In NSW, “Sexual Assault” carries a maximum penalty of 14 years imprisonment. “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 a sexual assault charge.
- Prison Sentence
- Home Detention
- Intensive Corrections Order (ICO)
- Suspended Sentence
- Community Service Order (CSO)
- Community Corrections Orders (CCO)
- Good Behaviour Bond
- Section 10A
- Conditional Release Order (CRO)
- Section 10
You can find a brief description of each of these penalties at the bottom of this page.
The Offence of 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 Actions Might Constitute Sexual Assault?
Sexual Intercourse is defined in section 61HA of the Act. This section states that sexual intercourse means:
- (a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:
- any part of the body of another person, or
- any object manipulated by another person, except where the penetration is carried out for proper medical purposes, or
except where the penetration is carried out for proper medical purposes, or
- (b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or
- (c) cunnilingus, or
- (d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).
Consent is addressed at length in section 61HE of the Act. This section provides: “A person consents to a sexual activity if the person freely and voluntarily agrees to the sexual activity.”
The remaining subsections detail scenarios in which a person is deemed to know that there is no consent from another, circumstances in which an alleged victim cannot consent or circumstances where the alleged victim is deemed to have not consented.
For example, an alleged offender is taken to know that there is no consent from the other person if they are reckless as to whether there is consent or if they have no reasonable grounds to believe that the other person is consenting.
This section states that the Judge or Jury must have regard to all the circumstances of the case, including steps taken to ascertain whether or not there is consent to make this determination.
It is important to note that the Judge or Jury cannot take into account your self-induced intoxication in determining whether or not you reasonably believed that the other person had consented to sexual activity.
This section also lists a series of circumstances in which a person cannot consent to sexual activity, for example, if they do not have the capacity to consent, if they are asleep or unconscious or they are under threats of force or terror.
This section also provides that a person who consents to sexual activity but does so under a mistaken belief is not taken to have consented. for example, if the alleged victim believes that you are another person or that the sexual activity is for health or hygienic purposes.
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?
This matter is strictly indictable, meaning it will be finalised in the District or Supreme Court.
Types of Penalties:
Home Detention for a 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 a 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 a 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 a 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 a 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 a 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.
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 a 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.