Sexual assault is one of the most serious criminal charges a person can face in New South Wales. When certain circumstances are present at the time of the offence, the charge can be elevated to aggravated sexual assault, which carries significantly harsher penalties. Understanding what makes an offence ‘aggravated’ is important for anyone navigating this area of the law.
What is aggravated sexual assault?
Under section 61J Crimes Act 1900 (NSW), aggravated sexual assault occurs when a sexual assault is accompanied by one or more aggravating circumstances specified in the legislation. These circumstances are considered to increase the objective seriousness of the offence, which is reflected in the maximum penalties that apply.
The offence of sexual assault in NSW carries a maximum penalty of 14 years imprisonment. By contrast, the offence of aggravated sexual assault can attract up to 20 years imprisonment, and in the most serious cases, life imprisonment.
What circumstances make a sexual assault ‘aggravated’?
The Crimes Act sets out a specific list of aggravating factors. If any one of these factors is present, it is likely the charge will be an ‘aggravated’ sexual assault. They include:
- The sexual assault is said to have been committed by the accused in the company of another person or people (other than the complainant). The complainant is under the age of 16 years
- The complainant is under the authority of the accused, such as in an employment or supervisory relationship
- The complainant has a serious physical disability or cognitive impairment
- The accused inflicts actual bodily harm on the complainant or any other person present
- The accused threatens to inflict actual bodily harm on the complainant or another person using a weapon or instrument
- The accused deprives the complainant of their liberty before or after the offence
Each of these factors reflects a particular kind of vulnerability or additional harm that the law treats as warranting a more serious response.
What are the maximum penalties?
Aggravated sexual assault is a serious indictable offence which is finalised in the District Court. The maximum penalties are:
- Aggravated sexual assault: 20 years imprisonment
- Aggravated sexual assault in a company: life imprisonment
Courts take these matters extremely seriously. A finding of guilt can result in a lengthy custodial sentence and registration on the NSW Child Protection Register, where applicable.
What are your legal options?
Being charged does not mean being convicted. There are avenues of defence available depending on the circumstances of the case, including challenging consent, identity, and even the fact of sexual activity having taken place. A lawyer will examine the evidence carefully and advise on the strongest strategy.
It may also be possible through negotiation with the prosecution for the circumstances of aggravation to be amended or discontinued.
When should you speak to a lawyer?
If you have been charged with aggravated sexual assault or if you believe charges may be coming, legal advice should be sought as early as possible. These matters involve complex legal and evidentiary issues that require experienced criminal defence representation from the outset.The team at Kingston Fox has extensive experience defending serious sexual assault matters in NSW courts. Contact us today for a confidential discussion about your situation and to understand your options.
