If you have been charged with sexual assault, police must prove that:
What is sexual intercourse?
Sexual intercourse includes:
What is consent?
A person consents to sexual intercourse if they freely and voluntarily agree to the sexual intercourse. A person may, by words or conduct, withdraw consent to a sexual activity at any time. The fact that a person does not offer physical or verbal resistance does not, only because of that fact, mean there is consent. A person who consents on an earlier occasion is not, only because of that fact, presumed to consent on a later occasion. Whether or not someone consented to sexual intercourse will depend on all the surrounding circumstances.
Who does not have the capacity to consent to sexual intercourse?
A person cannot consent to sexual intercourse if:
How could it be proved that I knew the other person was not consenting?
This will depend on all the surrounding circumstances, including whether you:
What does recklessness in sexual assault mean?
In this context, you are reckless if either:
Whether you should plead guilty or not guilty will depend on a number of factors, including whether you accept that you had sexual intercourse with the victim, whether the victim was consenting, and whether you reasonably believed the victim was consenting.
You may accept that you had non-consensual sexual intercourse with the victim, but your lawyer may be able to persuade the prosecution to accept a plea of guilty to a less serious charge such as indecent assault.
Alternatively, you may accept that you had non-consensual sexual intercourse with the victim, but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the police facts.
Q. If I plead guilty or am found guilty, will a conviction be recorded?
A. It is very likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
Q. Will I go to jail for sexual assault?
A. It is likely that you will go to jail. The maximum penalty for sexual assault is 14 years imprisonment, however the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to reduce the length of the jail sentence.
Q. What will the court take into account when sentencing?
A. The court will take into account the nature and extent of the sexual assault, as well as the surrounding circumstances. For example, forced penile-vaginal penetration may be seen as more serious than a single act of digital penetration. The court will also take into account many other factors including your personal circumstances and criminal history.
Q. What is a standard non-parole period?
A. A non-parole period is the period of time someone spends in jail before they will be released to parole (or considered for parole).
A standard non-parole period is a ‘legislative guidepost’ which represents the non-parole period which should be imposed for an offence which is in the middle of the range of seriousness.
The more serious an offence is, the more likely it is that the standard non-parole period will be imposed.
If you have been charged with aggravated sexual assault, police must prove that:
What is sexual intercourse?
Sexual intercourse is the act of penetrating a vagina or anus using a body part or an object under your control and/or inserting your penis into the mouth of another person.
What is consent?
The alleged victim must not have consented to the sexual intercourse. Lack of consent means that the other person did not agree to have sexual intercourse with you. This does not mean that the alleged victim agreed out loud, it can be implied from the circumstances surrounding the intercourse. Consent to sexual intercourse must be free and voluntary (i.e. that the other person was not threatened or forced to consent).
Who cannot consent to sexual intercourse?
A person cannot consent if, at the time of the sexual intercourse:
What are circumstances of aggravation?
The sexual intercourse must have happened in circumstances of aggravation. They include any of the following:
* Actual bodily harm includes things like bruises, scratches, or marks. They not need to be permanent, but it must be more than transient.
**An offensive weapon is any object which is inherently dangerous (e.g. a knife or metal pole) or, in the circumstances, is used to cause or threaten to cause an offence. This can include ordinary objects that are not usually seen as dangerous or offensive, but is used for the purpose of causing an offence. Whether or not you had used an ordinary object in an offensive manner will depend on the surrounding circumstances of your matter.
How could it be proven that I knew the other person was not consenting?
This will depend on all the surrounding circumstances, including whether you:
What does ‘recklessness’ mean in aggravated sexual assault?
Being reckless is either:
This will always depend on the circumstances surrounding the sexual intercourse. For example, the court will consider whether you took any steps to determine whether the alleged victim was consenting to the sexual intercourse.
What is a standard non-parole period?
A non-parole period is the period of time someone spends in jail before they will be released to parole (or considered for parole).
A standard non-parole period is a ‘legislative guidepost’ which represents the non-parole period which should be imposed for an offence which is in the middle of the range of seriousness.
The more serious an offence is, the more likely it is that the standard non-parole period will be imposed.
