The latest report released by the NSW Bureau of Crime Statistics and Research (BOCSAR) shows that sexual assault was a significant problem area for the Central Coast local government area.

Over a five year period commencing April 2016 to March 2021 there was a rise in sexual assaults from 289 to 393.

Recent cases

Last week the NSW Court of Criminal Appeal dismissed an appeal against the sentence imposed by Gosford Court Judge Tanya Bright in 2020 in relation to a man who subjected a woman to a 12 hour ordeal of rape and torture.

Justices Mark Leeming, Robert Allan Hulme and Stephen Campbell, on Friday dismissed Hall's appeal.

"The sentence imposed upon the applicant was certainly a stern one, but the offending viewed overall was extremely grave," said Justice Hulme.

The man was given a 22 year jail term in Gosford District Court.

Central Coast lawyers appear in Gosford District Court for sentence and trials almost every day of the week.

The Problem of Sexual Assault

It has been long established that if an individual has been sexually assaulted, they are at a greater risk of suffering from a myriad of physical and long-term psychological impacts following the assault or sexual act which was committed against them: The Queen v Kilic (2016) 259 CLR 256 at [21].

This recognition of the detrimental impacts which the sexual conduct has upon the complainant of these sexual crimes has required judicial officers to depart from previous practices and conform with evolving community attitudes and ensure that increased sentences are imposed which correspond with the objective seriousness of the offence: R v MJR (2002) 54 NSWLR 368 at [11].

Sexual Assault Laws in New South Wales

Sexual intercourse is defined under section 61H of the Crimes Act to mean:

(a) Sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:

  1. Any part of the body of another person, or
  2. Any object manipulated by another person, or

  3. Except where the penetration is carried out for proper medical purposes, or

(b) Sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or

(c) Cunnilingus,

Engaging in sexual intercourse knowing that the other individual is not, will not and has not consented to the sexual conduct is regarded seriously by the courts, as it is seen as an extreme form of violence: R v Russell (unreported, 21/6/1996, NSWCCA).

Despite the extremity associated with sexual violence and the strong community approach against such conduct, judicial officers have accepted that "some forms of sexual activity may be regarded more seriously than others": R v PGM (2008) 187 A Crim R 152 at [26].

Whilst there exists no formal hierarchy or categorisation of sentencing against particular sexual offences, judicial officers will assess where on the objective level of seriousness a particular offence ought to be placed. For instance, judicial officers have regarded anal intercourse to be degrading in nature and should it be found that the offender has compelled a complainant to engage in such degrading conduct, it will be regarded more seriously in nature and thus as aggravating in nature: per Dunford J in R v Russell (unreported, 21/6/1996, NSWCCA).

Assessment of the objective seriousness of the sexual assault and subsequent circumstances of aggravation

Each matter which involves an instance of sexual intercourse which was occasioned against a complainant without their respective consent will require an assessment of the circumstances of the unwarranted and unsolicited act of sexual intercourse in determining the objective seriousness of the offence and whether there is present any circumstances of aggravation. In conducting such an assessment, the judicial officer will be able to identify where the sexual assault offence "lies on the spectrum or scale of seriousness": Ibbs v The Queen (1987) 163 CLR 447 per Mason CJ. This objectification of the seriousness of the offence must be conducted because even though

".every offence of this kind is a serious offence. Those whose duty it is to deal with crimes of this kind and to sentence those who commit them know that though each case is inherently serious, some are more serious than others. In some cases, the degree of violence, the physical hurt inflicted, the form of forced intercourse and the circumstances, of humiliation and otherwise, are much greater than are involved in this case [and others]. It is to be understood that in sentencing it is appropriate - indeed, in most cases it is necessary - that the sentencing judge form and record his assessment of where, on the relevant scale of seriousness, the particular offence lies": R v Gebrail (unreported, 18/11/1994, NSWCCA) at [11] per Mahoney JA.

Part of the assessment of the objective seriousness of the sexual assault will entail the judicial officer considering the type of sexual act which was engaged in by the offender amongst the surrounding circumstances of the offence to determine the ordeal which the complainant may have encountered before and after the conduct.

An instance where the circumstances surrounding the sexual conduct inflicted onto a complainant was heavily relied upon in the sentencing of an offender is demonstrated in R v Hall [2017] NSWCCA 313, where the victim was threatened by a large knife which was placed against her throat. The offender then forced his penis into her mouth and performed fellatio for a period of 10 to 15 minutes. Following completion of the fellatio, he forced sexual intercourse onto the victim which occurred for a period of 10 to 15 minutes before leaving. All of the sexual conduct which was committed against the victim occurred without the victim's consent. The judicial officer considered the officer to be "objectively quite terrible criminal conduct, which demands a response appropriately reflective of the community's abhorrence for and condemnation of such conduct": per Hulme J in R v Hall at [101].

As previously mentioned s 61J(2) provides a list of circumstances of aggravation which are relevant to a aggravated sexual assault. This list is by no means an exhaustive one. Other elements which a judicial officer will commonly examine as a factor of aggravation will include:

  1. Breach of trust - If the complainant was in a vulnerable position which required a degree of trust to be formed between the complainant and the offender. In these matters, the offender has grossly taken advantage of a relationship of trust by committing sexual acts: R v Qin [2008] NSWCCA 189 at [36].
  2. Home invasion - The criminality of the offender is aggravated if the sexual act is committed against a complainant during a home invasion. This is a legislated aggravating circumstance in s 61J(2)(h) Crimes Act and in s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999 (NSW).
  3. Use of a weapon or object - Should a weapon or object have been used in the commission of the sexual act or to threaten the complainant, this will substantially aggravate the offence.
  4. Intoxication and spiking a drink - The spiking of a complainant's drink with illicit substances or the enabling of drinking alcoholic beverages and later taking advantage of the complainant whilst in a vulnerable situation.
  5. Prolonged duration of a sexual assault - Historically most sexual assaults which are inflicted against a complainant will not ordinarily occur for a prolonged period of time and thus a short duration often does not reduce the objective seriousness of the offence: R v Hibberd (2009) 194 A Crim 1. However, it has been found that sexual conduct which occurs over a prolonged period of time will increase the objective seriousness of the offence: R v Hibberd at [54].

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.