A Western Australian man who physically assaulted his 56-year old mother before sexually assaulting her three times has been sentenced to a full-term of 17 years in prison.
According to court papers, the man – whose identity is subject to a suppression order to protect the victim – was intoxicated on alcohol and methamphetamine when he returned to the Pilbara home he shared with his mother in November 2019.
Without warning, he struck his mother to the hip with a heavy PVC pipe – causing the middle age woman to fall to the floor.
He then dragged his mother by the hair to her bedroom, pushed her on to her bed and repeatedly raped her.
He then pushed her off the bed and went to another room, where he fell asleep.
The victim was left screaming on the floor, having suffered a number of physical injuries including a fractured hip.
The woman remained there until the morning, before managing to drag herself to a phone and calling police.
During the subsequent sentencing hearing, the presiding judge described the offending conduct a “the worst… [he had] seen in… [his] career”.
“People under [the influence] are prone to commit criminal offences of a wide range of seriousness up to and including acts of the utmost evil, which is what I’m dealing with here”, the judge remarked, telling the defendant:
“Of course it wasn’t methylamphetamine that raped your mother… it was you”.
The man is required to serve 15 years behind bars before he will become eligible to apply for release on parole.
The offence of sexual assault in NSW
It is defined as where a person “has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse”.
‘Sexual intercourse’ is defined by section 61H of the Act as:
“(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:
(i) any part of the body of another person, or
(ii) any object manipulated by another person,
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, or
(d) the continuation of sexual intercourse…”
What is consent?
Section 61HE of the Act provides that a person consents to sexual activity if he or she freely and voluntarily agrees to it.
The section proceeds to state that an alleged offender knows there is no consent if he or she engages in sexual activity, or incites anyone to do so, in circumstances where he or she:
- knows the alleged victim does not consent, or
- is reckless as to whether the alleged victim consents, or
- has no reasonable grounds to believe the alleged victim consents.
In deciding whether there is consent, the court must consider any steps taken by the alleged offender to ascertain whether there is consent.
The court cannot take into account any self-induced intoxication by the alleged offender.
The section makes clear there is no consent where the alleged victim:
- does not have the capacity to consent due to factors such as their age (outlined above) or cognitive ability, or
- does not have the opportunity to consent because they are unconscious or asleep, or
- consents because of threats of force or terror, or
- consents due to being unlawfully detained, or
- consents because of a mistaken belief:
(a) as to the identity of the alleged offender,
(b) that the two are married,
(c) that the activity is for health or hygienic purposes, or
(d) that arises through any fraud.
The grounds upon which it may be established that the alleged victim did not consent include that he or she:
- was substantially intoxicated,
- was intimidated, coerced or threatened in any way, or
- was under the authority or trust of the alleged offender.
The section further makes clear that a failure to resist the activity not in itself to be regarded as establishing consent.
The offence of aggravated sexual assault in NSW
Aggravated sexual assault is an offence under section 61J of the Crimes Act 1900 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”.
‘Circumstances of aggravation’ are present 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.
What are the defences?
In addition to the requirement that the prosecution must prove each element of the relevant offence, it must also disprove beyond reasonable doubt any of the following defences if properly raised:
- Duress, which is where you were threatened or coerced,
- Necessity, where the act was necessary to avert danger, and
- Self-defence, where you engaged in the act to defend yourself or another.
Charged with a sexual offence?
If you have been accused of a sexual offence and require the assistance of lawyers who are vastly experienced and have an outstanding track record of defending these cases, call Sydney Criminal Lawyers® 24/7 on (02) 9261 8881 to arrange a free first conference.