The Law, Defences and Penalties for the Offence of Aggravated Sexual Assault in NSW

by Ugur Nedim & Sonia Hickey

Sydney man Joshua Rini is behind prison bars and facing additional charges, after a third woman has come forward accusing him of sexual assault.

Mr Rini handed himself into Police after a public appeal for information on his whereabouts in July this year, and was charged with two counts sexual intercourse without consent. Those two matters remain before the courts.

At the time, he was released on strict conditional bail. However, when New South Wales Police officers went to his home to arrest him after a third woman came forward accusing him of sexual assault, he had moved. He would not disclose his location when contacted by police, but later turned himself into, and was charged with aggravated sexual assault and breach of bail.

Given that Mr Rini had breached his bail conditions by moving home, the Magistrate in Waverley Local Court formally refused him bail and remanded in custody. Rini is due back in court in the coming weeks.

All three women say they were sexually assaulted after meeting up with Mr Rini via the dating app Tinder.

Tinder has been under fire for several years for its complacent attitude with regard to sexual assaults as a result of meetups via the app.

It is one of the fastest growing dating apps, and it’s popularity has soared during this year’s Covid-19 lockdowns. But a recent survey conducted in Australia shows that of 48 people who have contacted Tinder about a sexual assault, only 11 received a response.

Along with a failure to act on complaints in a meaningful way, the company has also been accused of not doing enough to stop alleged offenders from setting up fake profiles so that they can re-offend. One example is Victoria’s Glen Hartland, who is serving a 14 year prison term for sexual assault. He  continued to use the app even after he had been charged by police.

The other widespread concern is a feature of the app is the ‘unmatch’  function which effectively blocks and deletes any communication between people on the app. For sexual assault victims, this means that their perpetrators can easily cover their own tracks.

New South Wales Police have also been critical of the app’s processes, saying there is an email for them to contact, and then they wait for an answer. NSW Police say if this frustrating process doesn’t improve then they are prepared to find legislative ways to encourage the apps to co-operate more fully, and in a timely way.

Since these revelations were made public in a story by the ABC’s Four Corners programme, Tinder’s parent Company, Match Group has responded to criticism by posting a statement that says any deleted messages can be recovered if need be. It has also pledged to work more closely with Australian police to understand how it can “better explain the tools and resources we have dedicated to helping their efforts.  We also want to hear directly from these officials on ways to work together more seamlessly in the future.”

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.

Defences to aggravated sexual assault

A person must be found not guilty of aggravated sexual assault if there is evidence of a legal defence before the court, which the prosecution is unable to disprove beyond reasonable doubt.

Defences to the charge of aggravated sexual assault include:

Accused of a sexual offence?

If you have had accusations of a sexual offence levelled against you, it is important to seek advice and representation from an Accredited Specialist Criminal Law Firm that is vastly experienced in protecting the rights and reputation of clients, and having cases successfully dropped if charges are brought or thrown out of court if they proceed to a hearing or trial.

Sydney Criminal Lawyers has an exceptional track record of having charges withdrawn at an early stage due to deficiencies, inconsistencies and other flaws in the prosecution case, as well as winning hearings and trials when they proceed.

So call us anytime on (02) 9261 8881 and let our team of specialist criminal defence lawyers in Sydney help to ease your burden.

If you are going to court, we offer a free first conference at our offices in the Sydney City, Parramatta, Liverpool, Sydney metropolitan area, Newcastle and Wollongong, over the phone, or by Zoom, Skype or Facetime.

Authors

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.

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