The Law and Penalties for Aggravated Sexual Assault in NSW

 

30-year-old former Parramatta Eels rugby leagues football player Jarryd Hayne has been charged with aggravated sexual assault in circumstances of allegedly raping and inflicting actual bodily harm on a 26-year old woman.

It is alleged that on 30 September Hayne had been communicating with the 26-year old woman via a social messenger app before travelling in a cab to visit her in the Hunter region on NRL Grand Final night.

Before getting a cab there, he was reportedly drinking in the Newcastle area.

After arriving at the woman’s home, it is alleged that he had requested the cab driver to wait for him for twenty-minutes.

Once at her home, it is alleged that he sexually assaulted her, “ripping off her clothes and biting her on her genitals, drawing blood” before getting back into the cab which drove him back to Sydney.

It’s understood by the Herald that Hayne was later observed to be drinking with another NRL player at the Merrylands Bowling Club at around 3am Monday morning.

The woman had allegedly suffered significant injuries from the alleged sexual assault- causing her to seek medical attention the next day.

The woman’s house where the alleged rape took place in North Newcastle was shared with the woman’s mother, who apparently was also present in the house at the time.

The Complaint Leading to the Arrest

The woman had reportedly first lodged a complaint with the NRL Integrity Unit earlier in 2018. The complaint was then referred to the sex crime squad when detectives commenced their investigation into the allegation.

This then led to Hayne voluntarily attended the Ryde Police Station where he was arrested and charged. He spent over 9 hours at the police station where police eventually decided to grant the rugby league star bail on strict conditions.

Hayne’s Current Strict Bail Conditions

He has been granted very strict conditional bail where he is required to report 3 times per week at the Ryde Police Station and surrender his passport- he is prohibited from applying for another passport.

He is also prohibited from:

  • Entering any international airport or the Newcastle area.
  • Contacting the alleged victim or any witness in the case.

As a further condition of his release, he is required to enter into a security agreement to forfeit $20,000 if he breaches his conditions.

This represents the 2nd sexual assault accusation against Hayne, who is still in the process of defending a civil claim in America concerning an alleged sexual assault of a woman in San Jose back in 2015.

Hayne is expected to appear in the trial for his civil lawsuit in America scheduled in January 2019- which may be difficult to do given his current strict bail conditions here.

Hayne’s next court date is listed on 10 December this year at the Burwood Local Court- where he is required to attend whilst on bail conditions.

As it’s a criminal matter, the Parramatta Eels club have refused to make any comments on the matter, said the spokesperson for the club.

Hayne’s Career

Hayne commenced his career with the Parramatta Eels in two thousand and six before leaving to pursue his dream of playing professional American NFL.

He played 1 season for the San Francisco 49ers- where he had played in 8 games.

It is reported that he struggled at times in coming to terms with the new game, making a number of fumbles.

The team then cut him in late October 2015, instead placing him on the practice squad before putting him back in for the 2nd last game of the season against Detroit.

After one season with the San Francisco 49ers, Hayne made a failed attempt to join Fiji’s Rugby Sevens team for the Rio Olympics.

Following this, he returned to the NRL to play for the Gold Coast Titans before returning back to the Parramatta Eels in the 2018 season.

Now, ahead of next year’s season, Hayne is currently out of contract.

The Law and Penalties for Aggravated Sexual Assault Charges in NSW

In NSW, Sexual intercourse is where:

  • There is genitalia sexual penetration. For example, the penetration of the anus or vagina by the part of a body; or
  • Introduction of the penis into another person’s mouth; or
  • Orally stimulating another person’s genital’s; or
  • Penetrating the lips; licking or sucking the genitals of another person.

In NSW, where sexual intercourse takes place between adults, the law requires consent by all parties involved.

However, in the following scenario’s, the law considers there to have been no consent (even if the alleged victim says he/she consented) to sexual intercourse:

  • Where there was intimidation, coercion, threats, terror or force made by the person accused; or
  • Where the sexual intercourse took place in circumstances the accused person abused a position of authority or trust; or
  • Where the identity of the accused person was mistaken by the alleged victim; or
  • The sexual intercourse occurred in circumstances where the alleged victim was unlawfully detained; or
  • The sexual intercourse took place while the alleged victim was sleeping or unconscious; or
  • The sexual intercourse took place when the alleged victim was under age, or suffering from a cognitive incapacity affecting the ability to give informed consent; or
  • The sexual intercourse occurred in circumstances where the alleged victim was ‘substantially intoxicated from alcohol or drugs’ at the time.

Anyone found guilty of aggravated sexual intercourse will face a penalty of up to 20-years imprisonment in NSW pursuant to section 61J of the Crimes Act 1900 (NSW).

The offence carries what the law calls a ‘standard non-parole period’ of 10-years imprisonment- which only applies as a guide or yardstick for Judges if the offending conduct is categorised by the Judge to be in the middle of the range of objective seriousness for this kind of offence.

The standard non-parole period of 10-years is the minimum period of full-time jail before a convicted offender is eligible for release back into the community on parole.

The court will assess whether an offender falls in the lower, middle or higher end of seriousness for this offence by looking at features of the case, such as level of violence used, number of aggravating features involved, period of time the offence took place for, extent of any injuries caused, degree of premeditation and planning involved.

In NSW, a person will be guilty of aggravated sexual intercourse if:

  • Sexual intercourse took place between the alleged victim and accused person; and
  • There was no consent given by the alleged victim; and
  • That absence of consent was known to the accused person at the time; and
  • This occurred in ‘circumstances of aggravation’.

We have already covered, in our previous blog, on how the court determines whether or not the accused person knew that there was no consent at the time of the sexual intercourse.

What Amounts to ‘Circumstances of Aggravation’ in an Aggravated Sexual Assault Charge in NSW?

‘circumstances of aggravation’ is defined in section 61J(2) of the Crimes Act 1900 (NSW), and includes circumstances in which:

  • The alleged victim’s liberty was deprived either prior to, during, or after the offence; or
  • The alleged victim suffers a serious physical or cognitive impairment disability; or
  • The alleged victim was under the authority of the accused person, or was under 16-years of age; or
  • The sexual assault occurred in the company of another; or
  • The sexual assault involved threats to inflict actual bodily harm with an offensive weapon or instrument; or
  • The sexual assault involved an intentional or reckless injury amounting to actual bodily harm (injury considered more than transient or trifling i.e. bruising or scratches).

See our recent blog for an outline as to the defences to aggravated sexual intercourse charge in NSW.

 

If you have any questions arising from this blog, please call our office where our team are available 24/7.

We appear in all courts, with sexual assault lawyers in Newcastle, Parramatta, Sydney City, Wollongong and 5 other office locations around NSW.

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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