Aggravated Sexual Assault involves an allegation of non-consensual sexual intercourse together with one or more circumstances of aggravation specified by legislation. These allegations often involve complex factual issues, disputed accounts and substantial amounts of evidence.

At Chidiac & Associates, we provide experienced criminal defence representation to clients facing Aggravated Sexual Assault charges throughout Sydney and New South Wales. We approach every matter with discretion, careful preparation and rigorous analysis of the Prosecution evidence.

What is Aggravated Sexual Assault?

Aggravated Sexual Assault is an offence under section 61J of the Crimes Act 1900 (NSW).

Under section 61J, a person commits Aggravated Sexual Assault where they:

• have sexual intercourse with another person without that person's consent;
• do so in circumstances of aggravation; and
• know that the other person does not consent to the sexual intercourse.

The Prosecution must prove each element of the offence beyond reasonable doubt.

The maximum penalty for Aggravated Sexual Assault under section 61J is 20 years' imprisonment. The offence also carries a standard non-parole period of 10 years.

Circumstances of Aggravation

For an allegation to amount to Aggravated Sexual Assault under section 61J, the Prosecution must establish one or more statutory circumstances of aggravation.

These include circumstances where:

1. Actual bodily harm is inflicted
   At the time of, immediately before or immediately after the alleged offence, the accused intentionally or recklessly inflicts actual bodily harm on the complainant or another person who is present or nearby.
2. A threat involving an offensive weapon or instrument is made
   At the relevant time, the accused threatens to inflict actual bodily harm on the complainant or another person who is present or nearby by means of an offensive weapon or instrument.
3. A threat of grievous bodily harm or wounding is made
   At the relevant time, the accused threatens to inflict grievous bodily harm or wounding on the complainant or another person who is present or nearby.
4. The accused is in company
   The accused is in the company of another person or persons.
5. The complainant is under the authority of the accused
   The complainant is, either generally or at the time of the alleged offence, under the authority of the accused.
6. The complainant has a serious physical disability
7. The complainant has a cognitive impairment
8. The accused breaks and enters a dwelling-house or other building
   The accused breaks and enters the building with the intention of committing the alleged offence or another serious indictable offence.
9. The complainant is deprived of their liberty
   The accused deprives the complainant of their liberty for a period before or after the alleged offence.

The precise circumstance of aggravation relied upon by the Prosecution must be identified and proved beyond reasonable doubt.

Elements of Aggravated Sexual Assault

To prove Aggravated Sexual Assault, the Prosecution must establish each of the following elements beyond reasonable doubt.

1. Sexual Intercourse Occurred

The Prosecution must prove that sexual intercourse occurred as defined by the Crimes Act 1900 (NSW).

Whether sexual intercourse occurred may itself be a disputed issue depending on the circumstances of the case.

The Prosecution must rely upon evidence capable of establishing the alleged conduct beyond reasonable doubt.

2. The Complainant Did Not Consent

The Prosecution must establish that the complainant did not consent to the sexual intercourse.

Under NSW law, a person does not consent unless they freely and voluntarily agree to the sexual activity.

The circumstances surrounding the alleged sexual activity are critical when determining whether consent was present.

3. The Accused Had the Required Knowledge Concerning Consent

The Prosecution must establish that the accused knew that the complainant did not consent.

The issue of what the accused knew, and the circumstances in which the alleged sexual activity occurred, can be central to the Prosecution case.

The relevant evidence may include what was said and done before, during and after the alleged incident, together with the surrounding circumstances.

4. Circumstances of Aggravation Existed

The Prosecution must also prove at least one of the statutory circumstances of aggravation.

It is not sufficient simply to establish an allegation of sexual assault. The Prosecution must prove the additional circumstance that elevates the alleged offence to Aggravated Sexual Assault under section 61J.

The evidence concerning the alleged aggravating circumstance should therefore be carefully examined independently.

What is the Maximum Penalty for Aggravated Sexual Assault?

Under section 61J of the Crimes Act 1900 (NSW), the maximum penalty for Aggravated Sexual Assault is:

20 years' imprisonment

The offence also has a standard non-parole period of 10 years under the Crimes (Sentencing Procedure) Act 1999 (NSW).

