The Law and Penalties for Aggravated Sexual Assault in New South Wales
A man who was found guilty by a jury in Downing Centre District Court of multiple counts of aggravated sexual assault, kidnapping and armed robbery has been sentenced to a full term of 38 years in prison with a non-parole period of 28 years.
The man, whose name is the subject of a non-publication order, was found to have engaged in a six-week sexual assault spree, during which he victimised eight women.
Taking into account the time he has already served, the man will be eligible to apply for release on parole in 2046.
The offences
The offender booked a sex worker on the morning of 7 May 2016, before arriving at the hotel she was working from. Shortly after entering the room, he pulled out a butcher knife, robbed the woman of a number of her personal items and sexually assaulted her a knife-point.
The court heard the man had consumed ‘ice’ before the encounter, and that he told his terrified victim “I could stab you, take everything and leave” after performing sexual acts on her.
The court further heard that when the man turned around, the woman ran to the front door, opened it and ran down the fire stair before telling reception staff she had been “bashed and robbed”.
Later that day, the man attended a unit block in Parramatta to meet a 28-year old transgender woman for sex. According to the woman, he showed her footage of him engaging in sexual acts with a “blond, white woman” that he “slapped around” and “kicked off the bed”.
The victim told the media the man then started ripping her clothes off, before throwing her on the bed, physically assaulting her, spitting in her eye and sexually assaulting her.
The spree continued over the next six weeks, during which the man committed similar offences at apartments and homes in Parramatta and at a hotel in the city, before being arrested, charged and refused bail in late June.
Remarks on sentencing
During the recent sentencing hearing, District Court Judge Deborah Sweeney labelled the man’s conduct as “aggressive and paranoid”.
“He recorded some of the sex acts to set up in his defence that it was consensual and took photos of (his victim’s) ID to intimidate them against talking to police because he had their home address,” her Honour remarked.
“The filming added humiliation to sexual violence that was heightened by the offender calling” one of the victims a “‘good boy’ throughout the assault”.
“His behaviour was purposeful and was planned. He targeted escorts who were alone and who would be vulnerable because they were alone.”
The man is reported to have held his head in his hands and sobbed, with his family members looking on inside the courtroom.
Previous case
The case comes almost exactly a decade after 44-year old John Zydias of Melbourne was sentenced to 28 years behind bars in June 2009 for 25 counts of rape and 61 of indecent assault, committed on 11 women between 1991 at 2006.
Mr Xydias committed the offences at the home he shared with his parents and at their holiday home, often spiking the drinks of his victims with drugs to render them unconscious, before sexually assaulting them and taking pieces of their clothing as souvenirs.
Mr Xydias is said to have tried to blame his victims for the incidents, claiming they voluntarily drunk alcohol with him and therefore had a hand in their own fates.
The offences were discovered after the man’s girlfriend became suspicious of a DVD she found at the parents’ residence, which contained footage of a restaurant change room. She surrendered the footage to police, who exercised a search warrant at the home, locating 13 videos of him sexually assaulting unconscious women.
The sentencing court was later told that one of the women remained unconscious for two days during which she was repeatedly sexually assaulted.
Aggravated sexual assault in NSW
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.
The offence of kidnapping in NSW
Kidnapping is an offence under section 86 of the Crimes Act 1900 (NSW) which carries a maximum penalty of 14 years in prison
To establish the offence, the prosecution must prove beyond reasonable doubt that the defendant:
- Took or detained a person,
- Did so without the other person’s consent, and
- Intended by doing so to hold the person to ransom, or commit a serious indictable offence, or obtain any other advantage.
A serious indictable offence is one which is punishable by at least 5 years in prison, which includes larceny (stealing).
The maximum penalty increases to 20 years in prison where the defendant:
- was in the company of another person or persons, or
- caused actual bodily harm to the complainant.
Actual bodily harm is that which is more than ‘transient or trifling’, and includes lasting cuts or bruises.
The maximum penalty increases to 25 years in prison where the defendant was:
- in the company of another person or persons, and
- caused actual bodily harm to the complainant.
The offence of armed robbery in New South Wales
Armed robbery is an offence under section 97 of the Crimes Act which carries a maximum penalty of 20 years in prison
To establish the offence, the prosecution must prove beyond reasonable doubt that the defendant:
- Was armed with an offensive weapon or instrument, or was in the company of another person or persons, and
- Robbed or assaulted another person with the intention to rob, or stopped any mail, person with mail, vehicle, train with the intention to rob or search.
The legislation does not define the word ‘rob’. However, the courts have found that it is where:
“the victim… [is] compelled by force or fear to submit to the theft… It is not necessary that the offender applies force… It is enough that the offender by his or her conduct… puts the victim in fear of violence”.
‘Offensive weapon or instrument’ means:
- a dangerous weapon, or
- anything made or adapted for offensive purposes, whether or not it is ordinarily used as a weapon or capable of causing harm.
The maximum penalty increases to 25 years in prison where the defendant was armed with a ‘dangerous weapon’, which is:
- a firearm or imitation firearm, or
- a prohibited weapon, or
- a spear gun.
Defences to the charge include:
- Self-defence
- Duress
- Necessity, and in cases where the act was done to obtain property
- Claim of right
A claim of right defence is available where a person is charged with an offence which contains an element of larceny (stealing) and honestly believes on reasonable grounds he or she was entitled to the whole of the property being sought or obtained.
