Criminal Defence Lawyers for Aggravated Sexual Assault

Aggravated sexual assault is a ‘strictly indictable offence’ which means that it must be dealt with in by a higher court, such as the District Court.

Section 61J of the NSW Crimes Act prescribed a maximum penalty of 20 years imprisonment.

Aggravated sexual assault is defined as having ‘sexual intercourse’ with another person without that person’s ‘consent’ while knowing that the other person is not consenting and where there are ‘circumstances of aggravation’.

‘Circumstances of aggravation’ are where:

• actual bodily harm is inflicted,
• there are threats to use a weapon,
• more than one person is with the alleged offender,
• the complainant is under 16,
• the complainant is under the authority of the alleged offender, eg a student,
• the complainant is mentally impaired,
• breaking and entering is involved,
• the complainant is deprived of their liberty.

‘Sexual intercourse’ is any penetration of a female’s genitals, or any person’s anus, by any object.

It also includes any penetration of a person’s mouth by any part of a penis and cunnilingus.

‘Consent’ is when someone voluntarily and freely agrees to the intercourse.

There is no consent if the other person:

• is under-age or lacks mental ability,
• is unconscious or asleep,
• is threatened with force or terror,
• is mistaken as to your identity, or mistakenly believes you are married to each other, or mistakenly believes that your actions are for medical or hygene purposes.

Pleading Not Guilty

If you don’t agree with the allegations, it is important to get a specialist sexual assault lawyer who is experienced in getting charges dropped, winning sexual assault trials and – if you wish to plead ‘guilty’ – having the charge reduced to a less serious charge and working hard to get you the best result in the circumstances.

This can be achieved by:

• Obtaining any statements and materials that support your case or undermine the complainant’s case,
• Writing and advising the prosecution of inconsistencies and other weaknesses in the case against you,
• Advising the prosecution that one or more of the ‘essential elements’ of the charge cannot be established, eg that they cannot prove a ‘lack of consent’ or a ‘circumstance of aggravation’,
• Advising the prosecution that you have a valid defence, and
• Pressing for the withdrawal of the case or negotiating a less-serious charge such as ‘indecent assault’.

If the prosecution refuses, your defence lawyer should fight hard to win the case in court.

Defences

Your lawyer can advise you if any of the following defences apply:

Consent

This is when the complainant has freely and voluntarily agreed to the act.

Consent is not available in certain cases, eg if the complainant is under the age of 16 years or has a cognitive impairment.

Proper medical purpose

This is where the act was necessary to perform a recognised medical procedure.

Self defence

This is when you are defending yourself, another person or property from an aggressor or thief.

Necessity

This is when you are in an emergency situation and commit the alleged offence to get away.

Duress

This is when you are forced to commit the offence.

Pleading Guilty

If you wish to plead guilty, any of the following penalties may apply:

Non Conviction Order

This means that you are guilty but the court does not impose a criminal conviction upon you.

The court will look a range of matters when deciding whether to grant a ‘section 10 dismissal or conditional release order’ – including the incident itself, the lead-up to the incident, your general character and your personal circumstances.

Good behaviour bond

This means that you cannot commit any further offences for the duration of the bond.

The bond may have additional conditions, such as seeing a Community Corrections officer and complying with their directions.

Community service order

This means that you must undertake a specific number of hours of unpaid work over a 12 month period.

The maximum is 500 hours.

Community service orders are not available to all defendants or for all ‘sex offences’.

Your lawyer will be able to advise whether community service is available to you.

Intensive correction order

This means that you come under the supervision of the Department of Corrections and are required to undertake 32 hours of community service work per month.

You may also be required to undertake rehabilitation programs, attend conferences and be subjected to urinalysis and monitoring.

Intensive correction orders can last up to 2 years.

Intensive correction orders are not available to all defendants or for all ‘sex offences’.

Your lawyer will be able to advise whether an intensive correction order is available to you.

Home detention

This means that you must generally stay at home for the duration of your sentence, subject to exclusions such as approved work or attending medical appointments or counselling.

Home detention orders can last up to 18 months.

Home detention orders are not available to all defendants or for all ‘sex offences’.

Your lawyer will be able to advise whether home detention is available to you.

Suspended sentence

This is when you are sentenced to a period of imprisonment, but are not actually sent to prison as long you comply with any conditions and do not commit any further offences.

Suspended sentences can last up to 2 years.

Full time prison

This is when you are sent to gaol.

Full time imprisonment can only be imposed if no other alternative is appropriate in the circumstances.

Call our experienced criminal lawyers today for a free first appointment where we can discuss your case and advise you of the best way forward.

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