SEXUAL OFFENCES DIVISION 10 OFFENCES
The Crimes Act 1900 (NSW) (‘the Act’), in Division 10 specifies offences in the nature of rape, offences relating to other acts of sexual assault etc. Cumulatively, these offences are often referred to as ‘Sexual Offences’. Specifically, they include but are not limited to specific charges such as: (a) Sexual Assault (s61I); (b) Assault with intent to have Sexual Intercourse (s61K); (c) Aggravated Sexual Assault (s61J) and Aggravated Sexual Assault in Company (s61JA); (d) Indecent Assault and Aggravated Indecent Assault (s61L and s61M); as well as (e) Acts of Indecency and Aggravated Acts of Indecency (s61N and s61O).
Sexual Offences are widespread and prevalent, however, statistical data may not always be accurate given factors such as barriers to disclosure, low rates of reporting, varying definitions of sexual assaults and abuse, making this a particularly hidden type of violence. As per the Australian Bureau of Statistics 2012 release of the Personal Safety Survey, 17% of women aged 18 or over have been sexually assaulted where as 83 % have not been assaulted or remain undisclosed. The survey also indicated that over half of the women surveyed (57%) had experienced at least one incident of sexual or physical violence over their lifetime.
SEXUAL ASSAULT, AGGRVATED SEXUAL ASSAULT AND AGGRAVATED SEXUAL ASSAULT IN COMPANY
Section 61I of the Act contains the offence of sexual assault, ‘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.’ As per the Act, sexual intercourse involves the penetration of the vagina or anus of a person using a body part or an object or oral sex. Importantly, the definition of consent as required by the section is also noted in the Act. It denotes that the offender is to know that the other is not consenting even if the offender is just reckless as to whether the second person is consenting. The law also states that a person is taken to ‘know’ that the other person is not consenting if the offender has no reasonable grounds upon which to conclude that the other person was consenting. As such, the Court must be convinced beyond reasonable doubt that intercourse occurred, without consent and with knowledge of the lack of consent. Defences thus include the denial of any of these three factors.
Recently, Luke Lazarus, a member of security for his family-affiliated nightclub, Soho (Kings Cross) was sentenced to a maximum of five years for anally assaulting an 18 year old. The pertinent issue in this case was that of consent. While Lazarus stated that he believed the interaction to be consensual, the victim urged that it was not.
In some instances, the charge of sexual assault is one, which may be ‘aggravated’ (s61J). Potential circumstances in which such aggravation may occur include:
- Infliction of an injury on the alleged victim (s61Ja), or
- Threat of an injury by the accused by use of a weapon or instrument (s61Jb), or
- The accused acts along with another person (s61Jc), or
- An alleged victim aged under 16 (s61Jd), or
- Where the alleged victim is "under the authority" of the alleged offender (s61Je), or
- The alleged victim having a serious physical disability (s61Jf), or
- The alleged victim having a cognitive impairment (s61Jg), or
- The alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence (s61Jh), or
- The alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence (s61Ji).
Penalties may thus include: (a) Jail term (including full time detention at a correctional facility), (b) Home Detention, (c) Intensive correction orders, (d) Suspended sentencing, (e) Community service order or (f) Good behavior bond (max. 5 years).
INDECENT ASSAULT AND AGGRAVATED INDECENT ASSAULT
Indecent Assault under section 61L of the Act carries a maximum penalty of 5 years imprisonment and is defined as, ‘Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person’. Indecent assault may result from a slight touch to an unwanted kiss. Similarly, an aggravated indecent assault (s61M), occurs in circumstances of aggravation. Penalties are 7 years on a normal occurrence and 14 years if the victim is under the age of 16. As per section 61M(3), circumstances of aggravation include: (a) the alleged offender is in the company of another person or persons, or (b) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (c) the alleged victim has a serious physical disability, or (d) the alleged victim has cognitive impairment. Notably, the specific elements, which the police must prove, must all be proven cohesively. The types of penalties are similar to those available for other assaults.
ACTS OF INDECENCY AND AGGRAVATED ACTS OF INDECENCY
Section 61N denotes the sentencing in relation to acts of indecency. An act of indecency is one, which while of a sexual nature does not involve touching or penetration. If such acts are committed upon those under the age of 16, the maximum time of imprisonment is 2 years. If such acts are committed against those who are about the age of 16, the maximum time of imprisonment is 18 months. Such acts are considered to be aggravated as per section 61O if circumstances of aggravation exist. These included cognitive impairment, physical disability, a relationship between the offender and the victim (such as a child under the authority of an elder relative) or the presence of other while such indecent acts are committed. Moreover, the section denotes circumstances where filming of those under the age of 16 may occur of such acts for the purpose of child abuse material.
If you are arrested or being investigated, for a sexual assault charge, or an indecent assault charge. Contact our Criminal Lawyers in Sydney it is imperative you have the best Sex Offence Lawyers on your side.
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Guest Author: Dribbin & Brown Criminal Lawyers Melbourne
If you have been charged with a sexual offence in Melbourne, we recommend you visit Dribbin & Brown's Sex Offence Lawyers