This will depend on a number of factors, including whether you accept that you had sexual intercourse with the victim and whether you had sexual intercourse in circumstances of aggravation.
You may accept that you had sexual intercourse in circumstances of aggravation, but your lawyer may be able to persuade the prosecution to accept a plea of guilty to a less serious charge such as sexual assault or indecent assault.
Alternatively, you may accept that you had sexual intercourse, but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the police facts.
Q. If I plead guilty or am found guilty, will a conviction be recorded?
A. It is very likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
Q. Will I go to jail for aggravated sexual assault?
A. It is likely that you will go to jail. The maximum penalty for aggravated sexual assault is 20 years imprisonment, however the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to reduce the length of the jail sentence.
Q. What will the court take into account when sentencing?
A. The court will take into account the nature and extent of the assault and the aggravating circumstances, as well as other surrounding circumstances. The court will also take into account many other factors including your personal circumstances and criminal history.
Q. Does failing to resist me during sexual intercourse mean that the other person is consenting?
A. No. There must be some communication of consent between you and the other person. This can be through express words or implied from conduct. The court may also consider any steps that you may have taken to determine whether the other person was consenting to the sexual intercourse.
If you have been charged with aggravated sexual assault in company, police must prove that:
What is sexual intercourse?
Sexual intercourse is the act of penetrating a vagina or anus using a body part or an object under your control and/or inserting your penis into the mouth of another person.
What is consent?
The alleged victim must not have consented to the sexual intercourse. Lack of consent means that the other person did not agree to have sexual intercourse with you. This does not mean that the alleged victim agreed out loud, it can be implied from the circumstances surrounding the intercourse. Consent to sexual intercourse must be free and voluntary (i.e. that the other person was not threatened or forced to consent).
Who cannot consent to sexual intercourse?
A person cannot consent if, at the time of the sexual intercourse:
What are circumstances of aggravation?
The sexual intercourse must have happened in circumstances of aggravation. They include any of the following:
* Actual bodily harm includes things like bruises, scratches, or marks. They not need to be permanent, but it must be more than transient.
**An offensive weapon is any object which is inherently dangerous (e.g. a knife or metal pole) or, in the circumstances, is used to cause or threaten to cause an offence. This can include ordinary objects that are not usually seen as dangerous or offensive, but is used for the purpose of causing an offence. Whether or not you had used an ordinary object in an offensive manner will depend on the surrounding circumstances of your matter.
What is being in company?
Being in company is more than the presence of a person/s next to or near you during the sexual intercourse. You and the other person/s must have agreed to achieve the common purpose of having sexual intercourse with the accused victim.
How could it be proved that I knew the other person was not consenting?
This will depend on all the surrounding circumstances, including whether you:
What does ‘recklessness’ mean in sexual assault?
Being reckless is either:
This will always depend on the circumstances surrounding the sexual intercourse. For example, the court will consider whether you took any steps to determine whether the alleged victim was consenting to the sexual intercourse.
What is a standard non-parole period?
A non-parole period is the period of time someone spends in jail before they will be released to parole (or considered for parole).
A standard non-parole period is a ‘legislative guidepost’ which represents the non-parole period which should be imposed for an offence which is in the middle of the range of seriousness.
The more serious an offence is, the more likely it is that the standard non-parole period will be imposed.
This will depend on a number of factors, including whether you accept that you had sexual intercourse with the victim, whether it was in circumstances of aggravation and whether you were in the company of a person/s at the time of engaging in the act.
You may accept that you had sexual intercourse in company and in circumstances of aggravation, but your lawyer may be able to persuade the prosecution to accept a plea of guilty to a less serious charge such as aggravated sexual assault, sexual assault or indecent assault.
Alternatively, you may accept the charge, but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the police facts.
Q. If I plead guilty or am found guilty, will a conviction be recorded?
A. It is very likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
Q. Will I go to jail for aggravated sexual assault in company?
A. It is likely that you will go to jail. The maximum penalty for aggravated sexual assault in company is life imprisonment, however the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to reduce the length of the jail sentence.
