Defences and Penalties for Sexual Assault Offences in NSW

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29-year-old property developer Longwei Xu was charged and found guilty following an 8-day jury trial for sexual assault, and indecent assault charges.

Mr. Xu was sentenced by District Court Judge Norman on Friday October 12, resulting in an imprisonment sentence of two and a half years behind bars, with a balance of one and a half years of the sentence on parole.

The victim was a 20-year-old model that Xu had invited to an exclusive Sydney dinner party hosted by Chinese billionaire, Richard Liu.

Richard Liu, founder of the online marketplace JD.com, is recognised as one of China’s richest men with wealth and business connected to Australia.

The dinner party was hosted at the billionaire’s multimillion-dollar penthouse in order to host a birthday party for Mr. Xu who had also invited the 20-year-old young model.

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The Evidence Against Mr. Xu

The Jury returned a guilty verdict after hearing evidence that he had earlier invited the victim to the exclusive party before encouraging her to drink alcohol throughout the night.

When the woman was intoxicated to an extent that she wasn’t able to sit or stand properly Xu first offered to take her home, but instead of taking her home, he took her to his Shanri La Hotel room in the Rock, Sydney before trying to have sexual intercourse with her for about an hour on boxing day 2015.

The woman gave evidence in court, that Xu had thrown her mobile phone away, removed her clothes forcibly before ‘digitally’ raping her as she struggled underneath him in the hotel room.

“She said that Mr. Xu removed his clothes and pinned her down. She said that she struggled and said ‘no’, she said that Mr. Xu forcibly removed her cardigan and her dress. She said at one stage that Mr. Xu said to her that she could not refuse him,” Judge Norman said in court.

Judge Norman also said that the woman was without a doubt intoxicated to a high extent by the time she arrived at the hotel room, categorising the attack as ‘opportunistic’, adding, “I determine that Mr. Xu took advantage of the victim’s alcohol-rendered vulnerability…he was optimistic that his charm and apparent connection to wealth would persuade the woman to yield to him… the offences were committed through force, fear and perseverance”.

Mr. Xu was represented by defence barrister Senior Counsel, Mr. Winston Terracini who publicly announced to the media that his client continues to deny the offence. Mr. Terracini said, “he is fully aware that as a result of making that submission through me, it impacts upon any statements of regret or remorse.”

Mr. Xu will face deportation upon release from prison and is eligible for parole in the first month of 2021.

Defences and Penalties for Sexual Assault Offences

A person guilty of sexual assault without consent will face a penalty of up to 14 years behind bars under section 61I of the Crimes Act 1900 (NSW). This offence is referred to as a ‘strictly indictable’ offence which means it must be eventually finalised in the District Court, not Local Court.

A term of imprisonment usually includes a ‘parole period’ and ‘non-parole period’. These two periods combined together makes up the total sentence of imprisonment.

The non-parole period is the period an offender must spend in prison, while the parole period is the period an offender is released back into the community ‘on parole’, usually with supervision, to spend the rest of the sentence outside. Breaching a parole period can result in an offender going back into jail to serve the remainder of the sentence in custody.

Sexual assault is an offence that also carries a ‘standard non-parole period’ of 7-years if found guilty.

The 7-years ‘standard non-parole period’ is the minimum period of full-time custody that is suggested for a Judge to impose for offenders who fall in the middle of the range of objective seriousness for this offence.

The 7-years ‘standard non-parole period’ is not a compulsory rule and is only to be used as a reference or guide for a Judge in trying to come to an appropriate sentence for an offender.

To prove someone guilty for sexual assault without consent, the prosecution are required to first prove each of the following elements of this crime in court:

There was ‘sexual intercourse’ between the accused and the alleged victim; and
The alleged victim didn’t consent to the ‘sexual intercourse’; and
The accused person had knowledge that the alleged victim didn’t consent at the time.

What is ‘Sexual Intercourse’ Under the Law?

Sexual intercourse can mean the following:

Where the alleged victim’s genitalia was sexually penetrated. This can include the penetration of the anus by any body part of the accused.
The introduction of the accused penis into the alleged victim’s mouth.
The oral stimulation of the alleged victim’s genitals by the accused.
Sexual intercourse can include penetration of the lips or the licking or sucking of the genitalia which includes the vagina or penis.

