Australia: The offence of aggravated sexual assault in New South Wales

Sydney pizza shop worker Ricardo Audish has been remanded in custody after a New South Wales District Court jury returned verdicts of guilty in just two hours for three counts of aggravated sexual assault.

Mr Audish's bail was refused despite his criminal defence lawyers submitting that their client needs to remain at liberty in order to attend a scheduled medical procedure in April 2021 for a pre-existing heart condition.

The sentencing hearing will take place in May 2021, at which time Mr Audish will learn the length of his inevitable prison sentence.

Each offence carries a maximum penalty of 20 years in prison.

The court heard that then 38-year old Mr Audish took part in the group sexual assault of a then-18-year-old woman at a restaurant in Sydney's south in October 2016.

On the evening in question, the young woman consented to sexual intercourse with her boyfriend in a toilet cubicle at the restaurant.

The boyfriend is said to have then told her "all the other boys want to have sex with you now", to which the young woman says she replied "hell no".

The court heard that as the woman was pulling up her underwear, another male entered and offered her a bong which contained cannabis.

She said she had two puffs of the bong before feeling dizzy and unsteady. Although admitting to have lost some of her memory of the night, she told the court she recalls leaning over a stack of chairs while Mr Audish had non-consensual sexual intercourse with her.

A stranger found the woman disorientated by the side of the road later that evening, and called paramedics.

The woman related her version of the events to hospital staff, saying "they all took turns in me."

A phone call intercepted by police revealed that Mr Audish asked the other men involved what they had told police, in order to "know what we are going to say".

Mr Audish originally denied being at the restaurant on the relevant evening, later admitting he was there. He also denied ever having sexual intercourse with the complainant; which was refuted by DNA evidence.

When the jury delivered its verdict, Mr Audish yelled "there's no evidence" and "police tried to hide the whole truth". He also called the complainant a "prostitute."

Three teenagers were also charged, and their cases are being heard in the closed Children's Court.

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.

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.

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:

• Self-defence,
• Duress, and
• Necessity.

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.