Q. What will the court take into account when sentencing?
A. The court will take into account the nature and extent of the assault and the aggravating circumstances, as well as other surrounding circumstances. The court will also take into account many other factors including your personal circumstances and criminal history.
Q. Does failing to resist me during sexual intercourse mean that the other person is consenting?
A. No. There must be some communication of consent between you and the other person. This can be through express words or implied from conduct. The court may also consider any steps that you may have taken to determine whether the other person was consenting to the sexual intercourse.
Q. When is someone unable to consent to sexual intercourse?
A. A person cannot consent to if, at the time of the sexual intercourse:
Q. What are circumstances of aggravation?
A. They include any of the following:
Q. Will I be in company if people simply stood around us during the sexual intercourse?
A. No. Being in company is more than the presence of a person/s next to or near you during the sexual intercourse. You and the other person/s must have agreed to achieve the common purpose of having sexual intercourse with the accused victim.
If you have been charged with assault with intent to have sexual intercourse, police must prove that:
What does actual bodily harm mean?
There must be some injury to the complainant. Actual bodily harm includes things like bruises, scratches, or marks. The injury does not need to be permanent, but it must be more than transient.
What is an offensive weapon?
An offensive weapon is any object which is inherently dangerous (e.g. a knife or metal pole) or, in the circumstances, is used to cause or threaten to cause an offence. This can include ordinary objects that are not usually seen as dangerous or offensive, but is used for the purpose of causing an offence. Whether or not you had used an ordinary object in an offensive manner will depend on the surrounding circumstances of your matter.
What is an intent to have sexual intercourse?
This means that you had either caused actual bodily harm or had threatened to cause actual bodily harm using an offensive weapon for the purposes of having sexual intercourse with the alleged victim. Sexual intercourse is the act of penetrating a vagina or anus using a body part or an object under your control and/or inserting your penis into the mouth of another person. This will depend on the circumstances surrounding your conduct.
This will depend on a number of factors, including whether you accept that you assaulted the victim by either causing actual bodily harm or using an offensive weapon or instrument to threaten actual bodily harm.
You may accept that you assaulted the victim, but your lawyer may be able to persuade the prosecution to accept a plea of guilty to a less serious charge such as assault occasioning actual bodily harm or common assault.
Alternatively, you may accept that you assaulted the victim with an intent to have sexual intercourse, but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the police facts.
Q. If I plead guilty or am found guilty, will a conviction be recorded?
A. It is very likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
Q. Will I go to jail for assault with intent to have sexual intercourse?
A. It is likely that you will go to jail. The maximum penalty for assault with intent to have sexual intercourse is 20 years imprisonment, however the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to reduce the length of the jail sentence.
Q. What will the court take into account when sentencing?
A. The court will take into account the nature and extent of the assault and the aggravating circumstances, as well as other surrounding circumstances. The court will also take into account many other factors including your personal circumstances and criminal history.
If you have been charged with aggravated indecent assault, police must prove that:
What is an assault?
An assault is any contact with another person, without their consent, which does not amount to actual bodily harm. Actual bodily harm includes things like bruises, scratches, or marks.
What is an act of indecency?
These are acts which clearly have a sexual connotation attached to it. They include, but are not limited to, the touching of the breasts, genitals, outside of underpants and kissing with the suggestion of intercourse. This will all depend on the circumstances surrounding your conduct.
What does recklessness mean?
If police cannot prove that you indecently assaulted the complainant knowing that they were not consenting, it must be proved that you realised the complainant might be subjected to the indecent touching, but continued regardless.
What is a circumstance of aggravation?
You must have indecently assaulted the complainant in circumstances of aggravation. They include any of the following circumstances:
What is a standard non-parole period?
A non-parole period is the period of time someone spends in jail before they will be released to parole (or considered for parole).
A standard non-parole period is a ‘legislative guidepost’ which represents the non-parole period which should be imposed for an offence which is in the middle of the range of seriousness.
The more serious an offence is, the more likely it is that the standard non-parole period will be imposed.
This will depend on a number of factors, including whether you accept that you indecently assaulted the complainant in circumstances of aggravation.
