
- Infliction of an injury on the alleged victim.
- A threat to inflict an injury on the alleged victim.
- The alleged victim being denied their liberty before or after the offence.
What are the maximum penalties for this offence?
The maximum penalty for sexual intercourse without consent in circumstances of aggravation in NSW is:
- 20 years imprisonment.
What are the potential defences?
Potential defences to a charge of aggravated sexual assault include:
- Denying that sexual intercourse occurred.
- Raising a doubt that there was no consent from the alleged victim.
- Raising a doubt that there was no reasonable belief that the alleged victim consented.
What Penalties Can You Face?
In New South Wales (NSW), sexual assault charges carry significant penalties. While section 61I of the Crimes Act 1900 (NSW) stipulates a maximum penalty of 14 years imprisonment for sexual assault, in aggravated cases, the maximum penalty increases to 20 years imprisonment. According to Crimes Statistics Australia, the majority of sexual assault charges result in some form of full-time custodial sentence, underscoring the gravity of this offence and the likelihood of imprisonment.
Alternatives To Jail
However, it’s important to note that full-time imprisonment is not mandatory for aggravated sexual assault offences. Depending on the circumstances of the crime, the offender’s character, criminal history, and personal circumstances, the NSW Court has the discretion to consider alternative penalties. Less severe penalties such as Community Service Orders (CSOs), Intensive Corrections Orders (ICOs), good behaviour bonds, or fines may be deemed appropriate punishments, with decisions made on a case-by-case basis.
For accurate advice tailored to your specific case, particularly if you are facing aggravated sexual assault charges, it’s crucial to seek guidance from our expert criminal defence lawyers. Contact us for a first consultation to discuss your situation and explore your legal options. We are committed to providing you with the support and representation you need during this challenging time.
What are your options at Law?
If you are facing charges of sexual intercourse without consent in circumstances of aggravation, the team at Barsha Defence Lawyers can exercise the following options on your behalf to protect your interests:
- Negotiate with prosecutors to withdraw or amend the charges.
- Plead not guilty to the charges and present a case at a Hearing/Trial to challenge the prosecution’s case.
- Plead guilty to the charges but dispute the facts alleged at a “disputed facts hearing”.
- Plead guilty to the charges and the facts at a Sentencing hearing with an objective to obtain the most lenient penalty available.
Should I Plead Guilty?
If you agree that you have committed the offence and/or the police are able to establish the offence, it is best to plead guilty at the earliest possible opportunity to receive the maximum discount. The maximum discount available for an early plea of guilty is 25% of the sentence the Court is minded to impose.