At Chidiac & Associates, we provide experienced criminal defence representation to clients facing sexual offence allegations throughout Sydney and New South Wales. We understand the seriousness of these proceedings and approach every matter with discretion, careful preparation and rigorous analysis of the evidence.

What Are Sexual Offences?

Sexual offences are criminal offences involving unlawful sexual activity or sexual conduct without consent.

The Crimes Act 1900 (NSW) contains a range of offences concerning sexual activity between adults, including:

• sexual assault;
• aggravated sexual assault;
• aggravated sexual assault in company;
• sexual touching without consent; and
• other sexual acts without consent.

The precise offence depends upon the conduct alleged, the circumstances in which it occurred and the relevant provisions of the legislation.

Consent Under NSW Law

Consent is central to many sexual offences in NSW.

For relevant offences committed on or after 1 June 2022, NSW law provides that a person does not consent to sexual activity unless they freely and voluntarily agree to the sexual activity.

The legislation identifies circumstances in which a person does not consent, including where the person participates because of:

• force or fear of force;
• intimidation or coercion;
• abuse of authority or trust;
• being unlawfully detained;
• being substantially intoxicated;
• being unconscious or asleep; or
• other circumstances specified by the legislation.

The Prosecution must also establish the accused person's knowledge concerning the absence of consent in accordance with the applicable statutory provisions.

A person is taken to know that another person does not consent where the person:

• actually knows that the other person does not consent;
• is reckless as to whether the other person consents; or
• has no reasonable grounds for believing that the other person consents.

The circumstances surrounding the alleged sexual activity are therefore critical to the Prosecution case.

Sexual Assault

Sexual assault is an offence under section 61I of the Crimes Act 1900 (NSW).

The offence concerns sexual intercourse with another person without their consent where the accused knows that the other person does not consent.

The maximum penalty for sexual assault is 14 years' imprisonment.

A sexual assault allegation may arise in a wide range of circumstances. The Prosecution case may depend upon the evidence of the complainant, the accused and other witnesses, together with communications, forensic evidence, CCTV, medical evidence and other surrounding circumstances.

Aggravated Sexual Assault

Aggravated sexual assault is dealt with under section 61J of the Crimes Act 1900 (NSW).

The offence involves sexual intercourse without consent in circumstances of aggravation, together with the required knowledge concerning the absence of consent.

Circumstances of aggravation include situations involving:

• the intentional or reckless infliction of actual bodily harm;
• threats to inflict actual bodily harm using an offensive weapon or instrument;
• threats to inflict grievous bodily harm or wounding;
• the accused being in the company of another person or persons;
• the accused being in a position of authority over the complainant; and
• other circumstances specified by the legislation.

The maximum penalty for aggravated sexual assault is 20 years' imprisonment.

Aggravated Sexual Assault in Company

Aggravated sexual assault in company is an especially serious offence under section 61JA of the Crimes Act 1900 (NSW).

The offence applies where a person has sexual intercourse with another person without consent, is in the company of another person or persons and the circumstances include specified aggravating features.

Depending upon the circumstances, the offence may involve allegations that the accused:

• intentionally or recklessly inflicted actual bodily harm;
• threatened to inflict actual bodily harm using an offensive weapon or instrument; or
• deprived the complainant of their liberty.

The maximum penalty for aggravated sexual assault in company is life imprisonment.

Given the severity of the potential penalty, allegations of aggravated sexual assault in company require immediate and careful legal advice.

Sexual Touching Without Consent

NSW law also contains offences concerning sexual touching without consent.

Sexual touching does not necessarily involve sexual intercourse. An allegation may concern physical contact of a sexual nature which occurs without the complainant's consent.

The Prosecution must establish the relevant elements of the particular offence, including the nature of the alleged touching and the accused person's knowledge concerning the absence of consent.

The maximum penalty depends upon the particular statutory provision under which the person is charged.

Sexual Acts Without Consent

There are also offences concerning sexual acts without consent.

These offences recognise that unlawful sexual conduct can take a variety of forms and does not necessarily involve sexual intercourse.

