Sydney Criminal Lawyer Vows to Fight Charge of Aggravated Sexual Assault

Sydney Criminal Lawyer Steven Mercael is currently on bail and continues to practise as a defence lawyer, as he awaits his trial which is scheduled to commence in February 2021.

Mr Mercael’s criminal defence team applied to have his name suppressed in the Local Court last year, based on the fact he works in the legal profession, regularly attends court and deals with a range of people in the criminal justice system.

The argument was that publishing his name would make it difficult for him to effectively undertake his job.

However, both his bid in the Local Court and his subsequent appeal to the Supreme Court of NSW were unsuccessful.

Allegation of aggravated sexual assault

Mr Mercael is facing one charge of aggravated sexual assault, which was laid by police last year.

In a statement of facts, police allege Mr Mercael struck a woman across her face before forcing her to perform a sexual act on him in Parramatta in December, 2019.

It’s also alleged the pair had been drinking alcohol and taking cocaine, before Mr Mercael began making sexual advances towards her.

Police allege the woman pleaded “please stop, let me go”, while Mr Mercael stated “you dirty slut”, “I always get what I want” and “I know you enjoy it”.

It’s alleged that after the incident, the woman told a friend before they went together to Sutherland police station, where photos were taken of bruising to her knees.

Presumption of innocence

Mr Mercael has pleaded not guilty and steadfastly maintains his innocence. He has vowed to fight the allegations.

Like any other defendant, he is entitled to be presumed innocent until and unless he is proven to be guilty in a court of law. The trial is expected to last about three weeks and will be heard in the Parramatta District Court.

It’s been reported that Mr Mercael has informed his clients and the Law Society of New South Wales about the proceedings against him.

The offence of 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.