Charged in company: how a sexual assault allegation involving more than one person changes the offence, the court and the sentence

There is a version of these matters that people accused of them recognise and the charge sheet does not. Several people were present. Not everyone did the same thing. Some were in the room and some were not. One person may have done nothing at all beyond being there. And yet everyone has been charged with the same offence, and that offence carries a maximum penalty of twenty years or more.

The presence of another person is not background detail in NSW sexual offence law. It is a circumstance of aggravation that changes the offence itself, and it operates alongside accessorial principles that can attach full liability to someone who never touched the complainant. If you have been charged in a matter involving co-accused, this is the framework you are inside.

The three tiers

The base offence is section 61I of the Crimes Act 1900 (NSW)): sexual intercourse with another person without consent, knowing the person does not consent. The maximum penalty is 14 years imprisonment.

Above that sits section 61J – aggravated sexual assault. The same conduct committed in circumstances of aggravation carries a maximum of 20 years. The circumstances of aggravation are defined in the section and include being in the company of another person or persons, inflicting actual bodily harm, threatening to inflict actual bodily harm with a weapon, depriving the complainant of liberty before or after the offence, and the complainant being under 16, or under the authority of the offender, or having a serious physical disability or cognitive impairment.

Above that again is section 61JA – aggravated sexual assault in company. Where a person has sexual intercourse without consent in the company of another person or persons and, at the time or immediately before or after, intentionally or recklessly inflicts actual bodily harm or threatens to do so with an offensive weapon, or deprives the complainant of liberty, the maximum penalty is life imprisonment.

Standard non-parole periods apply to the aggravated offences, which gives a legislative guidepost for a middle-range offence and pushes sentencing outcomes substantially upward.

What “in company” actually means

This is the element that most often decides which section a person is charged under, and it is narrower than the prosecution’s opening usually suggests.

In company is not simply proximity. The authorities require that the accused and one or more others share a common purpose, and that the complainant was confronted by the combined force or strength of two or more persons. A person in another room, unaware of what was happening, is not in company. A person who was present but had physically dissociated themselves may not be. The question is whether the complainant was in fact faced with the coercive effect of numbers.

That distinction matters enormously, because it is the difference between a 14 year maximum and a 20 year maximum, and it is a genuinely contestable question of fact rather than a formality. Where the Crown case on this element is thin, it is often the most productive point of attack in the entire matter.

The consent framework that applies

For alleged conduct since the 2022 affirmative consent reforms, the prosecution must prove the complainant did not consent and that the accused knew they did not consent. Knowledge is established where the accused actually knew, was reckless as to consent, or where any belief in consent was not reasonable in the circumstances – and a belief is not reasonable unless the accused said or did something to ascertain consent.

The framework is set out in the consent provisions of the Crimes Act and explained in our article on what the prosecution must actually prove about consent in NSW. In a multi-accused matter it produces a critical consequence: consent is assessed separately in respect of each accused and each act. The fact that one person may have had a reasonable basis to believe there was consent says nothing about whether another did, and steps taken by one accused to ascertain consent do not transfer.

Intoxication complicates this further and is present in a very large proportion of these matters. Self-induced intoxication is not taken into account when assessing whether a belief in consent was reasonable.

The person who did not participate

This is the question that brings most co-accused to a lawyer. If I did not touch anyone, how am I charged with the same offence?

Two doctrines answer it. Accessorial liability attaches to a person who aids, abets, counsels or procures the commission of an offence – which can include acting as a lookout, restraining the complainant, blocking a door, or encouraging what is happening. Joint criminal enterprise attaches where two or more people agree to commit an offence and it is committed in the execution of that agreement, and in extended form can capture a further offence foreseen as a possible incident of the agreed enterprise.

The reasoning is the same one we set out in our article on how joint enterprise principles spread liability across everyone involved in an operation, and it applies here with even greater force because the maximum penalties are so much higher.

The defence to it is equally established. Mere presence is not enough – the Crown must prove intentional assistance or encouragement, or an agreement, together with the requisite knowledge. A person who was present, did nothing, and did not share any common purpose is not liable, and a person who withdrew before the offence occurred may not be. These are fact-intensive arguments built on the detail of who said what, who was where, and when.

How these cases are actually run

Multi-accused sexual offence trials are among the most complex in the District Court, and several features drive the outcome.

Severance is the first. Where the position of one accused is materially different, or where evidence admissible against one is prejudicial to another, an application for separate trials may be made. Whether accused are tried together or separately can substantially change the dynamic in front of a jury.

Cut-throat defences are the second. Where co-accused blame each other, the Crown case is effectively run for it. Understanding whether your interests genuinely align with a co-accused, and resisting pressure to coordinate an account, is a decision that should be made with independent representation from day one – never through a shared lawyer and never through conversations between the accused, which become evidence.

Electronic evidence is the third and increasingly the most important. Messages before and after, location data, rideshare records, CCTV, and any recording made at the time will be obtained. In matters of this kind, the digital record is very often more determinative than any witness account, and it cuts both ways – it convicts, and it also exonerates.

The Judicial Commission maintains substantial material on the evidentiary issues that arise, including published analysis of jury directions and procedure in prescribed sexual offence cases), and the Public Defenders publish detailed guidance on preparing and conducting sexual assault trials.

Bail and the immediate practical position

Charges under sections 61J and 61JA are show cause offences. That reverses the ordinary position: the accused must establish why detention is not justified before the unacceptable risk test is even reached, as we explain in our article on what show cause bail requires. In multi-accused matters bail is frequently refused at first instance, and a properly prepared application matters enormously.

The reporting environment adds pressure. BOCSAR data shows sexual assault reports continuing to rise in NSW), and matters involving multiple accused attract media attention that can itself become an issue in the proceedings.

If you have been charged or contacted

Do not participate in an interview before getting advice. In multi-accused matters investigators interview participants separately and use inconsistencies between accounts as the spine of the Crown case – and an account given to distance yourself from one aspect routinely confirms your presence and knowledge for the purposes of accessorial liability. Our article on the reality of the right to silence in NSW explains why silence is not an admission.

Do not contact co-accused, the complainant, or any witness. Do not delete anything from your phone – it is recoverable, and deletion supports a consciousness of guilt argument. Preserve everything, including material you think looks bad, because context frequently changes what it means.

And do not assume these matters cannot be won. Our case study on a total jury acquittal in a complex consent matter shows what thorough preparation can achieve even on the most serious charges.

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An allegation involving more than one accused is not simply the same case with extra defendants. The in company element lifts the maximum penalty by years and, in the most serious form, to life. Accessorial and joint enterprise principles can attach that liability to someone who never touched the complainant. And the consent analysis is conducted separately for every accused.

At National Criminal Lawyers, we defend serious sexual offence matters including multi-accused prosecutions in the NSW District Court. We test the in company element rather than conceding it, we run severance applications where they are available, and we make sure your position is presented independently of every co-accused.

Call us at 1800 CRIM LAW for a free consultation. Help us help you understand your situation and get you the best outcome possible.