A maximum penalty is the highest penalty available to the court. It does not mean that every person convicted of the offence will receive a sentence of 20 years' imprisonment.

Similarly, a standard non-parole period is not a mandatory minimum sentence. The sentence imposed will depend upon the objective seriousness of the particular offence and the individual circumstances of the offender.

Relevant sentencing considerations may include:

• the nature and circumstances of the offending;
• the particular circumstance of aggravation;
• the level of violence or force alleged;
• whether actual bodily harm was caused;
• the nature and extent of any injuries;
• whether threats were made;
• whether a weapon or instrument was involved;
• the duration of the offending;
• the offender's criminal history;
• whether a guilty plea was entered;
• the offender's personal circumstances;
• prospects of rehabilitation; and
• other relevant sentencing considerations.

Aggravated Sexual Assault and Sexual Assault

Aggravated Sexual Assault is distinct from Sexual Assault under section 61I of the Crimes Act 1900 (NSW).

Sexual Assault carries a maximum penalty of 14 years' imprisonment.

Aggravated Sexual Assault carries a higher maximum penalty of 20 years' imprisonment because the Prosecution alleges that one or more additional statutory circumstances of aggravation existed.

The distinction between the two offences can therefore be significant.

In some matters, the underlying allegation may be disputed. In others, the issue may concern whether the Prosecution can establish the alleged circumstance of aggravation.

Defending an Aggravated Sexual Assault Charge

Being charged with Aggravated Sexual Assault does not mean that you are guilty.

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

Depending upon the circumstances of the case, issues that may arise include:

• whether sexual intercourse occurred as alleged;
• whether the complainant consented;
• whether the Prosecution can establish that the accused knew the complainant did not consent;
• whether the evidence reliably establishes what occurred;
• whether the alleged circumstance of aggravation existed;
• whether the accused caused the alleged injury;
• whether an alleged threat was made;
• whether an alleged weapon or instrument was involved;
• whether the accused was in company as alleged;
• whether the complainant was deprived of their liberty;
• whether witness evidence is reliable and consistent;
• whether there are inconsistencies between statements and other evidence;
• whether communications support or contradict the allegations;
• whether forensic or medical evidence is consistent with the Prosecution case; and
• whether the Prosecution can establish every element of the offence beyond reasonable doubt.

A defence may involve challenging the allegation itself, the evidence concerning consent, the Prosecution's ability to establish the required knowledge or the alleged circumstance of aggravation.

Evidence in Aggravated Sexual Assault Cases

Aggravated Sexual Assault Prosecutions can involve extensive and highly sensitive evidence.

Depending upon the circumstances, the Prosecution may rely upon:

• complainant and witness statements;
• police interviews;
• CCTV footage;
• body-worn camera footage;
• mobile phone footage;
• text messages and other communications;
• social media material;
• photographs;
• call records;
• medical evidence;
• forensic evidence;
• DNA evidence;
• location data; and
• evidence concerning events before and after the alleged incident.

Where a circumstance of aggravation is alleged, there may also be separate evidence concerning that issue, including medical evidence, photographs of injuries, witness accounts or other material.

At Chidiac & Associates, we carefully examine the evidence as a whole and assess whether it is capable of establishing each element of the offence.

Aggravated Sexual Assault Investigations

An investigation may commence before any charge is laid.

Police may contact a person, request that they attend a police station or seek to conduct an interview.

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

If you become aware that you are the subject of an Aggravated Sexual Assault investigation, obtaining legal advice before participating in a police interview can be important.

Early advice can assist you in understanding the allegations, identifying relevant issues and making informed decisions about how to respond.

How We Can Help

An Aggravated Sexual Assault allegation requires careful analysis of the evidence, the applicable legislation and the specific circumstance of aggravation relied upon by the Prosecution.

At Chidiac & Associates, we provide:

• confidential advice about the allegations;
• representation during police investigations;
• advice concerning police interviews;
• advice and representation in relation to bail;
• detailed analysis of Prosecution evidence;
• review of electronic communications and other digital evidence;
• assessment of witness and identification evidence;
• analysis of medical 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 discretion, rigorous preparation, careful analysis and strong courtroom advocacy.

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