As with other sexual offences, the precise elements that the Prosecution must establish depend upon the offence charged and the circumstances alleged.

What Are the Penalties for Sexual Offences?

Sexual offences can carry substantial penalties, particularly where there are aggravating circumstances.

Some of the principal adult sexual offences include:

These are maximum statutory penalties. They do not mean that a person convicted of an offence will necessarily receive the maximum sentence.

The sentence imposed in an individual matter depends upon the circumstances of the offence and the offender, including the seriousness of the conduct, the offender's criminal history, whether a guilty plea was entered, prospects of rehabilitation and other relevant sentencing considerations.

Defending a Sexual Offence Charge

Being charged with a sexual offence does not mean that you are guilty.

The Prosecution bears the burden of proving every element of the particular offence beyond reasonable doubt.

Depending upon the circumstances, issues that may arise in defending a sexual offence allegation include:

• whether the alleged sexual activity occurred;
• whether the complainant consented;
• whether the Prosecution can establish the accused's knowledge concerning consent;
• whether the accused was reckless as to whether the complainant consented;
• whether any belief in consent was reasonable in the circumstances;
• whether the alleged conduct occurred as described;
• the reliability and consistency of the complainant's evidence;
• inconsistencies between statements and other evidence;
• the reliability of identification evidence;
• whether communications support or contradict the allegation;
• whether forensic evidence is consistent with the Prosecution case; and
• whether the Prosecution has established every element of the offence beyond reasonable doubt.

A defence may therefore involve detailed consideration of the evidence as a whole rather than simply one person's account of the events.

Evidence in Sexual Offence Cases

Sexual offence Prosecutions can involve extensive and highly sensitive evidence.

Depending upon the circumstances, this may include:

• complainant and witness statements;
• police interviews;
• CCTV footage;
• mobile phone footage;
• text messages;
• social media communications;
• photographs;
• call records;
• forensic evidence;
• medical evidence;
• DNA evidence;
• location data; and
• evidence concerning the relationship between the accused and complainant.

At Chidiac & Associates, we carefully examine the available evidence and consider whether it supports the allegations made.

We also assess whether there are inconsistencies, gaps or other issues that may affect the reliability or admissibility of the Prosecution evidence.

Sexual Offence Investigations

A sexual offence matter may begin as a police investigation before any charge is laid.

A person may be contacted by police, asked to attend an interview or become aware that allegations have been made against them.

Being investigated does not mean that a person will necessarily be charged.

Where a person is the subject of a sexual offence investigation, obtaining legal advice before participating in a police interview can be important. The decision about whether and how to participate in an interview should be considered having regard to the specific circumstances of the investigation.

Early legal advice may also assist in identifying relevant evidence and ensuring that important issues are addressed before a charging decision is made.

Bail and Sexual Offences

Where a person is charged with a serious sexual offence, particularly an offence carrying a substantial term of imprisonment, bail can become an important issue.

The question of bail is separate from whether the accused person is guilty.

Depending upon the circumstances, the court may consider matters including:

• the seriousness of the allegation;
• the strength of the Prosecution case;
• the accused person's criminal history;
• the risk of failing to appear;
• the risk of committing a serious offence while on bail;
• the risk of interfering with witnesses or evidence; and
• the accused person's personal circumstances.

We provide representation in relation to bail applications and can advise clients about the conditions that may be imposed.

How We Can Help

Sexual offence proceedings require careful preparation, discretion and a thorough understanding of the evidence and applicable legislation.

At Chidiac & Associates, we provide:

• confidential advice about the allegations;
• representation during police investigations;
• advice concerning police interviews;
• advice regarding bail;
• detailed analysis of Prosecution evidence;
• review of electronic and forensic evidence;
• representation at court appearances;
• negotiations with prosecutors where appropriate;
• preparation for defended hearings and trials;
• sentencing advice and representation; and
• strategic advocacy focused on protecting your rights and interests.

Our approach is built on careful preparation, rigorous analysis and strong courtroom advocacy.