The Penalties for Sexual Assault without Consent in NSW

 

It is reported that in November 2018, an anaesthetist, Dr. Adam examined the rectum of his 37-year-old patient without the patients consent.

Following a complaint made about this, Dr. Hill in March was suspended by the Medical Council of NSW.

Dr. Hill has agreed that it was wrong to have conducted the rectum examination in the absence of consent. However, his barrister told the NCAT tribunal that it was a “one-off transgression”.

Representative for the Medical Council of NSW asked Dr. Hill:

“Do you accept that at the time you had no clinical reason to inspect the tumour?”

Dr. Hill said: “I can see that now, absolutely, yet”.

 

Dr. Hill’s Defence

The rectum examination was conducted by Dr. Hill following the discovery of a large tumour during a colonoscopy. The discovery was made by a surgeon who cannot currently be legally named.

Dr. Hill blamed his actions on the surgeon.

Dr. Hill claims that he didn’t want to conduct the examination on the patient, however, the surgeon insisted that it be done.

Dr. Hill gave evidence that he was “reluctant” to do these examinations as he doesn’t “enjoy doing examinations in that vicinity”.

Dr. Hill claimed that he initially refused to examine that area upon the surgeon’s request. However, conducted the examination after the surgeon had insisted.

In fact, a nurse who was present at the examination said in evidence, that while Dr. Hill was conducting an examination of the patient, the surgeon pointed his mobile phone towards Dr. Hill and said, “We finally have evidence of you doing work”.

The nurse, in her evidence said, that Dr. Hill responded with “a snigger, a giggle” noise, but said “that’s not funny. Put that away”.

The surgeon used his mobile phone to take a photo of Dr. Hill for the purposes of forwarding the image to other doctors.

When inviting Dr. Hill to feel the tumour, the surgeon is reported saying that it was a “once in a lifetime opportunity” to feel it.

While conceding that he wasn’t providing a second opinion when conducting the examination, Dr. Hill said that his motivation for doing it was out of clinical curiosity. He also conceded that it was outside his scope of work as an anaesthetist.

While Dr. Hill has appealed the suspension, his hearing continues. However, he is allowed to continue working “pending the hearing and determination of the appeal”.

The Penalties for Sexual Assault without Consent in NSW

It is a serious crime in NSW to commit the act of sexual intercourse without consent under section 61I Crimes Act 1900 (NSW).

Anyone who commits this crime in NSW will face a maximum penalty of up to 14-years imprisonment.

This offence also carries a 7-years standard non-parole period which represents the minimum period of prison to be served before being eligible for release on parole.

The 7-years standard non-parole period is only engaged if the offence is considered in the category of the mid-range of objective seriousness.

What is considered mid-range of objective seriousness depends on the circumstances of the offending conduct. For example, The Judge will consider the extent of violence used, the period of time the offending occurred for, extent of pre-meditation, whether there were any injuries caused etc.

In the event a court finds that the offence does fall in the mid-range of objective seriousness for offences of this type, the sentencing Judge in court is not required to impose the standard non-parole period. It is to be used by the Judge only as a yardstick or guide to assist the court in reaching an appropriate sentence for the particular offender.

What Needs to be Proven in order to be Found Guilty of Sexual Assault in Court

A person who is accused of sexual assault in NSW can only be found guilty if the prosecution is able to prove each of the following elements of this crime beyond reasonable doubt in court:

  1. There was sexual intercourse between the accused and alleged victim; and
  2. The alleged victim didn’t consent to it; and
  3. The accused at the time knew that the alleged victim didn’t consent but continued.

What is sexual intercourse? Sexual intercourse includes the sexual connection from penetration of the genitalia of a female person or the anus of any person by any part of the body of another person, or any object manipulated by another person.

Sexual intercourse also includes the act of inserting a penis into the mouth of another person, or cunnilingus. (section 61HA Crimes Act 1900 (NSW)).

Failure by the prosecution to prove any one of the above elements will result in the acquittal of the accused.

The ability of a criminal defence lawyer to identify the weaknesses in the prosecution evidence can result in the charge being dismissed early through negotiations with the prosecution before the trial begins.

What are the Defences to a Charge of Sexual Assault Case?

If any of the following defences to this charge apply, either the prosecution will withdraw the charge early or the court will find the accused not guilty in court:

  • Where the penetration was carries out for a proper medical purpose (section 61HA Crimes Act 1900 (NSW)); or
  • The accused held an honest and reasonable belief that the alleged victim was consenting to the sexual intercourse at the time; or
  • There was no sexual intercourse; or
  • Mistaken identity: where the accused has been mistaken for the perpetrator.

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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