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Charged with sexual assault? Here’s what you need to know.

In Australia, sexual offences can result in severe consequences for the offender and the speed at which court proceedings occur. This applies in Queensland where sexual offences incur punishments in accordance with the Criminal Code Act 1899:

s. 352 Sexual Assault (Criminal Code Queensland)

(1) Any person who unlawfully and indecently assaults another person, or procures another person, without their consent, to commit an act of gross indecency or to witness an act of gross indecency by the person or any other person is guilty of a crime.

What constitutes sexual assault?
To be charged with a sexual offence in Queensland, a person must unlawfully and indecently assault another person. ‘Indecent’ is defined as having a sexual connotation or doing an act for sexual gratification.

Actions that constitute sexual assault are broad, but all include that the other party does not consent. Specific acts are defined as:

  1. Penetrative sexual acts can also constitute a sexual assault, though almost always give rise to aggravated sexual assault or rape charges which are punished more severely under Queensland law.

 

Punishments for sexual assault

In Queensland, if you are convicted of sexual assault, then the court could impose one of the following penalties:

The maximum penalty is 10 years imprisonment. However, the punishment for sexual offences varies depending on the type of offence, what the prosecution can prove against the offender, the circumstances of the matter and the background of the Defendant.

There are also additional factors which may cause a penalty to increase. For instance, if the offender’s mouth touches the complainant’s genitals or anus, the penalty increases to 14 years imprisonment. In addition, if the offence is committed in company, whilst armed or if the vagina or anus of the complainant is penetrated, the penalty increases to life imprisonment.

What should I do if I am arrested by the police for a sexual offence?
If you are arrested, you are still presumed innocent. However, it is important to immediately seek legal advice as anything you say or do during the early stages of the criminal process can drastically impact the outcome.

You should not speak to police regarding the nature of the offence without obtaining advice from a lawyer first. Provide your personal details, as well as physical identification such as your fingerprints if you have been served with a relevant notice.

If you have spoken to the complainant since the alleged incident occurred, ensure to inform your lawyer. If you haven’t spoken to the complainant, be aware that police officers often use a strategy known as pretext phone calls, in which the complainant will call the alleged offender under police supervision and attempt to extract statements as evidence.

What happens in a trial?
When going to trial for sexual assault, there are many matters which need to be considered and approached with great caution. Sexual assault carries a stigma which taints a jury and removes their impartiality, allowing prejudices to guide their verdict.

To convict someone of sexual assault, the prosecution must prove each of the following matters beyond a reasonable doubt:


What can McMillan Criminal Law do for you?
In a trial, prosecutors rely heavily on the testimony of ‘preliminary complaint’ witnesses to fortify the evidence of the alleged victim. These are witnesses that the alleged victim has complained to after the incident. Many lawyers fail to take advantage of exploring the evidence of these witnesses at committal and lose an important forensic advantage at trial.

McMillan adopts a careful approach to determine whether there is value in testing the evidence of ‘preliminary complaint’ witnesses at committal. By obtaining versions of testimony through careful cross-examination at committal, this can raise questions and doubt about the validity of an alleged victim’s recollection at trial.

McMIllan works to find and exploit weaknesses in alleged victim credibility. One method is by acquiring records from government departments (e.g. the Department of Child Safety, or Youth and Women) to determine if there are inconsistencies in the complaints. Successful searches can yield devastating results on a prosecutor’s case.

What happens with sentencing for sexual assault?
Statistically, those convicted of sexual offending end up serving a period of imprisonment, but this is not inevitable. At McMillan, our approach recognises the subtleties of sentencing. For example, we find and disclose a demonstration of the client’s remorse, while many of our competitors simply assert that from the bar table at court or hand up an apology written by the accused. This method ensures the court can proceed to sentence on the basis that the client is actually remorseful and his or her sentence should be adjusted favourably – see discussion in Alvares v R; Farache v R [2011] NSWCCA 33 at [57]. 

Similarly, while our competitors often habitually and blindly have their clients psychologically assessed prior to sentencing, McMIllan ensures that any assessment performed not only examines mental composition, but also provides a basis for the court to make favourable findings about its mandatory considerations, such as the need to protect the community and the prospects of rehabilitation.  

For these reasons, a great many of McMIllan's clients avoid a period of actual imprisonment when sentenced for sexual offending.

Will sexual assualt show up on a criminal history check?
More than most types of offences, disclosing you are a sex offender can have devastating consequences. Regrettably, many criminal law firms seem resigned to this outcome if their client is likely to be convicted. However, it is not inevitable that a conviction must be recorded against you.

The following[2020] QDC 63 is an example of a sexual offence case where the Crown tried to convince the court that not only should the client be imprisoned, but additionally a conviction should be recorded against her name.In the end, McMIllan prevailed and persuaded the court that she should not be imprisoned and, given the features of the case McMIllan was able to identify and highlight, a conviction was not recorded against her.

How to deal with multiple complainants alleging multiple charges?
To dramatically increase the prospect of a jury finding you guilty, the Crown often puts a number of individual charges with different complainants onto one indictment. This way, the jury will hear multiple allegations of sexual offences on more than one victim.

To counteract this, McMIllan closely examines this scenario to see if it is possible to separate indictments to prevent a jury from hearing multiple claims. Doing this dramatically improves our client’s chances of acquittal.

Severing charges on indictment is a complex area of law, and for obvious reasons the Crown fights hard to keep them together. Unfortunately, a many law firms do not understand the complexity involved in severing an indictment and leave this problem until the first day of jury trial to consider (or don’t consider it at all) which is too late. 

A recent example of McMIllan's success in this endeavour is R v DJM [2020] QDCPR 19. Although there were two trials rather than one, a jury only heard one complaint make allegations about our client, making it more likely to establish reasonable doubt against the single complainant.

Legal representation for sexual assault
If you are charged with sexual assault, success depends on the skill and courage of your legal representation. Contact McMillan Criminal Law for experienced representation throughout the Brisbane area, Gold Coast, Tweed Heads and northern New South Wales today.

 

 

 
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