Aggravated Sexual Assault

The offence of Aggravated Sexual Assault carries a maximum penalty of 20 years imprisonment. 

What is Aggravated Sexual Assault?

The offence of Aggravated Sexual Assault is contained in section 61J of the Crimes Act 1900 which states:

Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to sexual intercourse is liable to imprisonment for 20 years.

Aggravated Sexual Assault is the charge that is used for any rape offences in NSW which occurred under aggravating circumstances. It includes all different kinds of sexual intercourse.

Breakdown of Terms

The definition of sexual intercourse is defined in section 61HA of the Crimes Act, as meaning:

• Penetration of the vagina or anus of a person using a body part or an object or;
• Oral sex.

‘Aggravating’ factors in relation to this offence are things such as alcohol/illicit substance intoxication and age.

What does ‘Consent’ mean?

Consent in relation to Sexual Assault offences is defined within section 61HI of the Crimes Act 1900. Consent is a very complicated legal term, you can read more about this in detail (LINK TO PAGE). 

The following acts constitute Aggravated Sexual Assault?

• Having penile vaginal penetrative sex with someone who is under the age of 16 without their consent;
• Performing oral sex without someone’s consent when they are under the influence of illicit drugs;
• Having sex with someone who has a serious physical disability or cognitive impairment;
• Breaking into a property with the intention of committing this offence;

What Must Be Proven?

For a person to be convicted of Aggravated Sexual Assault, the Prosecution must prove each of the following matters beyond a reasonable doubt:

• You had sexual intercourse with another person;
• You had sexual intercourse with another person under circumstances of aggravation;
• That other person did not consent;
• You knew that person did not consent OR
• You were reckless as to whether they consented; OR
• The belief you held that the person was consenting, wasn’t reasonable;

If the Prosecution does not prove every single one of the above elements, you will be found not guilty. 

Which Court Will Hear the Matter?

This offence is Strictly Indictable, which means that it must be finalised (either by way of a trial or sentence) in the District Court. The matter will still start in the Local Court and it will be subject to the Early Appropriate Pleas of Guilty (EAGP) Scheme.

Possible Defences for Aggravated Sexual Assault

The possible ways to defend an Aggravated Sexual Assault charge include but are not limited to:

• Denying that the Sexual Assault occurred
• Denying that the Sexual Assault occurred under circumstances of aggravation
• Claiming there was consent
• Claiming that there was a reasonable belief that there was consent

Common Questions about Aggravated Sexual Assault

Will I Receive a Criminal Conviction?

A conviction and criminal record for this offence is very likely. In fact, even for people with no prior criminal record, the most likely sentence is one of full time imprisonment if you are found guilty. 

In New South Wales, a Court can impose any of the following penalties for an Aggravated Sexual Assault charge:

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and an Aggravated Sexual Assault conviction might jeopardise your job or make it difficult to obtain visas for overseas travel. These matters are incredibly serious and it is important that you obtain expert legal advice.

Will I go to gaol for an Aggravated Sexual Assault charge?

In most instances if you are found guilty of an Aggravated Sexual Assault offence, you will be sentenced to a gaol term of some years. The standard non-parole period for this offence is 10 years. 

Will I end up on the sex offender register?

If the complainant in your matter was under the age of 18 years, it is probable that you will be on the sex offender register. 

How long would this offence stay on my criminal record for?

This offence will stay on your criminal record for life. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.