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What are Sex Offences ?

Sexual offences such as offences in the nature of rape and offences relating to other acts of sexual assault are found in the Crimes Act 1900 (NSW) under Division 10

Sexual Assault

The offence of sexual assault can be found in section 61l of the Crimes Act 1900 (NSW). This section states:

Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to  imprisonment for 14 years.

There are 3 important elements of this offence:

  • There must be sexual intercourse
  • Without the consent of the other person
  • You must know that the other person does not give consent.

Aggravated Sexual Assault

If the Assault occurred “Circumstances of aggravation” the maximum penalty is 25 years imprisonment.

Aggravation means circumstances in which:

  • Actual bodily harm occurs or threats to inflict actual bodily harm by means of an offensive weapon or instrument, or
  • Is in the company of another or
  • the alleged victim is under the age of 16 years, or
  • the alleged victim is under the authority of the alleged offender, or
  • the alleged victim has a serious physical disability, or
  • the alleged victim has a cognitive impairment, or
  • 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
  • the alleged offender deprives the alleged victim of his or her liberty

Indecent Assault

Per SECT 61L Crimes Act 1900(NSW)-

  • Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years.

Aggravated Indecent Assault

Per SECT 61L Crimes Act 1900-

  • Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency in circumstances of aggravation, Is liable to imprisonment for up to 10 years.

Acts of Indecency without Assault

Per SECT 61N Crimes Act 1900 (NSW)

(1) Any person who commits an act of indecency towards a person under the age of 16 years, or incites a person under that age to an act of indecency is liable to imprisonment for 2 years.

(2) Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, is liable to imprisonment for 18 months.

 

Aggravated Acts of Indecency

Per s61O Crimes Act 1900 (NSW)

Any person who commits an Aggravated act of indecency depending on how it is Aggravated can be liable to imprisonment for up to 10  years.

What must the prosecution prove?

Since Sex offences are criminal offences, 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 a Sex offence.

To establish Sex offences, the prosecution must prove each of the following matters beyond reasonable doubt:

Sexual Assault

  • You had sexual intercourse with another person
  • That person did not consent
  • You knew that person did not consent

Aggravated Sexual Assault

  • 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

Indecent Assault

  • that the accused assaulted the complainant, and
  • that the assault was indecent, and
  • that the assault was without the consent of the complainant, and
  • that the accused knew that the complainant was not consenting, or he/she realised that there was a possibility that the complainant was not consenting, but he/she went ahead anyway, or he/she did not even think about whether the complainant was consenting or not — in other words, he/she did not care whether the complainant was consenting.

Aggravated Indecent Assault

  • that the accused assaulted the complainant, and
  • that the assault was indecent, and
  • that the assault was without the consent of the complainant, and
  • that the accused knew that the complainant was not consenting, or he/she realised that there was a possibility that the complainant was not consenting, but he/she went ahead anyway, or he/she did not even think about whether the complainant was consenting or not — in other words, he/she did not care whether the complainant was consenting.

AND

  • The alleged offender is in the company of another person or persons; or
  • The victim is under the age of 16 years; or
  • The alleged victim is under the authority of the alleged offender; or
  • The alleged victim has a serious physical disability; or
  • The alleged victim has a cognitive impairment.

Acts of Indecency without Assault

  • That you did an act which was indecent or that you incited another person to do the act;
  • That the act was done towards another person; and
  • That the person was under 16 years of age.
  • To convict you of the offence of Act of Indecency against a person over 16 years of age, the prosecution must prove each of the following matters beyond reasonable doubt:
  • That you did an act which was indecent or that you incited another person to do the act;
  • That the act was done towards another person;
  • That the person did not consent; and
  • That the person was over 16 years of age.

Aggravated Acts of Indecency

  • The alleged offender is in the company of another person or persons; or
  • The victim is under the age of 16 years; or
  • The alleged victim is under the authority of the alleged offender; or
  • The alleged victim has a serious physical disability; or
  • The alleged victim has a cognitive impairment.

If you are charged with A SEX offence what are your options?

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

NCL offer the following options for those who have been charged with a sex offence:

  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

Sex offences can be punished with a prison sentence ranging from 18 months up to 25 years. The following maximum prison sentences apply to the different types of sex offences

For the offence of Sexual Assault offenders can be punished with a prison sentence of up to 14 years.

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

For the offence of Indecent Assault offenders can be punished with a prison sentence of up to 5 years

For the offence of Aggravated Indecent Assault offenders can be punished with a prison sentence of up to 10 years

For the offence of Acts of Indecency without Assault if the victim is under 16 offenders can be punished with a prison sentence of up to 2 years whereas if the victim is over 16 offenders can be punished with a prison sentence of up to 18 months

For the offence of Aggravated Acts of Indecency offenders can be punished with a prison sentence of up to 10 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 have defended thousands of people charged with Sex offences and are experts at these hearings.

Defences

Some of the possible defences available for those charged with sex offences can include:

  • Duress-If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue “Duress”
  • Necessity – If your actions were necessary to prevent a greater harm from occurring, you may have the defence of-Necessity.

Statistics

The Courts are not bound by statistics however there must be reasonable consistency in sentences. A Magistrate or Judge should have regard to what has been done in other cases. In Green [2011] HCA 45, the plurity judgement of French CJ, Kiefel and Creennan JJ stated:

“Equal Justice” embodies the norm expressed in the terms “equality before the law”. It is an aspect of the rule of law.