You may accept that you indecently assaulted the complainant, but your lawyer may be able to persuade the prosecution to accept a plea of guilty to a less serious charge such as indecent assault or common assault.
You may accept the charge but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the police facts.
Q. If I plead guilty or am found guilty, will a conviction be recorded?
A. It is possible that the court may record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors. It is important that a lawyer properly prepares and presents your case to minimise the risk of a conviction being recorded.
Q. Will I go to jail for aggravated indecent assault?
A. It is possible that you will go to jail. The maximum penalty for aggravated indecent assault is 7 years imprisonment, however if the matter is dealt with in the Local Court the maximum penalty is 2 years imprisonment. If the circumstance of aggravation is that the complainant is below the age of 16 years, the maximum penalty is 10 years imprisonment. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
If you have been charged with indecent assault, police must prove that:
What is an assault?
An assault is any contact with another person, without their consent, which does not amount to actual bodily harm. Actual bodily harm includes things like bruises, scratches, or marks.
What is an act of indecency?
These are acts which clearly have a sexual connotation attached to it. They include, but are not limited to, the touching of the breasts, genitals, outside of underpants and kissing with the suggestion of intercourse. This will all depend on the circumstances surrounding your conduct.
What does recklessness mean?
If police cannot prove that you knew that the complainant was not consenting, it must be proved that you realised the complainant might not be consenting, but continued regardless.
This will depend on a number of factors, including whether you accept that you assaulted the complainant and committed an act of indecency.
You may accept that you assaulted the complainant and committed the act of indecency but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the police facts.
Q. If I plead guilty or am found guilty, will a conviction be recorded?
A. It is possible that the court may record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors. It is important that a lawyer properly prepares and presents your case to minimise the risk of a conviction being recorded.
Q. Will I go to jail for indecent assault?
A. Though imprisonment is not a likely outcome for an offence of indecent assault, and there are many sentencing alternatives, it is possible that you will go to jail. The maximum penalty for indecent assault is 5 years imprisonment, however if the matter is dealt with in the Local Court the maximum penalty is 2 years imprisonment and/or 50 penalty units (i.e. a fine of up to $5,500). The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
Q. Can bumping into someone in the street amount to indecent assault?
A. Bumping into someone in the street cannot amount to indecent assault as long as you did not intend to bump into the person.
Q. Is physical contact amounting to an indecent act while playing sport an indecent assault?
A. Not normally. Physical contact during sport is not an assault if the touching is an expected element of the sport and the players are complying with the rules of the sport.
If you have been charged with sexual intercourse with child under 10, police must prove that:
What is sexual intercourse?
Sexual intercourse is the act of penetrating a vagina or anus using a body part or an object under your control and/or inserting your penis into the mouth of another person.
What is a standard non-parole period?
A non-parole period is the period of time someone spends in jail before they will be released to parole (or considered for parole).
A standard non-parole period is a ‘legislative guidepost’ which represents the non-parole period which should be imposed for an offence which is in the middle of the range of seriousness.
The more serious an offence is, the more likely it is that the standard non-parole period will be imposed.
This will depend on a number of factors, including whether you accept that you had sexual intercourse with the child under 10.
You may accept that you had sexual intercourse with the child under 10, but your lawyer may be able to persuade the prosecution to accept a plea of guilty to a less serious charge such as attempting, or assault with intent, to have sexual intercourse with the child under 10.
Alternatively, you may accept the charge but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the police facts.
Q. If I plead guilty or am found guilty, will a conviction be recorded?
A. It is very likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
Q. Will I go to jail for sexual intercourse with a child under 10?
A. It is likely that you will go to jail. The maximum penalty for sexual intercourse with a child under 10 is life imprisonment, however the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to reduce the length of the jail sentence.
Q. Does it matter whether the child consented?
A. No, consent will not be considered. Children are presumed not to have the capacity to consent to conduct under this offence.
If you have been charged with attempting, or assaulting with intent, to have sexual intercourse with a child under 10, police must prove that:
What is sexual intercourse?
Sexual intercourse is the act of penetrating a vagina or anus using a body part or an object under your control and/or inserting your penis into the mouth of another person.
What is an ‘attempt’ to have sexual intercourse?
