Sexual assault refers to situations where 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 carry a maximum penalty of 14 years imprisonment. Aggravated Sexual Assault carries a maximum penalty of 20 years imprisonment and Aggravated Sexual Assault in 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 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:
- Asleep or unconscious
- Significantly intoxicated or affected by drugs
- Unable to understand what they are consenting to due to their age or intellectual capacity
- Intimidated, coerced or threatened
- Unlawfully detained or held against their will
- Submitting due to the person being in a position of trust.
- 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.
The police will also need to prove that the defendant was the person who committed the sexual assault offence.
What penalties can be imposed for a Sexual Assault charge?
The maximum penalty for a charge of sexual assault is 14 years imprisonment. However, this is reserved only for the most serious matters (source). Sexual assault charges are strictly indictable, meaning that they can only be finalised in the District Court. The court can impose any of the following penalties for a sexual assault charge:
- Section 10: A Section 10 avoids a criminal record. Usually, if a defendant pleads guilty to a criminal offence, the Court will impose a penalty and record a conviction, which gives the defendant a criminal record. However, if a solicitor from CM Lawyers can convince the court not to convict you, there will be no penalty of any type, and no criminal record, instead giving the defendant a Section 10 dismissal.
- 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): In order 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 center 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 good behaviour 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 into 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 a number of conditions, which include: attending counseling 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.
It is worth noting that statistics have shown that no offenders charged with sexual assault were given the maximum penalty of 14 years imprisonment between 2003 and 2007. The most common penalty for sexual assault offences was imprisonment, with the average sentence being five years and 4.5 months. While the statistics appear harsh, it’s worth noting that the solicitors at CM Lawyers work hard for their clients to get the best possible outcome.
In some cases, this may mean getting the charges dismissed if the accused puts forth an appropriate defence. Contact CM Lawyers today to speak to one of our experienced solicitors and discuss your options moving forward.