Sexual Assault Penalties Guide in NSW

 

It is reported that a Sydney GP doctor for his own sexual gratification has sexually assaulted patients.

63-year-old Dr. Sharif Fattah had pleaded not guilty to eighteen sex charges.

He was found guilty by the Parramatta District Court for committing these crimes to sixteen females aged from 19 to 35.

The victims sat Fattah for trivial medical reasons, from weight gains, removal of moles and broken finger.

Judge Harris remarked the crimes as deceptive and “gross breach of trust”.

“He manipulated the consultation to examine the genital area of his patients”.

While Fattah maintained his innocent, claiming he the examinations were for a “proper medical purpose”, he had performed unnecessary medical examinations on the victims.

The Court heard that the crimes occurred while he performed medical consultations on each woman over a period of 6-months from September 2016.

The District Court also heard, that he would question the women on occasions during the assaults whether “that was pleasurable for you”.

Upon the court finding Fattah guilty, the District Court Judge imposed a sentence of 16 and a half years imprisonment, comprising of a minimum period of full-time gaol of 11-years (referred to as the non-parole period).

While Fattah has indicated he will be appealing, no appeal has as of yet been lodged.

Sexual Assault Penalties Guide in NSW

Sexual assault is also commonly known as rape.

It is when a person has sexual intercourse with another person without the consent and knowing that there is no consent to the sexual intercourse.

Section 61I Crimes Act 1900 (NSW) imposes a maximum penalty of 14-years imprisonment to anyone who commits this crime in NSW.

If a person commits sexual assault against another person in ‘circumstances of aggravation’, the maximum penalty rises to up to 20-years imprisonment under section 61J Crimes Act 1900 (NSW).

This charge is so serious, that the case will commence in the Local Court but will ultimately be finalised by way of a sentence or trial in a higher court called the District Court. For this reason, this charge is often referred to as ‘strictly indictable’.

To reflect how serious the law treats this kind of crime, sexual assault carries a 7-year standard non-parole period. This ultimately means, where the objective seriousness fits within the middle of the range of seriousness for such offences, the law sets a minimum period of 7-years behind bars (non-parole period) before the convicted offender is eligible for release into society on parole.

However, the standard non-parole period (which also applies to other certain serious offences) is not a requirement that must be imposed on a convicted offender who falls within the mid-range of objective seriousness. It’s meant to be used only to guide the court in coming to a fair and just sentence for the particular offence.

The standard no-parole period for aggravated sexual assault is 10-years.

‘Circumstances of aggravation’ here includes any one or more of the following circumstances of the sexual assault:

  1. The accused person inflicted actual bodily harm on the alleged victim or any other person nearby or present there, either at the time, immediately before or after the sexual assault;
  2. The accused person threatens to cause the alleged victim or any person nearby or present with actual bodily harm by means of an offensive weapon or instrument;
  3. The accused person threatens to cause the alleged victim or any person nearby or present with grievous bodily harm or wounding;
  4. The accused person is in the company of someone else or other people;
  5. The alleged victim is under-age (under 16-years);
  6. The alleged victim is under the accused person’s authority, this can include doctor & patient, or teacher & student;
  7. The alleged victim has a cognitive impairment;
  8. The accused person breaks and enters into the home with an intention to commit sexual assault or any other offence carrying a maximum penalty of at least 5-years prison;
  9. The accused person prevents the alleged victim from freely leaving for a period either before or after the sexual assault.

What is sexual intercourse? This includes genitalia sexual penetration, introducing the penis into another person’s mouth, oral stimulation of another person’s genital, and includes penetrating someone’s lips, sucking or licking someone’s genitals’.

When is an accused considered to have known that the alleged victim did not consent? In some cases, the court will be allowed to make inferences based on the circumstances and conduct of the accused person (if those facts are proven in court beyond reasonable doubt).

In other situations, the accused person is considered to have known that there was no consent in any one or more of the following situations:

  1. The alleged victim was so intoxicated that he/she was incapable of consenting;
  2. The alleged victim did not have the capacity to consent as a result of his/her age or mental incapacity;
  3. The alleged victim was not awake;
  4. The alleged victim was threatened, put into fear or forced;
  5. The alleged victim was detained illegally;
  6. The alleged victim was mistaken as to the accused person’s identity;
  7. The alleged victim had the sexual intercourse as a result of an abuse of the position of trust or authority by the accused person.

The legal age to have sexual intercourse with a person is 16 or above.

Some of the defences to sexual assault include, medical purpose where it took place for a genuine medical reason by consent, or where the accused person had reasonable grounds for believing that the alleged victim consented (provided there were reasonable grounds to have held that believe in the circumstances).

Other common defences include, where there was no sexual intercourse. This includes a situation where the alleged victim makes a false allegation.

As specialists in sexual offences, our criminal lawyers located in Sydney appear across all courts.

Call our friendly staff to make a free initial appointment if you wish to discuss this further. We are available 24/7 on (02) 8606 2218.

About Jimmy Singh

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

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