An ‘attempt’ to have sexual intercourse means that you had fully intended to have sexual intercourse with the alleged victim and, with that intention, actively did something in the process leading up to the act of sexual intercourse. Your actions must be more than just preparing to have sexual intercourse with the alleged victim but must have done something in the process leading up to the physical act which will always depend on the specific circumstances surrounding your matter.
What is an assault?
An assault is any contact with another person, without their consent, which does not amount to actual bodily harm. Actual bodily harm includes things like bruises, scratches, or marks. An assault can also be the use of words that threaten an immediate force or contact to another person. This does not involve threats of future conduct.
What is a standard non-parole period?
A non-parole period is the period of time someone spends in jail before they will be released to parole (or considered for parole).
A standard non-parole period is a ‘legislative guidepost’ which represents the non-parole period which should be imposed for an offence which is in the middle of the range of seriousness.
The more serious an offence is, the more likely it is that the standard non-parole period will be imposed.
This will depend on a number of factors, including whether you accept that you attempted, or assaulted with intent, to have sexual intercourse with the complainant.
You may accept that you attempted to have sexual intercourse or assaulted with intent to have sexual intercourse, but your lawyer may be able to persuade the prosecution to accept a plea of guilty to a less serious charge such as indecent assault.
Alternatively, you may accept the charge but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the police facts.
Q. If I plead guilty or am found guilty, will a conviction be recorded?
A. It is very likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
Q. Will I go to jail for attempting, or assault with attempt, to have sexual intercourse with a child under 10?
A. It is likely that you will go to jail. The maximum penalty for attempting, or assault with intent, to have intercourse with a child under 10 is 25 years imprisonment, however the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to reduce the length of the jail sentence.
Q. Does it matter whether the child consented?
A. No, consent will not be considered. Children are presumed not to have the capacity to consent to conduct under this offence.
If you have been charged with attempting, or assaulting with intent, to have sexual intercourse with a child between 10 and 14, police must prove that:
What is sexual intercourse?
Sexual intercourse is the act of penetrating a vagina or anus using a body part or an object under your control and/or inserting your penis into the mouth of another person.
What is an ‘attempt’ to have sexual intercourse?
An ‘attempt’ to have sexual intercourse means that you had fully intended to have sexual intercourse with the alleged victim and, with that intention, actively did something in the process leading up to the act of sexual intercourse. Your actions must be more than just preparing to have sexual intercourse with the alleged victim but must have done something in the process leading up to the physical act which will always depend on the specific circumstances surrounding your matter.
What is an assault?
An assault is any contact with another person, without their consent, which does not amount to actual bodily harm. Actual bodily harm includes things like bruises, scratches, or marks. An assault can also be the use of words that threaten an immediate force or contact to another person. This does not involve threats of future conduct.
This will depend on a number of factors, including whether you accept that you attempted, or assaulted with intent, to have sexual intercourse with the complainant.
You may accept that you attempted to have sexual intercourse or assaulted with intent to have sexual intercourse, but your lawyer may be able to persuade the prosecution to accept a plea of guilty to a less serious charge such as indecent assault.
Alternatively, you may accept the charge but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the police facts.
Q. If I plead guilty or am found guilty, will a conviction be recorded?
A. It is very likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
Q. Will I go to jail for attempting, or assault with intent, to have sexual intercourse with a child between 10 and 14?
A. It is likely that you will go to jail. The maximum penalty for attempting, or assault with intent, to have intercourse with a child between 10 and 14 is 16 years imprisonment, however the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to reduce the length of the jail sentence.
Q. Does it matter whether the child consented?
A. No, consent will not be considered. Children are presumed not to have the capacity to consent to conduct under this offence.
If you have been charged with sexual intercourse with child between 14 and 16, police must prove that:
If you have been charged with aggravated sexual intercourse with child between 14 and 16, police must prove that:
What is sexual intercourse?
Sexual intercourse is the act of penetrating a vagina or anus using a body part or an object under your control and/or inserting your penis into the mouth of another person.
What are circumstances of aggravation?
