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Criminal Law | Sexual Assault

Sydney’s best criminal Lawyers explain sexual assault cases

Sexual assault occurs when a person is forced or coerced into performing sexual acts against their will or without their consent. Sexual assault also includes situations where a child or a young person under the age of 18 is exposed to sexual activities. In NSW, sexual assault convictions have a maximum penalty of 14 years imprisonment. Aggravated sexual assault carries a maximum penalty of 20 years imprisonment, and aggravated sexual assault with a company (an aggravated sexual assault where someone else is present) carries a maximum sentence of life in prison.

What does the prosecution need to prove for a Sexual Assault charge?

To be convicted of a sexual charge assault, the prosecution must prove each of the following matters beyond a reasonable doubt:

  • The accused had sexual intercourse with another person at the time and place alleged: under the Crimes Act, sexual intercourse does not only refer to genital penetration by a person’s body parts. It also includes penetration of a person’s genitals by objects manipulated by another person and cases of oral sex performed on either a male or a female.
  • The other person did not consent to the sexual intercourse: in relation to sexual assault, consent is the “free and voluntary agreement” of either party, either verbally or through actions of the other party. There are cases where consent cannot be given, including if the victim is:​
    1. Significantly intoxicated or affected by drugs
    2. Unable to understand what they are consenting to due to their age or intellectual capacity
    3. Intimidated, coerced or threatened
    4. Unlawfully detained or held against their will
    5. Submitting due to the person being in a position of trust
    6. Asleep or unconscious
    7. The accused knew that the other person did not consent to the sexual intercourse: the prosecution must prove that the accused knew that the victim did not consent to the act, that the accused was reckless as to consent, or that the accused had no reasonable grounds for believing that the victim consented to the act.

    When determining whether the accused knew that consent was not given, the prosecution will consider your state of mind at the time of the offence, as well as any steps the accused took to determine whether consent was given. It also needs to be proven by the police that the person who committed the sexual assault offence is the defendant.

    What penalties can be imposed for a Sexual Assault charge?

    The maximum penalty for a charge of sexual assault is 14 years imprisonment. Sexual assault charges are strictly indictable, meaning that they can only be finalised in the District Court. The most common sentence awarded to the offence of sexual assault is a gaol sentence. The court can impose any of the following penalties for a sexual assault charge:

  • Section 10: when a section 10 is awarded, the charges against the defendant are dismissed and there is no conviction upheld.
  • Fine: The fine given for a sexual assault charge will be determined by the judge or magistrate, who will consider the defendant’s financial situation and their ability to pay the fine set.
  • Community Service Order (CSO): To be eligible for CSO the defendant has to be assessed by an officer of the probation service as suitable to undertake the order. CSO involves either unpaid work in the community at a centre specified by probation and parole, or attendance at a centre to undertake a course (such as anger management).
  • Good behaviour bond: this is an order of the court that specifies the defendant be of good behaviour for an amount of time specified by the magistrate or judge. The court will impose conditions that the defendant must obey during the bond term. In New South Wales, the maximum duration of a good behaviour bond is five years.
  • Suspended sentence: this is a gaol sentence that is suspended upon the defendant entering a good behaviour bond. If the terms of the good behaviour bond are adhered to, the gaol sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years.
  • Intensive correction order: the court can order the defendant to comply with several conditions, which include: attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. This sentencing option has replaced periodic detention.
  • Gaol sentence: the most serious penalty for the charge of sexual assault, a gaol sentence involves full-time detention in a correctional facility.
  • Our team at Executive Law Group can outline all your options and give you the right help for your matter to proceed in the best way possible.

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