The Law on Whether the Accused Knew That There Was No Consent

Under the law, an accused person is considered to have known that there was no consent by the alleged victim in each of the following situations:

If the accused was ‘reckless’ as to whether or not there was consent. This means, either one of the following:
1. The accused had sexual intercourse without caring if the alleged victim consented; or
2. The accused turned his/her mind to the possibility that the alleged victim wasn’t consenting; or
3. The accused didn’t even turn his/her mind as to whether the alleged victim was consenting (considering it as irrelevant); or
Where the accused raises the defence of believing on reasonable grounds that there was consent: the accused is considered to have known that there was no consent if the court finds that there was no reasonable basis to have held that belief; or
The accused knew there was an absence of consent.

In determining whether the accused had the knowledge as to whether the alleged victim consented to the sexual intercourse at the time, the law allows the jury to look deep into the circumstances of the case, including any steps taken by the accused to ascertain whether there was consent.

Can You be Guilty of Sexual Assault When the Alleged Victim Gives Consent?

The law on consent in sexual assault cases can be complex.

The law says that there was no consent even if the alleged victim consented to sexual intercourse in any one of the following circumstances:

Where the alleged victim was ‘substantially intoxicated from drugs or alcohol at the time; or
Where the alleged victim didn’t have the capacity to give consent due to age or cognitive incapacity; or
Where the alleged victim was asleep or unconscious with no opportunity to give consent; or
Where the alleged victim was illegally detained; or
Where the alleged victim gave consent from threats, terror or force; or
Where the alleged victim was mistaken as to the accused person’s identity; or
Where the alleged victim was mistaken as to being married to the accused person; or
Where the alleged victim had sexual intercourse due to the accused person abusing his/her position of trust or authority; or
Where there were threats, coercion or intimidation without any threats of force.

What is the Legal Age to Have Sexual Intercourse?

It is a criminal offence to have sexual intercourse with a person aged under 16 years. This is reflected in section 66C of the Crimes Act 1900 (NSW). The penalties for this depend on the age of the victim, and ranges between 10 to 16 years imprisonment.

For an outline on this see our blog on the law and penalties for child sex offences.

Can You be Guilty of Sexual Assault if the Alleged Victim Doesn’t Resist During Intercourse?

The law makes it very clear that failure of the alleged victim to resist the sexual intercourse (as an only factor) does not necessarily amount to consent under section 61HE(9) of the Crimes Act 1900 (NSW).

However, the failure of psychically resisting the sexual intercourse at the time can be one of many of the factors that a jury are entitled to consider whether or not there was consent.

Can Past Sexual History of the Alleged Victim be Used in Court?

The alleged victim’s past sexual experience(s) or reputation is normally not allowed to be used as evidence in court to prove consent or to attack the credibility of the alleged victim as a witness in court.

In certain specific situations, the alleged victim’s sexual reputation and/or past sexual experiences can be used in court under section 293 of the Criminal Procedure Act 1986 (NSW) in any one of the following situations:

Where the accused person and alleged victim were in a relationship existing at the time or recent to the time of the alleged sexual assault; or
Where the accused denies every having sexual intercourse with the alleged victim; or
Where the sexual experience or activity took place close to or at the time of the sexual assault allegation. This only applies if the sexual experience or activity you wish to use as evidence will form part of a connected set of circumstances of the alleged sexual assault.

See blog for an outline on whether a sexual assault offence can be considered less serious by the Courts if the victim has a pre-existing relationship with the offender.

Our sexual assault lawyers Sydney team can help with a more thorough analysis of your case.

Defences to Sexual Assault Without Consent

A sexual assault charge will be dismissed if any one or more of the following defences apply:

Absence of any sexual intercourse: This is where a case runs on the basis that the accused person didn’t have any sexual intercourse with the alleged victim. This can be strengthened where DNA evidence shows no traces of the accused DNA on the alleged victim’s body, or it shows traces of someone else which excludes the DNA of the accused. The absence of DNA linking the accused to the alleged victim isn’t conclusive evidence of the fact that there was no sexual intercourse between the two. But it certainly can help strengthen this defence.
Consent: The alleged victim gave consent at the time. This can be inferred from the surrounding evidence that gets produced in court.
Reasonable grounds defence: The accused had reasonable grounds for holding the belief that the alleged victim did consent. Whether or not the grounds held were reasonable will depend on the surrounding circumstances of the case.
Medical purposes: This is where the sexual intercourse was done for medical reasons by consent.

Have any questions arising from this blog? We are available 24/7 and appear in all courts, including Newcastle Local Court. With 8 offices across NSW, we also have criminal defence lawyers in Newcastle, Wollongong, and Penrith.

Sexual assault charges can ruin lives and affect dependants. This article tries to provide more information on these types of charges.

Published on 13/10/2018