To be convicted of aggravated sexual intercourse with a child between 14 and 16, the sexual intercourse must have happened in circumstances of aggravation. They include any of the following:
*Actual bodily harm includes things like bruises, scratches, or marks. They not need to be permanent, but it must be more than transient.
**An offensive weapon is any object which is inherently dangerous (e.g. a knife or metal pole) or, in the circumstances, is used to cause or threaten to cause an offence. This can include ordinary objects that are not usually seen as dangerous or offensive, but is used for the purpose of causing an offence.
What is a standard non-parole period?
A non-parole period is the period of time someone spends in jail before they will be released to parole (or considered for parole).
A standard non-parole period is a ‘legislative guidepost’ which represents the non-parole period which should be imposed for an offence which is in the middle of the range of seriousness.
The more serious an offence is, the more likely it is that the standard non-parole period will be imposed.
This will depend on a number of factors, including whether you accept that you had sexual intercourse with the child between 14 and 16.
You may accept that you had sexual intercourse with the child between 14 and 16, but your lawyer may be able to persuade the prosecution to accept a plea of guilty to a less serious charge such as attempting, or assault with intent, to have sexual intercourse with the child between 14 and 16.
Alternatively, you may accept the charge but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the police facts.
Q. If I plead guilty or am found guilty, will a conviction be recorded?
A. It is very likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
Will I go to jail for sexual intercourse with a child between 14 and 16?
A. It is likely that you will go to jail. The maximum penalty for sexual intercourse with a child between 14 and 16 is 10 years imprisonment, however the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
If you have been charged with attempting, or assaulting with intent, to have sexual intercourse with a child between 14 and 16, police must prove that:
What is sexual intercourse?
Sexual intercourse is the act of penetrating a vagina or anus using a body part or an object under your control and/or inserting your penis into the mouth of another person.
What is an ‘attempt’ to have sexual intercourse?
An ‘attempt’ to have sexual intercourse means that you had fully intended to have sexual intercourse with the alleged victim and, with that intention, actively did something in the process leading up to the act of sexual intercourse. Your actions must be more than just preparing to have sexual intercourse with the alleged victim but must have done something in the process leading up to the physical act which will always depend on the specific circumstances surrounding your matter.
What is an assault?
An assault is any contact with another person, without their consent, which does not amount to actual bodily harm. Actual bodily harm includes things like bruises, scratches, or marks. An assault can also be the use of words that threaten an immediate force or contact to another person. This does not involve threats of future conduct.
This will depend on a number of factors, including whether you accept that you attempted, or assaulted with intent, to have sexual intercourse with the complainant.
You may accept that you attempted to have sexual intercourse or assaulted with intent to have sexual intercourse, but your lawyer may be able to persuade the prosecution to accept a plea of guilty to a less serious charge such as indecent assault.
Alternatively, you may accept the charge but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the police facts.
Q. If I plead guilty or am found guilty, will a conviction be recorded?
A. It is very likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
Q. Will I go to jail for attempting, or assault with intent, to have sexual intercourse with a child between 14 and 16?
A. It is likely that you will go to jail. The maximum penalty for attempting, or assault with intent, to have intercourse with a child between 14 and 16 is 10 years imprisonment, however the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to reduce the length of the jail sentence.
Q. Does it matter whether the child consented?
A. No, consent will not be considered. Children are presumed not to have the capacity to consent to conduct under this offence.
If you have been charged with the persistent sexual abuse of a child, police must prove that you committed a sexual offence against a child two or more times on different days over any period of time.
What is a sexual offence?
A sexual offence can be any of the following:
Each of the two or more separate occasions of sexual abuse does not have to be the same sexual offence. That is, you could have been found to have committed any combination of the above sexual offences on the three or more separate occasions, on separate days and over any period of time. Also, if you are charged with the persistent sexual abuse of a child, you cannot be charged with any of the above sexual offences at the same time. However, the sexual offences may be used as ‘back-up’ offences in the case where you are not convicted of the persistent sexual abuse of a child.
Who is a child?
For this offence, a child would be a person under the age of 18 years, unless otherwise specified by the specific sexual offence (e.g. for the offence of having sexual intercourse with a child below the age of 10, a child would be a person under the age of 10).
