What are the Penalties for Rape in NSW?

Luke Merryfull and Shaun Bloomfield, both aged 24 attended a 21^st birthday party in 2016 in a small town called Balmoral, situated about 4-hour drive from Melbourne. They were arrested and charged for raping their friend at the same birthday party.

Following a jury trial, both men were found guilty for raping their female friend inside a caravan during the party in 2016.

The court found that the two men raped her in a caravan during the party after she had refused to take part in a threesome. Following her refusal to have a threesome, the court heard that she was then placed in between both of the men on the bed while raping her in turns.

The Judge said that they men were “opportunistic” viewing her as “merely an object to violate at your will”.

The caravan in which the sexual assault took place is situated near a main road, visible from a footpath from a school.

The Judge expressed the rape as “shameful… devastating impact on the victim is still resonating”. He said, that she was simply enjoying a right to drink at a birthday party in Balmoral.

The Sentence Outcome

The two men were handed a full-time custodial sentence by Judge Gerard Mullaly on Wednesday 10 April.

Bloomfield received a sentence of 5 years and 8 months. Out of this, he is required to remain behind bars for at least 3-years and 4 months before being eligible to be released on parole back into the community.

Merryfull on the other hand received a sentence of 4-years and 10 months. Out of this, he’s required to remain behind bars for at least 2-years and 10 months before being eligible to be released on parole back into the community.

The Community’s Support for the Offenders

Balmoral is a small town with a population of under 200 people. It is reported that this has caused a divide between the people of Balmoral.

Regardless of the fact that a jury have found the two guilty of rape, a population of the locals refuse to accept the version given by the victim.

“The whole matter has ripped apart the community of a beautiful, sleepy little hollow where generations of families have lived… I could not believe how many (of Bloomfield and Merryfull’s supporters) went to the sentence hearing. It was outrageous”.

While the two boys families have lived in Balmoral for generations, the court was mainly populated by Balmoral community members in support of the two boys- the same two offenders who have been convicted of sexual assault.

Impact on the Victim

It is reported that the victim’s family moved to the small town with no family connections. As a result, a community member has said, that the victim’s family has been outcasted or excluded by the convicted offenders community member supporters.

As a result, the victim has moved to another state, fears returning back and is not able to study, work or go out without having someone accompany her.

Her victim impact statement stated that she was a shadow of her former self. “The last three years of my life have been the worst I’ve had to go through..Two friends I trusted… this crime will always have an impact on my life.”

It is reported that she now attends to fortnightly therapy and has done so for the last 3 years in order to help her address her post-traumatic stress disorder and anxiety.

A Guide on Sexual Assault Laws in NSW

In NSW, sexual assault is considered a strictly indictable offence. As such, a case for a charge of sexual assault will always begin in the local court before eventually being transferred to the District Court to be dealt with by way of a trial or sentence, unless the charge is withdrawn earlier by the prosecution due to a lack of sufficient evidence.

The offence carries a maximum penalty of imprisonment of up to 14-years under section 61I Crimes Act 1900 (NSW).

In addition to this, because sexual assault is considered such a heinous crime, the law classifies it as a standard non-parole period offence. This means that a person guilty of this can face a standard period of 7-years Full time jail before being eligible for release on parole if the offending conduct is seen by the Judge as in the middle of the range objective seriousness.

The 7-year standard non-parole period is not to be imposed as a mandatory requirement by a Judge when sentencing a convicted rapist. It is only to be used as a reference point or guide to assist the Judge to come to an appropriate sentence in the circumstances of the case.

In order to be guilty of sexual assault in NSW, the prosecution will be required to first prove three of the following elements of the crime beyond reasonable doubt in court:

1. The alleged offender had sexual intercourse with the alleged victim; and
2. The alleged victim did not consent to the sexual intercourse; and
3. The alleged offender knew that the alleged victim didn’t consent to the sexual intercourse.

Click here for a detailed outline on what sexual intercourse is, and how the law determines consent.

What Happens if the Victim Doesn’t Resist the Rape?

Section 61HE(9) Crimes Act 1900 (NSW) makes it clear that actual physical resistance to the sexual assault is not to be regarded as consent. However, it may be if combined with other relevant evidence surrounding the alleged incident in certain circumstances.

Some of the defences to rape charges include:

• Where the alleged offender honestly on reasonable grounds thought that the alleged victim was in fact consenting at the time of the sexual intercourse.
• Where the evidence together can allow an inference to be drawn that the alleged victim did consent to the sexual intercourse.
• Duress or Necessity.
• Where there is insufficient evidence to establish beyond reasonable doubt that sexual intercourse in fact took place on the occasion alleged.

Sexual intercourse without consent, also considered rape, is an extremely serious charge and crime in NSW. It is strongly advised to urgently seek advice from lawyers who specialise in sexual assault cases.

We have specialist sexual assault lawyers in Sydney, and seven other locations in NSW. Our leading team also provide a free first consultation with availability 24/7 on (02) 8606 2218.

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