What are circumstances of aggravation?
In addition to the elements of ‘sexual assault,’ the prosecution must prove at least one ‘circumstance of aggravation.’ A circumstance of aggravation is some additional factor which makes the offence more serious.
Under the law, there are nine possible ‘circumstances of aggravation’:
1. That you intentionally or recklessly inflicted actual bodily harm upon the other person:
Actual bodily harm refers to harm that has some form of lasting impact – but it doesn’t have to be permanent.
Examples of actual bodily harm include bruises or scratches, and can include emotional harm where there is evidence of serious, lasting psychiatric harm.
2. That you made threats to the other person to use a weapon or instrument:
Threats to use a weapon can include verbal threats, as well as ‘physical’ threats such as showing the alleged victim a knife or pointing a gun at them.
‘Weapons’ or ‘instruments’ can refer to a wide range of objects, including guns (loaded or unloaded), knives, syringes, baseball bats and so on.
The court will look at the threat from the perspective of the victim so that a ‘threat’ can be made out even if the weapon could not actually cause harm – e.g. an unloaded gun.
3. Two or more people were present at the time of the offence:
The prosecution must show that there was at least one other person physically present at the time of the offence, and that they shared a common purpose with you.
The court will consider the effect of the group as a whole in committing the act or intimidating the complainant.
It won’t be enough to show that the other person participated in the offence without being physically present – e.g. where someone acted as a lookout or assisted in planning the offence.
4. The complainant was under 16 years of age
5. You were in a position of authority over the complainant (such as where you were a teacher or carer):
This involves cases where the complainant was under your care, supervision or authority, for example, where you are the complainant’s carer, baby-sitter, teacher, or even an employer.
6. The complainant had a serious cognitive impairment:
A ‘cognitive impairment’ refers to cases where the complainant had ‘below average intellectual function,’ which meant that they required assistance and supervision with daily activities.
Examples of mental disabilities include developmental disorders, neurological disorders, dementia, and severe mental illnesses or brain injuries.
7. The complainant had a serious physical disability:
A ‘serious physical disability’ refers to a physical impairment or defect which may arise from an accident or condition at birth and affects the complainant’s quality of life.
8. You committed a ‘break and enter’:
The prosecution must prove that you committed a ‘break and enter’ with the intention to commit the offence or any other serious offence. You can see our page on ‘break and enter’ for more information on this.
9. The complainant was ‘deprived of their liberty’ before or after the offence:
This involves confining or detaining someone against their will.
What penalties could I face?
The maximum penalty for aggravated sexual assault is 20 years imprisonment.
There is also a standard non-parole period of 10 years, which means that the judge will look at 10 years as a starting point when determining your sentence.
However, bear in mind that these are maximum penalties only – they are reserved for the most serious offences.
In fact, while the average sentence is currently 7 years, with a non-parole period of 4 years – meaning that 4 years is the time actually spent in prison.
While these penalties may seem harsh, getting a specialist criminal defence lawyer on your side is your key to ensuring the best possible outcome.
At Sydney Criminal Lawyers®, we have a long history of defending serious sexual assault matters and in many cases we’ve been able to have charges dismissed altogether by raising a valid defence.
So get the best lawyers on your side now – call us on our 24 hour hotline (02) 9261 8881 and arrange your first free appointment to discuss your case today!
