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Aggravated Sexual Assault


Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

"Aggravated Sexual Assault" has a maximum penalty of 20 years whilst "Aggravated Sexual Assault in Company" has a maximum penalty of life imprisonment.

Sexual assault is an offence that would usually (but not always) result in full time imprisonment if a person is convicted. This is true even where a person has no previous convictions.

In NSW, a court can impose any of the following penalties for an aggravated sexual assault charge.

You can find a brief description of each of these penalties at the bottom of this page.

The offence of Aggravated Sexual Assault:

The offence of Sexual Assault is contained in section 61I of the Crimes Act 1900 which 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.

In other words, this means:

  • Sexual intercourse
  • Without the other person's consent
  • Knowing the other person does not consent

What does "sexual intercourse" mean?

Sexual intercourse means:

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

What does "consent" mean?

Consent in relation to sexual assault offences is defined in the Crimes Act 1900.

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 does "Aggravated Sexual Assault" mean?

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

What actions might constitute Aggravated Sexual Assault?

  • Police can charge you with an offence under this section if you commit the offence of sexual assault in circumstances of aggravation.
  • Our web page on sexual assault provides commentary and examples of actions that might constitute sexual assault. That commentary is directly applicable to this charge.
  • Subsection (2) provides an exhaustive list of circumstances of aggravation, which are:
    • If, at the time of or immediately before or after the offence, you intentionally or recklessly inflicted actual bodily harm on the alleged victim or any other person who was present or nearby;
    • If, at the time of or immediately before or after the offence, you threatened to inflict actual bodily harm on the alleged victim or any other person who was present or nearby by means of an offensive weapon or instrument;
    • If, at the time of or immediately before or after the offence, you threatened to inflict grievous bodily harm or wounding on the alleged victim or any other person who was present or nearby;
    • If you committed the offence in the company of another person or persons;
    • If the alleged victim was under 16 years of age;
    • If the alleged victim was under your authority;
    • If the alleged victim has a serious physical disability;
    • If the alleged victim has a cognitive impairment;
    • If you break and entered into a dwelling-house or other building with the intention of committing the offence of sexual assault or another other serious indictable offence (that is, an offence that is punishable by imprisonment of five years or more); or
    • If you deprived the alleged victim of their liberty before or after the commission of the offence.

What does "Aggravated Sexual Assault In Company" mean?

This is where the accused person commits the offence in the company of another person, and further that one of the following elements is present:

  • Infliction of an injury on the alleged victim
  • A threat to inflict an injury on the alleged victim
  • The alleged victim being denied their liberty before or after the offence

What the police must prove:

To convict you of Sexual Assault, the prosecution must prove each of the following matters beyond a reasonable doubt:

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

Possible defences for Sexual Assault:

Possible ways to defend a charge of Sexual Assault include but are not limited to:

  • Denying that sexual intercourse occurred
  • Claiming there was consent
  • Claiming that there was a reasonable belief that there was consent

Which court will hear your matter?

These matters are strictly indictable, meaning it will be finalised in the District or Supreme Court.


Types of penalties:

Jail for an Aggravated Sexual Assault charge: This is the most serious penalty for this charge and involves full time detention in a correctional facility. Read more.

Home Detention for an Aggravated Sexual Assault charge: As a result of amended legislation this penalty was repealed on 24 September 2018 as a standalone order but may be imposed as a condition of an Intensive Corrections Order (ICO). Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring. Read more.

Intensive correction order for an Aggravated Sexual Assault charge (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.

Suspended sentence for an Aggravated Sexual Assault charge: As a result of amended legislation this penalty was repealed on 24 September 2018. This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.

Community service order for an Aggravated Sexual Assault charge (CSO): As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.

Good behaviour bond for an Aggravated Sexual Assault charge: As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.

Community Corrections Orders (CCO): A CCO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the Community Corrections Orders (CCO). Additional conditions may be imposed at the discretion of the court, both at the time of sentence and subsequently upon application by a community corrections officer, juvenile justice officer or the offender. Read more.

Fines for an Aggravated Sexual Assault charge: When deciding the amount of a fine for a this charge the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Section 10A: A section 10A is a conviction, with no other penalty attached to it. Read more.

Conditional Release Order (CRO): A CRO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the CRO. Read more.

Section 10 for an Aggravated Sexual Assault charge: Avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.


where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

Why Choose Armstrong Legal?

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