Case law/Jurisdiction
An offence of Sexual Assault is strictly indictable, meaning it will be finalised in the District or Supreme Court.
The nature and elements of the offence of Sexual Assault were considered in the case of R v Beserick (1993) 30 NSWLR 510 which held:
“The Crown must prove that the complainant, being aware that it was an act of a sexual nature, did not consent to the physical act of the accused, and it is irrelevant that the complainant failed to appreciate that the act was morally and criminally wrong”.
The Law
The Law in relation to Sexual Assault is found in section 61I 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.”
Sexual intercourse means:
“Penetration of the vagina or anus of a person using a body part or an object or
Oral sex”
Consent in relation to sexual assault offences is defined in the Crimes Act 1900 (NSW).
The law explains the first person knows that second person is not consenting even if the first person is just reckless as to whether the second person is consenting. This includes circumstances where a person does not know if the second person is consenting, realises they might not be consenting, but goes ahead anyway.
The law also says that a person is taken to “know” that the other person is not consenting if the first person has no reasonable grounds upon which to conclude that the other person was consenting.
What must the prosecution prove?
Since 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 Sexual Assault.
To establish 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??
If you are charged with the offence of Sexual Assault what are your options?
National Criminal Lawyers have been successful in defending a number of Sexual Assault charges where the prosecution could not establish each of the elements offence.
NCL offer the following options for those who have been charged with Sexual Assault:
- 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;
- NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
- 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
- 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.
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.
For the offence of Sexual Assault offenders can be punished with a prison sentence of up to 14 years.
Please note that the penalties mentioned are reserved for the worse case offending and are unlikely to be the penalty you receive.
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.
Some of the possible defences available for those charged with Sexual Assault can include:
- Denying that sexual intercourse occurred
- Claiming there was consent
- Claiming that there was a reasonable belief that there was consent
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.
For Sexual Assault 25 % received full time imprisonment
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)
Our client had no criminal convictions but was charged with Sexual Assault of a young woman while on holiday in Newcastle. It was alleged that he poked her crotch with an umbrella in a sexual manner and penetrated her vagina. It was further alleged that he tried to kiss her and that he suggested they go to his room together. The client gave a no comment interview as well as denied the offending. We conducted negotiations with the prosecution, indicating the weaknesses in the prosecution case. The prosecution ultimately agreed to withdraw the charges and our client remain conviction free.
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 Sexual Assault offence our Team at National Criminal Lawyers are well-versed and specialists in having charges either withdrawn and otherwise achieving favourable outcomes.
Please contact us for more information about your options.