Former NSW Labor MP Charged with Aggravated Sexual Assault

Documents presented in the Newcastle court today allege that former NSW Labor minister Milton Orkopoulos repeatedly sexually assaulted an 11-year old boy while serving as a Lake Macquarie Councillor.

The 62-year old has already served 11 years after he was convicted of 30 offences, including child sexual offences and drug offences for conduct between 1995 and 2006.

He was arrested again earlier this year for violating his parole.

Mr Orkopolous appeared in court via video link from a maximum security cell in Long Bay prison in Sydney, facing 15 new historical child sex offences.

These charges including three counts of forcing a child into prostitution, five counts of aggravated sexual assault and five counts of aggravated indecent assault relate to one victim. Two other charges of aggravated indecent assault relate to another boy at Seal Rocks on the Mid-North Coast.

Mr Orkopoulos is a former NSW Labor politician. He was a Lake Macquarie councillor for four years and served in Parliament from 1999 to 2006, including a stint as Aboriginal affairs minister under former premier Morris Iemma.

Mr Orkopoulos did not apply for bail and is expected to appear again in August 2020.

The offence of aggravated sexual assault

Aggravated sexual assault is an offence under section 61J of the Crimes Act 1900 (NSW) (‘the Act’) which carries a maximum penalty of 20 years’ imprisonment.

It is where a person has “sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse”.

Sexual intercourse is defined by section 61HA of the Act as 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:

• any part of the body of another person, or
• any object manipulated by another person, or
• sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or
• cunnilingus, or
• the continuation of any of the above conduct.

‘Circumstances of aggravation’ are where:

• at the time of, or immediately before or after, the commission of the offence, the defendant intentionally or recklessly inflicts actual bodily harm on the complainant or any other person who is present or nearby, or
• at the time of, or immediately before or after, the commission of the offence, the defendant threatens to inflict actual bodily harm on the complainant or any other person who is present or nearby by means of an offensive weapon or instrument, or
• the defendant is in the company of another person/s, or
• the complainant is under the age of 16 years, or
• the complainant is (whether generally or at the time of the commission of the offence) under the authority of the offender, or
• the complainant has a serious physical disability, or
• the complainant has a cognitive impairment, or
• the complainant breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or
• the complainant deprives the complainant of his or her liberty for a period before or after the commission of the offence.

Aggravated sexual assault carries what’s known as a ‘standard non-parole period’ (SNPP), which in this case is 10 years imprisonment.

An SNPP is a reference point or guidepost for a sentencing judge when deciding the minimum term (or non-parole period) that a person must spend behind bars before becoming eligible for release from custody on parole.

The issue of consent

To establish guilt in a sexual assault case, the prosecution will need to prove that sexual intercourse took place and that the complainant did not consent to the intercourse.

Section 61HE of the Act provides that consent is considered to have been given in the context of sexual assault cases where a person “freely and voluntarily agrees to the sexual intercourse.”

To establish a lack of consent, the prosecution must first prove the complainant did not consent.

It must then prove that the defendant knew the complainant did not consent.

This second requirement is established where the prosecution proves that the defendant:

• knew the complainant was not consenting, or
• was reckless as to whether the complainant was consenting, or
• had no reasonable grounds to believe the complainant was consenting.

In making such a finding, the court must have regard to all of the circumstances of the case including any steps taken by the defendant to ascertain whether the complainant was consenting, but it must not consider any self-induced intoxication by the defendant.

In addition to this, the law provides that a person cannot consent to sexual intercourse where he or she:

• does not have the capacity to consent due to their age or cognitive incapacity, or
• does not have the opportunity to consent as they are unconscious or asleep, or
• consents because of threats of force or terror, or
• is unlawfully detained.

The law also provides that a person does not consent if under a mistaken belief that:

• he or she is married to the defendant, or
• that the sexual intercourse is for health or hygienic purposes.

The law also presently provides that the grounds on which it may be established that a complainant does not consent to sexual intercourse include where he or she:

• was substantially affected by drugs or alcohol,
• was subjected to intimidatory or coercive conduct, or another threat, that did not involve force, or
• was taken advantage of through an abuse of authority or trust.

The law also makes it explicitly clear that a complainant who does not offer physical resistance is not necessarily consenting.