Aggravated Sexual Assault

Aggravated sexual assault occurs where an offender engages in sexual intercourse with another person in circumstances of aggravation and is reckless as to whether that other person has consented to the sexual intercourse

If you’ve been charged with Aggravated Sexual Assault, having a trusted and experienced criminal defence lawyer by your side will take away a lot of the stress of facing these allegations.

Our Lamont Law lawyers will significantly improve your chances at getting the best possible outcome by exploring all your options.

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Aggravated Sexual Assault Overview

Aggravated sexual assault occurs where an offender engages in sexual intercourse with another person in circumstances of aggravation and is reckless as to whether that other person has consented to the sexual intercourse: s 61J(1) Crimes Act.

This offence makes an offender liable to imprisonment for 20 years. If the offender committed an aggravated sexual assault in company they become liable to life imprisonment: s 61JA(1) Crimes Act.

Circumstances of aggravation have been defined in s 61J(2) Crimes Act to mean circumstances in which:

a. At the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or

b. At the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or

(b1) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict grievous bodily harm or wounding on the alleged victim or any other person who is present or nearby, or

c.The alleged offender is in the company of another person or persons, or

d.The alleged victim is under the age of 16 years, or

e.The alleged victim is (whether generally or at the time of the commission of the offence) under the under the authority of the alleged offender, or

f.The alleged victim has a serious physical disability, or

g.The alleged victim has a cognitive impairment, or

h.The alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offender or any other serious indictable offence, or

i.The alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence.

Whilst not being an exhaustive list, the circumstances of aggravation which are explicitly referred to under s 61J(2) all give rise to one underlying commonality which is found to substantially aggravate the sexual conduct.

This commonality is this the vulnerability of the complainant which is allegedly manipulated and exposed by the offender. This section is concerned with the “protection of the vulnerable from sexual exploitation and violation”: per Kirby J MLP v R [2006] NSWCCA 271 at [22].

The circumstances which are listed under s 61J(2) are not in any means an exhaustive list and are not to accorded equal weight in their objective seriousness: Thorne v R [2007] NSWCCA 10 at [82]. An example of a circumstance which would be accorded a greater deal of weight and would constitute an aggravated sexual assault under this section would include a sexual assault which has been committed in company. This is because of the amount of individuals who are involved in the assault, the low tolerance which is afford to this propensity of violence and the substantial deprivation of the complainant’s liberty: R v Hoang [2003] NSWCCA 380 at [40].

Prosecutorial burden

In demonstrating that an offender has committed an aggravated sexual assault, the prosecution must demonstrate the following elements beyond reasonable doubt:

1. The person had sexual intercourse with another person;
2. The other person did not consent;
3. The offender knew or was reckless as to the consent of the other person;
4. The sexual intercourse has occurred in circumstances of aggravation; and
5. If applicable, the sexual intercourse occurred in company.