The following percentage of offenders were sentenced as set out below;

Section 61I Sexual assault

25% full time imprisonment.

Section 61L Indecent assault

42% received a s9 Bond

Section 61M Aggravated indecent assault

Depending on how aggravated 50% received full time imprisonment.

Section 61N Act of indecency

44% received s9 Good Behaviour Bond

Section 61O Aggravated act of indecency

38% received a s9 Good Behaviour Bond

Note Depending on the circumstances of Aggravation the statistics do increase and vary

Possible Penalty's

In NSW, a court can impose any of the following penalties for a sex offence 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

The Client was alleged to have touched his daughter inappropriately on her vagina she was asleep. It was alleged that on three separate occasions, he would come back home from work late and would enter her room and would touch her inappropriately. She never complained of these allegations to anyone, including the complainant’s mother. Because of these incidents, it was also alleged that the complainant shouted out the words similar to “stop dad, get out of my room” and scratched him with her long nails, leaving marks around his body. Scratch marks were clearly visible, and photographs were taken at the police station to which our client was arrested immediately after the most recent of complaints. As a result, our client was charged with 3 counts of indecent assault.

Police made extensive inquiries and conducted their investigation very reasonably into the incident, whereby the complainant stated her father (defendant), “comes into my room at night and touches me on my vagina.” The complainant listed three dates she alleged these incidents to have occurred in a span of one year. After further inquiries by police, the defendant was arrested and taken to Riverstone police station where he participated in an electronically recorded interview (ERISP) with police and ultimately denied the allegations.

Astonishingly, and without adequate explanation, the Complainant indicated her wishes to have the charges withdrawn within 24 hours of making the complaint and attempted to return back to the police station, however, the police told her it is too late and the matter must proceed. Three days after the incident (19th September 2516), the Complainant gave an electronically recorded interview where she confirms the allegations.

Some of the family members were also asked to provide a statement which they agreed to do so which means they would, most likely, have to give evidence in Court. None of the family members corroborated any information similar to those alleged by the Complainant in their statements. However, the mother said that she “suspected” something but couldn’t be sure.

At hearing our senior lawyer cross-examined the complainant and the other prosecution witnesses who consisted of the complainant’s mother, sister, and brother. When starting to cross-examine the mother it was established that the younger sister suffers from a medical condition which causes her to have “night terrors“. This came to light when our expert layer asked her “Does your daughter have any medical conditions that you are aware of“? The Mother replied, “yes regularly she wakes up in the middle of the night screaming and going through unexplained tantrums“. This alluded the defence to immediately request the Court to grant a short service subpoena of all her medical records where it was astonishingly revealed that she was diagnosed with a medical condition which causes her to have significant night terrors. This was further exasperated by the fact that the complainant was studying for her HSC.

It now was time to cross-examine the complainant. Our senior lawyer, softly, but firmly asked questions about the time the allegation was said to have occurred, the location, the circumstances and other very important factors the Court would need to know. It came to light that in her evidence she said the defendant was “standing up” when it happened, whereas in her interview to police she said, “he was sleeping beside me on the couch“. Another question that had the Court alarmed was when Mr Moussa asked “Have you had these night terrors after your father has left and felt someone touching you“, the complainant replied “Yes“.

The Complainants medical condition was further explored and in one of the medical record, propensity to exaggerate things, making her feel a high level of anxiety and couldn’t explain to the practitioners what it was that was making her feel like that.

The Defence  called in a specialist forensic psychologist who treated these types of behaviour and he concluded, on oath, that “It is highly likely that individuals who suffer from night terrors, also known as intermittent delusions or psychosis, have their symptoms agitated by extenuating stress factors“. The stress referred to here was in reference to the complainant studying for her HSC exams.

The icing on the cake for the defence was when cross-examining the complainant, it was asked “When you wake up, do you feel your father touching you or is it only when you are asleep?“, The complainant replied, “No I am always asleep“. There were further significant inconsistencies between the version the complainant gave to police and the version she gave in Court, while on oath.

Our senior lawyer argued that the prosecution has not proven one of the elements of the charge. That is, there is an inherently significant doubt to prove an assault took place given the significant inconsistencies. The prosecution argued that she was making it all up to support her father.

This was resolved in the cross-examination of the siblings who corroborated that an incident occurred several days prior to the Accused arrest which supported that the scratches were not related to the alleged sexual indecent assault.

The sticking point, however, for the defence was the scratches witnessed by the police because it corroborated that an event took place which may support the complainant’s version of the evidence. It was recognized that the Complainant gives evidence to the effect that the scratches occurred on a Friday, but the incident occurred on a Saturday. The accused said the scratches he got from her was from a week prior because he told her to study for her HSC  and she got mad. The prosecution could not prove with certainty as they did not call a specialist to assess the scratches at the time. Mr Moussa argued that in the absence of further evidence “The Court is left with a case of choosing who is telling the truth and who is not. The Court cannot convict the defendant on the charges before the Court as by doing so will lead this Court into error”.

The Court held that “Whilst the prosecution case is strong, the inconsistencies, mixed with the Court not confident in the complainant’s inability to specifically tell the court the time in which the allegations have said to occur, leads me to conclude that the prosecution has not proven its case beyond reasonable doubt”.

Our client was extremely happy and said: “now I can get on with my life and help my daughter“. He also comically added, “Thank you for not breaking my bank account”.

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 Sex 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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