This will depend on a number of factors, including whether you accept that you committed two or more sexual offences against a child.
You may accept the conduct, but your lawyer may be able to persuade the prosecution to accept a plea of guilty to a less serious charge.
Alternatively, you may accept the charge but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the police facts.
Q. If I plead guilty or am found guilty, will a conviction be recorded?
A. It is very likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
Q. Will I go to jail for persistent sexual abuse of a child?
A. It is likely that you will go to jail. The maximum penalty for persistent sexual abuse of a child is life imprisonment, however the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to reduce the length of the jail sentence.
Q. Does the persistent sexual abuse need to be of the same sexual offence?
A. No. It is not required that you must have committed the same sexual offence on two or more separate occasions. You could have committed any combination of sexual offences as long as the jury is satisfied with the same three offences.
Q. How would the Court deal with more than two separate occasions of child sexual abuse?
A. The jury must only be satisfied of the same two sexual offences which means that the rest will not be dealt with when you are being convicted of the persistent sexual abuse of a child offence. However, when you are being sentenced (i.e. when the court is determining your punishment), all of the separate occasions may be taken into account by the sentencing judge to decide the severity of your punishment.
Q. What if the acts were committed in different states?
A. At least one of the separate occasions where you are alleged to have committed a sexual offence must have been committed in NSW for you to be lawfully charged in the NSW criminal jurisdiction.
Q. Does it matter whether or not the child consented to the conduct?
A. No. Consent will not be taken into account if the alleged victim was below the age of 16 at the time of the alleged incident. Children are presumed not to have the capacity to consent to any of the sexual offences covered by this offence.
If you have been charged with procuring a child under 16 for unlawful sexual activity, police must prove that:
Who is an adult and child?
An adult is a person that is of or older than 18 years of age whereas a child is a person that is under the age of 16 years.
What is procuring?
Procuring a child for an unlawful sexual activity is any act done with the intention to tempt, lure or attract a child under 16 to engage in an unlawful sexual activity. This can include the use of any form of telecommunication (e.g. telephones, mobile apps etc.) or by providing the child with an image or video with an intention to procure.
What is an unlawful sexual activity?
An unlawful sexual activity can be any of the following:
The Court is not required to point to any specific sexual offence or to prove any of the elements of a sexual offence if you are charged with procuring a child under 16 for unlawful sexual activity. Also, please note that unlawful sexual activity is not limited to sexual intercourse. It also involves other conduct which may constitute attempts (e.g. Attempt, or assault with intent, to have sexual intercourse with a child), acts of indecency, indecent assaults and so on.
What is a standard non-parole period?
A non-parole period is the period of time someone spends in jail before they will be released to parole (or considered for parole).
A standard non-parole period is a ‘legislative guidepost’ which represents the non-parole period which should be imposed for an offence which is in the middle of the range of seriousness.
The more serious an offence is, the more likely it is that the standard non-parole period will be imposed.
This will depend on a number of factors, including whether you accept that you procured a child under 16 for unlawful sexual activity.
You may accept the alleged conduct, but your lawyer may be able to persuade the prosecution to accept a plea of guilty to a less serious charge.
Alternatively, you may accept the charge but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the police facts.
Q. If I plead guilty or am found guilty, will a conviction be recorded?
A. It is likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
Q. Will I go to jail for procuring a child under 16 for unlawful sexual activity?
A. It is likely that you will go to jail. The maximum penalty for procuring a child under 16 for unlawful sexual activity is 15 years imprisonment. If the child is 14 and over, the maximum penalty is 12 years imprisonment. However, if dealt with in the Local Court, the maximum penalty is 2 years imprisonment. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to reduce the length of the jail sentence.
Q. Can I still be charged if the other person was pretending to be a child under 16 years but, in reality, was not?
A. Yes. You still may be charged with procuring a child under 16 for unlawful sexual activity even if they are, in fact, not a child. In this case, it must be proven that you believed that the other person was a child under 16 years of age (e.g. asking for their age over text and continuing to procure whilst genuinely believing that they are a child under 16 years of age).
