Aggravated Sexual Assault

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What is Aggravated Sexual Assault ?

Aggravated Sexual assault is an act in which a person sexually touches another person without that person's consent, or coerces or physically forces a person to engage in a sexual act against their will in circumstances of Aggravation.

It is a form of aggravated sexual violence which includes rape (forced vaginal, anal or oral penetration or drug facilitated sexual assault), groping, child sexual abuse or the torture of the person in a sexual manner

Case law/Jurisdiction

An offence of Aggravated Sexual Assault is strictly indictable, meaning it will be finalised in the District or Supreme Court.

The Law

The Law in relation to Aggravated Sexual Assault is found in 61J of the Crimes Act 1900 (NSW) 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.

(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 alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim 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 alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or

(c) the alleged offender is in the company of another person or persons, or

(d) the alleged victim is under the age of 16 years, or

(e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or

(f) the alleged victim has a serious physical disability, or

(g) the alleged victim has a cognitive impairment, or

(h) 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

(i) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence.

What must the prosecution prove?

Since Aggravated Sexual Assault is a criminal offence, the burden of proof lies on the Prosecution.

The prosecution must prove the Accused’s guilt beyond reasonable doubt.

That is a high standard of proof that the prosecution must achieve before someone can be convicted of Aggravated Sexual Assault.

To establish Aggravated Sexual Assault the prosecution must prove each of the following matters beyond reasonable doubt:

  • You had sexual intercourse with another person
  • That person did not consent
  • You knew that person did not consent
  • You did so in circumstances of Aggravation

There are a number of circumstances that “aggravate” a charge of sexual assault. This includes, amongst others, where there are any of the following elements to the allegation:

  • Infliction of an injury on the alleged victim
  • Threat of an injury by the accused by use of a weapon or instrument
  • The accused acting along with another person
  • An alleged victim aged under 16
  • Where the alleged victim is “under the authority” of the accused person
  • An alleged victim having a serious physical disability
  • An alleged victim having a cognitive impairment

If you are charged with the offence of Aggravated Sexual Assault what are your options?

National Criminal Lawyers have been successful in defending a number of Aggravated Sexual Assault charges where the prosecution could not establish each of the elements offence. We have also achieved a number of non-convictions for Aggravated Sexual Assault.

NCL offer the following options for those who have been charged with Aggravated Sexual Assault:

  1. We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended;
  2. NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
  3. Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
  4. Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.

Pleading Guilty

If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.

Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.

Our Lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work at increasing the chances of obtaining a non-conviction or section 10.

Maximum Penalties

For the offence of Aggravated Sexual Assault can be punished with a prison sentence of up to 25 years.

Please note that the penalties mentioned are reserved for the worse case offending and are unlikely to be the penalty you receive.

Pleading Not Guilty

If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.

A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.

National Criminal Lawyers are experts at these hearings and can advise you on what the police must prove beyond reasonable doubt.

Defences

Some of the possible defences available for those charged with Aggravated Sexual Assault can include:

  • Denying that sexual intercourse occurred
  • Claiming there was consent
  • Claiming that there was a reasonable belief that there was consent

Statistics

In NSW, a court can impose any of the following penalties for an Wounding or grievous bodily harm with intent charge.

  • Prison sentence;
  • Home Detention;
  • Intensive correction order (previously periodic detention);
  • Suspended sentence;
  • Community service order (CSO);
  • Good behaviour bond;
  • Fine; and/or
  • Section 10

However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:

  • Full time Imprisonment;
  • New ICO (ICO) with a home detention condition available;
  • New Community Correction Order (CCO);
  • Fine; or
  • New Conditional release Order (CRO)

Possible Penalty's

In NSW, a court can impose any of the following penalties for a Supply prohibited drug charge.

  • Prison sentence
  • Home Detention
  • Intensive correction order (previously periodic detention)
  • Suspended sentence
  • Community service order (CSO)
  • Good behaviour bond
  • Fine
  • Section 10

 

However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:

  • Full time Imprisonment
  • New ICO (ICO) with a home detention condition available
  • New Community Correction Order (CCO)
  • Fine
  • New Conditional release Order (CRO)

Case Studies

Our client was charged with aggravated sexual assault and break and enter. It was alleged that he broke into the house of a person unknown to him during the night, entered the bedroom, and raped the complainant. The victim awoke and demanded that the person leave, which our client did. Following a contested committal in the Magistrates’ Court the prosecution decided to discontinue the matter. Our client had been held in custody on the charges throughout the proceedings and so was finally released. In terms of the evidence against our client, this was essentially a DNA only case. The complainant did not formally identify our client. Our client was Indigenous and the complainant was only able to give a general description of the offender.

The prosecution relied heavily on the DNA evidence which suggested our client’s DNA had been found on the complainant. We argued, from the beginning of the case, that there were flaws with the testing process and that the DNA results should be ruled as inadmissible. We sought expert opinion and reports in the running of this argument. Ultimately, the prosecution discontinued the matter before it got to trial. There will always be inherent dangers in prosecuting people on DNA evidence alone. DNA evidence is only circumstantial evidence, and it is fallible. We were able to demonstrate this in this case. Had our client been found guilty of this offence, he would have faced years in gaol. Instead, the charges have been discontinued and he has been released from custody.

Why National Criminal Lawyers?

There are three reasons to choose National Criminal Lawyers:

1. We get the results

We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.

2. We give a Senior Defence Lawyer guarantee

No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.

3. National Criminal Lawyers are the best defenders of your rights

At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.

If you have been charged with any Aggravated Sexual Assault offence our Team and National Criminal Lawyers are well versed and specialists in having charges either withdrawn and otherwise achieving favourable outcomes.

Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.

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