Sexual Assault Laws in NSW

 

On Thursday 10 January 2019, a NSW police officer was arrested and charged for allegedly sexually assaulting someone inside an inner-western Sydney home last year in September.

The NSW police professional standards command had commenced investigations into this late last year.

It is reported that the police officer charged in this was employed in a specialist command role.

The accused police officer is now facing charges of sexual assault and an apprehended domestic violence order (AVO).

Whilst the officer’s job is currently under review, he is next required to appear at the Burwood Local Court on 24 January 2019.

On another note, a 43-year-old senior constable from Mount Druitt Police Station was arrested in October of last year for a number of alleged sexual offences, including aggravated act of indecency, aggravated indecent assault, attempt to have sexual intercourse with a child under the age of 10, grooming a child under the age of 14 for unlawful sexual activity and having sexual intercourse with a child aged 10-14.

The Mt Druitt police officer was refused bail.

What are the Options for Victims of Sexual Assault in NSW?

The NSW Police Force, provide a number of options for victims of sexual assault. This includes:

  1. Contact the nearest police station to make a formal complaint for police to then commence a formal investigation. Police will require a written/typed statement from the victim. Police will also arrange medical and/or counselling support; or
  2. Alternatively, a victim can fill out a sexual assault reporting options questionnaire. The investigation can lead to an arrest and charge. This will not result in a formal investigation, but it does help police be proactive. It can also help police find the perpetrator. If police believe that the perpetrator has been found, then the victim may be discretely contacted to give the option of taking it further; or
  3. A victim may approach a support service. NSW Rape Crisis Centre can be contacted on 1800 424 017.

False Accusations

There are heavy penalties for making false accusations where you intend the allegation to result in investigations in circumstance you know that the person accused is innocent.

Under section 314 of the Crimes Act 1900 (NSW), anyone guilty of this offence will face a penalty of up to 7-years imprisonment.

False reports like this are difficult to prove. For example, the United Kingdom have reported 3,692 prosecutions for sexual assault in 2012/13. 2,333 from this were found guilty.

It is difficult to see the realistic figures of how often false accusations are made. This is largely because the police sometimes record a case as ‘unfounded’ in circumstances the police can’t obtain credible evidence to be in a position to have it admissible in court.

Such cases have been included as ‘false allegations’, which has the effect of being conflated.

Sexual Assault Offences in NSW

Sexual assault is an offence under section 61I Crimes Act 1900 (NSW) carrying a maximum penalty of up to 14-years jail.

It’s a criminal charge that commences in the Local Court proceedings, but eventually dealt with in the District Court.

It is also considered a ‘standard non-parole’ offence which means that, an offender can end up getting a sentence with a minimum non-parole period of 7-years if the offending conduct constituting the sexual assault falls in the middle of the range of objective seriousness for offences of this kind.

This means that an offender will spend at least 7-years behind bars before being eligible for release on parole for a specified period.

The 7-years standard non-parole period for this offence is not compulsory for a Judge to impose where the offence does fall in the mid-range of objective seriousness. Although it is used as a guide to come to an appropriate non-parole period for the sentence.

A person will be guilty of sexual assault if:

  1. An accused person had sexual intercourse with the victim; and
  2. The victim did not consent to it; and
  3. The accused person knew that the victim did not consent to it.

The law treats an accused person as having known that the victim didn’t consent to sexual intercourse where:

  1. From conduct or words by the accused before, during and/or after the alleged incident, the court can infer that the accused knew that there was no consent by the victim at the time; or
  2. If the accused raises the defence that he/she honestly believed the victim was consenting at the time, that belief was either not honest, or if it was honest, there was not a reasonable basis to have believed that the victim was consenting at the time; or
  3. The accused was reckless about the victim consenting by:
    • Not caring whether the victim was consenting; or
    • Considering the issue of whether the victim provided consent as irrelevant. i.e. not even turning the mind to whether the victim was consenting; or
    • Turning the mind to the possibility that the victim wasn’t consenting but doing it anyway.

You will be found not guilty, or even have the charges withdrawn by police early if any of the following defences apply to a sexual assault allegation:

  • You honestly believed the victim consented in circumstances it was reasonable for you to have held such a belief at the time. Voluntary intoxication of drugs or alcohol is an irrelevant consideration here.
  • Genuine medical purposes.
  • Mistaken identity where the perpetrator is not the accused.
  • The prosecution fails to prove that the alleged victim did not actually consent.
  • The prosecution fails to prove that the accused knew in any of the above outlined ways that the alleged victim didn’t consent.
  • The prosecution fails to prove that the perpetrator was in fact the accused.
  • The prosecution fails to prove that a sexual intercourse took place between the parties.

Sexual intercourse involves penetration of the anus or vagina by any part of the body or an object. It also includes the insertion of a penis into a mouth or oral stimulation of the genitals.

About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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