Q. Does it matter whether the child consented to the procuring?
A. No. Consent will not be taken into account if the alleged victim was below the age of 16 at the time of the alleged incident. Children are presumed not to have the capacity to consent to any conduct that falls under the sexual offences.
If you have been charged with grooming a child under 16 for unlawful sexual activity, police must prove that:
Who is an adult and child?
An adult is a person that is of or older than 18 years of age whereas a child is a person that is under the age of 16 years.
What is grooming?
Grooming a child is any act that makes it easier for you to procure (i.e. attract, lure etc.) them to engage in an unlawful sexual activity. This can include providing the child with indecent material or an intoxicating substance with the intention of procuring them for an unlawful sexual activity.
What is an unlawful sexual activity?
An unlawful sexual activity can be any of the following:
The Court is not required to point to any specific sexual offence or to prove any of the elements of a sexual offence if you are charged with grooming a child under 16 for unlawful sexual activity. Also, please note that an unlawful sexual activity is not limited to sexual intercourse. It also involves other conduct which may constitute attempts (e.g. Attempt, or assault with intent, to have sexual intercourse with a child), acts of indecency, indecent assaults and so on.
What is a standard non-parole period?
A non-parole period is the period of time someone spends in jail before they will be released to parole (or considered for parole).
A standard non-parole period is a ‘legislative guidepost’ which represents the non-parole period which should be imposed for an offence which is in the middle of the range of seriousness.
The more serious an offence is, the more likely it is that the standard non-parole period will be imposed.
This will depend on a number of factors, including whether you accept that you groomed a child under 16 for unlawful sexual activity.
You may accept the alleged conduct, but your lawyer may be able to persuade the prosecution to accept a plea of guilty to a less serious charge.
Alternatively, you may accept the charge but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the police facts.
Q. If I plead guilty or am found guilty, will a conviction be recorded?
A. It is likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
Q. Will I go to jail for grooming a child under 16 for unlawful sexual activity?
A. It is likely that you will go to jail. The maximum penalty for grooming a child under 16 for unlawful sexual activity is 12 years imprisonment if the child is under the age of 14 years, and 10 years imprisonment if the child is of or over the age of 14. However, if dealt with in the Local Court, the maximum penalty is 2 years imprisonment.
It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to reduce the length of the jail sentence.
Q. Can I still be charged if the other person was pretending to be a child under 16 years but, in reality, was not?
A. Yes. You still may be charged with grooming a child under 16 for unlawful sexual activity even if they are, in fact, not a child. In this case, it must be proven that you believed that the other person was a child under 16 years of age (e.g. asking for their age over text and continuing to groom whilst genuinely believing that they are a child under 16 years of age).
Q. Does it matter whether the child consented to the grooming?
A. No. Consent will not be taken into account if the alleged victim was below the age of 16 at the time of the alleged incident. Children are presumed not to have the capacity to consent to any conduct that falls under the sexual offences.
Hugo Law Group is a law firm that is focused on protecting and defending your rights. Drawing on decades of experience, our team of criminal lawyers will guide you through the legal process, providing comprehensive, honest and strategic advice – qualities that give us our renowned reputation.
Whether you want to plead not guilty, you are looking to secure the best possible sentence, or a loved one wants to apply for bail, it is essential to have an experienced team of criminal defence lawyers in your corner.
Seeking comprehensive and practical advice at an early stage will best ensure your rights and interests are protected. Our lawyers will properly prepare and present your case to assist you in getting the best possible outcome.
At Hugo Law Group, we will clearly explain what your rights and obligations are so that you can make informed decisions about how to deal with the police and the court process.
Even if you have not yet been charged with a criminal offence, you should seek advice from a lawyer at an early stage to ensure that your rights and interests are protected.
Hugo Law Group is the market leader in criminal defence law, providing exceptional representation to people facing serious criminal charges.
As leaders in criminal defence, we know that every story has two sides. We defend yours.
Get in contact with us today or feel free to call us at 02 9696 1361 (Sydney), 02 5104 9640 (Canberra), 08 6255 6909 (Perth), or 07 5552 1902 (Northern NSW) and find out how we can help you.