SENTENCING FOR THE CRIMINAL OFFENCE OF RAPE IN NSW AND AUSTRALIA: THE LAW

The criminal offence of rape in NSW is a strictly indictable offence that can result in severe punishment and consequences. Criminal Lawyers Group have been nationally recognised as the top criminal law firm in NSW for securing the best bail, verdict, withdrawal of charges and sentencing outcomes for clients who have been charged with the criminal offence of rape.

If you or anyone you know have been accused or charged with the criminal offence of rape, contact our award-winning team of expert sexual assault lawyers at Criminal Lawyers Group immediately for a free and immediate consultation.

WHAT IS THE CRIMINAL OFFENCE OF RAPE IN NSW?

The criminal offence of rape is referred to within the law as sexual assault and is defined in Section 61I of the Crimes Act 1900 (NSW) as having sexual intercourse with another person without the consent of the other person and knowing that the other person does not consent to the sexual intercourse.

WHAT IS THE MAXIMUM SENTENCE FOR THE CRIMINAL OFFENCE OF RAPE IN NSW?

Section 61I of the Crimes Act 1900 (NSW) prescribes a maximum penalty of 14 years imprisonment for a person convicted of the criminal offence of rape in NSW, with a standard non-parole period of 7 years imprisonment.

WHAT FACTORS ARE CONSIDERED IN SENTENCING FOR RAPE?

In determining sentencing, the judge will consider objective, subjective, mitigating and aggravating factors. These include, but are not limited to:

The nature of the offending
Degree of planning
Level of violence
Victim vulnerability
Effects on the victim
Remorse
Prior criminal history, particularly previous sexual convictions
Prospects of rehabilitation
Early guilty plea.

INCREASED MAXIMUM SENTENCE FOR RAPE COMMITTED IN CIRCUMSTANCES OF AGGRAVATION

Section 61J of the Crimes Act 1900 (NSW) prescribes a maximum penalty of 20 years imprisonment for a person convicted of aggravated sexual assault, with a standard non-parole period of 20 years imprisonment.

Aggravated sexual assault is constituted as having occurred if a person has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and knowing that the other person does not consent to the sexual intercourse.

WHAT ARE CIRCUMSTANCES OF AGGRAVATION?

Circumstances of Aggravation for the purpose of the criminal offence of Aggravated Sexual Assault are defined in Section 61J of the Crimes Act 1900 (NSW) and include, but are not limited to:

The accused person is in the company of another person or persons.
The complainant is under the age of 16 years.
The complainant has a cognitive impairment, or
The accused person deprives the complainant of his or her liberty for a period before or after the commission of the offence.

For an assessment of all circumstances of aggravation, speak with our specialised sexual assault lawyers now.

MAXIMUM SENTENCE OF LIFE IMPRISONMENT FOR AGGRAVATED SEXUAL ASSAULT IN COMPANY

Section 61JA of the Crimes Act 1900 (NSW) prescribes a maximum sentence of life imprisonment for a conviction of the criminal offence of aggravated sexual assault in company.

If you have been charged with this criminal offence, it is crucial to contact us immediately.

WHAT IS THE DEFINITION OF SEXUAL INTERCOURSE?

Sexual intercourse is defined as:

The penetration to any extent of the genitalia or anus of a person by any part of the body of another person or any object manipulated by another person, or
The introduction of any part of the genitalia of a person into the mouth of another person, or
The application of the mouth or tongue to the female genitalia, or
The continuation of sexual intercourse as defined above.

WHAT IS CONSIDERED TO BE CONSENT?

As the absence of consent is a core element of the criminal offence of rape, it is important to understand what consent is.

