Sexual Assault– s 61I of the Crimes Act 1900 / Aggravated Sexual Assault- s61J of the Crimes Act 1900

Section 61HA of  Crimes Act 1900 defines this as

• Penetration of a person’s genitalia or anus with any part of a person’s body, or with an object, unless for genuine medical purposes.
• Cunnilingus or the placement of any part of a person’s penis into the mouth of the another person.

The extent to which the penetration occurs does not affect the charge.

Section 61HE defines the meaning of consent as where ‘the person freely and voluntarily agrees to the sexual activity.’

When can consent not be given?

 This is also provided for in section 61HE of the Crimes Act 1900, which provides a number of situations where a person does not give consent:

• the alleged victim is under 16; or
  • intellectually disabled; or
  • does not have the capacity to consent (EG. cognitively incapable), or
  • is intoxicated; or
  • is unconscious or asleep; or
  • if consent is given because of threats of force or terror; or
  • if consent is given where a person has been unlawfully detained; or
  • if consent is given because of the abuse of a position of authority or trust; or
  • if there is any mistaken belief as to the person’s identity, or other mistaken beliefs.

The judge or magistrate will consider whether the alleged offender has taken any steps to determine whether the alleged victim has provided valid consent.

The maximum penalty for an offence under:

• Section 61KC – sexual assault
  • imprisonment for 14 years
• Section 61KD – aggravated sexual assault
  • Imprisonment for 20 years

When committed in company, the penalty increases to life imprisonment.

Please note that these penalties are reserved for the most serious cases only.

This option is recommended only where you accept that:

Sexual assault

• you had sexual intercourse (objective) with another person;
• the other person did not consent;
• you knew the other person did not consent; or were reckless*, or had no reasonable grounds to believe the other person consented. (subjective)

*reckless means you knew that consent might be absent, but you proceeded nonetheless. EG. where the other person may have been intoxicated or asleep.

Aggravated sexual assault

• The sexual intercourse occurred in circumstances of aggravation, in addition to the factors outlined in the sexual assault category of offending.

A plea of guilty at the first available opportunity entitles you to a maximum sentencing discount of 25 per cent. It demonstrates to the court that you have accepted responsibility for your actions.

What possible outcomes exist?

• Community Corrections Orders (“CCO”)
  • An offender is placed under the supervision of Community Corrections.
  • Example of a CCO is performing service within the community, or being required to undertake mental health treatment.
• Full-time imprisonment
  • Served in a correctional facility.
  • The majority of offenders receive a term of imprisonment for this type of offense.

Unfortunately, an ICO (a term of imprisonment in the community) is not available for prescribed sexual offences. A term of imprisonment is the most likely outcome for either of these offences.

How will the court assess the objective seriousness of a sexual assault?

• The objective seriousness of an offence depends on all the circumstances of the case and is not confined to the nature of the act committed by the offender. R v Hibberd (2009) 194 A Crim R 1 at [56].
• Other relevant matters in deciding where on the continuum of seriousness an offence lies include:
  • the degree of violence,
  • the physical hurt inflicted,
  • the form of the forced intercourse,
  • the circumstances of humiliation
  • the duration of the offence”: 
  • The context in which the offending occurs is an important part of determining the objective seriousness of a particular offence.
    • For example, In R v Hall [2017] NSWCCA 313 , two forcible acts of penetration occurred where a blindfolded victim was threatened with a knife whilst dragged around a motel room, over a period of about 20 to 30 minutes. The court described the victim’s ordeal as “utterly terrifying.” That the victim did not sustain any significant physical harm did not lessen the objective seriousness.
• Worst cases that attract the maximum penalty are found in:
  •  The Queen v Kilic (2016) 259 CLR 256.
  • R v Anderson [2002] NSWCCA 304

To prove this charge, the Prosecution must establish, beyond a reasonable doubt that:

Sexual assault

• you had sexual intercourse with another person;
• the other person did not consent;
• you knew the other person did not consent; or were reckless*, or had no reasonable grounds to believe the other person consented.

*reckless means you knew that consent might be absent, but you proceeded nonetheless. EG. where the other person may have been intoxicated or asleep.

Aggravated sexual assault

• The sexual intercourse occurred in circumstances of aggravation, in addition to the factors outlined in the sexual assault category of offending.

If the Prosecution cannot prove all of the elements beyond reasonable doubt, then the court must find you not guilty.

Defences:

• Sexual intercourse did not occur.
• Appropriate consent for sexual intercourse was given.
• Duress: circumstances may exist where a person has been forced to have sexual intercourse with another person.