Consent is defined by Section 61HI of the Crimes Act 1900 (NSW) as having occurred if, at the time of the sexual activity, the person freely and voluntarily agrees to the sexual activity. The legislation prescribes the following considerations, which are of importance:

A person may, by words or conduct, withdraw consent to a sexual activity at any time.
Sexual activity that occurs after consent has been withdrawn occurs without consent.
A person who does not offer physical or verbal resistance to a sexual activity is not, by reason only of that fact, to be taken to consent to the sexual activity.
A person who consents to a particular sexual activity is not, by reason only of that fact, to be taken to consent to any other sexual activity.
A person who consents to a sexual activity with a person on one occasion is not, by reason only of that fact, to be taken to consent to a sexual activity with that person on another occasion, or another person on that or another occasion.

WHAT ARE CIRCUMSTANCES OF NO CONSENT?

Section 61HJ of the Crimes Act 1900 (NSW) defines the circumstances in which there is no consent. These include, but are not limited to:

The person does not say or do anything to communicate consent, or
The person does not have the capacity to consent to the sexual activity.
The person is unconscious or asleep
The person participates in the sexual activity because of coercion, blackmail or intimidation.
The person participates in the sexual activity because the person or another person is unlawfully detained

Section 61HK of the Crimes Act 1900 (NSW) considers an accused to have known that another person does not consent to the sexual activity if:

The accused person actually knows the other person does not consent to the sexual activity, or
The accused person is reckless as to whether the other person consents to the sexual activity, or
Any belief that the accused person has, or may have, that the other person consents to the sexual activity is not reasonable in the circumstances.

WHICH COURT WILL HEAR THE MATTER?

The criminal offence of rape is a strictly indictable matter, meaning it must be finalised in the District Court or above. However, all sexual assault matters commence in the Local Court and are subject to the Early Appropriate Pleas of Guilty (EAGP) Scheme.

DEFENCES TO THE CRIMINAL OFFENCE OF RAPE:

Defences to the criminal offence of rape include, but are not limited to:

Consent: That the alleged victim freely and voluntarily agreed to the sexual activity.
Mental illness: That the accused committed the act but had a mental illness at the time of the offence that meant that they did not know the nature and quality of the act or did not know that the act was wrong.
Did not commit the act: Mistaken identity, falsely accused or for any other reason was charged despite not having committed the act.
Necessity: That the accused committed the act to avoid an irreversible evil or imminent death to themselves or others whom the accused was bound to protect.
Duress: Forced to commit the offence due to a threat of death or serious injury against themselves or a close associate.

CAN I GET BAIL FOR A CHARGE OF RAPE?

Yes, you may be granted bail on a charge of rape. Our expert criminal lawyers at Criminal Lawyers Group were awarded the best law firm in NSW for securing bail for our clients who have been charged with serious criminal offences, including rape.

SENTENCES FOR THE CRIMINAL OFFENCE OF RAPE IN OTHER JURISDICTIONS

The criminal offence of rape is subject to the jurisdiction of each state and territory in Australia. Queensland, South Australia and Northern Territory have the highest possible penalty of a maximum term of life imprisonment. However, this penalty is only imposed in rare and exceptional circumstances.

PRINCIPAL LAWYER MR STEVEN MERCAEL SECURES NOT GUILTY VERDICT

Mr Steven Mercael, Principal and award-winning criminal lawyer at Criminal Lawyers Group, secured another Not Guilty verdict for a man who had been accused of the rape of his former colleague.

The man maintained his innocence and the jury returned the verdict of Not Guilty after 2 hours of deliberation.

In addressing the media outside court, Mr Mercael stated, “my client reaffirmed his innocence throughout and we knew that justice would prevail.”

This result is among the latest of a continuous record of Not Guilty verdicts achieved by Mr Mercael and Criminal Lawyers Group, who were recently awarded the titles of Best Criminal Lawyers in Sydney and NSW.

CONTACT CRIMINAL LAWYERS GROUP NOW

If you or anyone you know have been accused or charged with the criminal offence of rape, contact our specialised criminal lawyers at Criminal Lawyers Group immediately for a free consultation so that we may secure the best outcome for you.

Our award-winning team of criminal law experts are nationally recognised for securing the best bail, verdict, withdrawal of charges and sentencing outcomes for our clients across NSW who have been charged with the criminal offence of rape.