Sexual Offences
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Sexual Offences may include offences such as rape, sexual penetration of a minor, indecent assault, assault with intent to rape and possession of child pornography.
Given the sensitive nature of these charges it is important for client’s to receive clear, unbiased advice from experienced professionals who understand the confronting effect of the charges and the impact it has on a client’s reputation.
S38 of the Crimes Act 1958 states a maximum of 25 years imprisonment for rape.
Possible defences may include consent, lack of intent, no penetration, an identification or factual dispute.
Amad & Amad Lawyers can provide you with the best legal representation and preparation for these contested matters.
We can also assist clients in separating trials in relation to different complainants and explore evidence that can be lead about inconsistent behaviour with the complaint.
Rape
topCrimes Act 1958 - SECT 38
38. Rape
(1) A person must not commit rape.
(2) A person commits rape if-
(a) he or she intentionally sexually penetrates another person without that person's consent-
(i) while being aware that the person is not consenting or might not be consenting; or
(ii) while not giving any thought to whether the person is not consenting or might not be consenting; or
(b) after sexual penetration he or she does not withdraw from a person who is not consenting on becoming aware that the person is not consenting or might not be consenting.
(3) A person (the offender) also commits rape if he or she compels a person-
(a) to sexually penetrate the offender or another person, irrespective of whether the person being sexually penetrated consents to the act; or
(b) who has sexually penetrated the offender or another person, not to cease sexually penetrating the offender or that other person, irrespective of whether the person who has been sexually penetrated consents to the act.
(4) For the purposes of subsection (3), a person compels another person (the victim) to engage in a sexual act if the person compels the victim (by force or otherwise) to engage in that act-
(a) without the victim's consent; and
(b) while-
(i) being aware that the victim is not consenting or might not be consenting; or
(ii) not giving any thought to whether the victim is not consenting or might not be consenting.
Maximum Penalties in Victoria
Imprisonment for 25 years.
Sexual penetration of a minor
topCrimes Act 1958 - SECT 45
45. Sexual penetration of child under the age of 16
(1) A person who takes part in an act of sexual penetration with a child under the age of 16 is guilty of an indictable offence.
(2) A person who is guilty of an offence against subsection (1) is liable-
(a) if the court is satisfied beyond reasonable doubt that the child was, at the time of the offence, under the age of 10, to level 2 imprisonment (25 years maximum); or
(b) if the court is satisfied beyond reasonable doubt that the child was, at the time of the offence, aged between 10 and 16 and under the care, supervision or authority of the accused, to level 4 imprisonment (15 years maximum); or
(c) in any other case, to level 5 imprisonment (10 years maximum).
(3) Subsection (1) does not apply to an act of sexual penetration if-
(a) the child is aged between 10 and 16; and
(b) the persons taking part in the act are married to each other.
(4) Consent is not a defence to a charge under subsection (1) unless at the time of the alleged offence the child was aged 10 or older and-
(a) the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that the child was aged 16 or older; or
(b) the accused was not more than 2 years older than the child; or
(c) the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that he or she was married to the child.
(4A) If consent is relevant to a charge under subsection (1), the prosecution bears the burden of proving lack of consent.
(5) A circumstance of aggravation described in subsection (2) is not an element of an offence against subsection (1) but must be stated in the presentment.
(6) An accused who takes issue with a circumstance of aggravation described in subsection (2) and who wishes to have the matter determined on the trial may do so by pleading not guilty to the offence with which he or she is charged even if he or she does not take issue with any acts, facts, matters or circumstances relied upon by the prosecution to support a finding of guilt.
(7) A circumstance of aggravation described in subsection (2)-
(a) is to be determined by the jury if the accused pleads not guilty to the offence; and
(b) is to be determined by the trial judge if the accused pleads guilty to the offence.
(8) An offender who pleads not guilty to an offence against subsection (1) is to be taken to have pleaded guilty to the offence for the purposes of section 5(2)(e) of the Sentencing Act 1991 if-
(a) he or she-
(i) took issue with a circumstance of aggravation described in subsection (2); and
(ii) did not take issue with any acts, facts, matters or circumstances relied upon by the prosecution to support a finding of guilt; and
(b) the circumstance of aggravation is not proved.
(9) For the avoidance of doubt it is declared that it is the intention of the Parliament that an offence against subsection (1) is not an offence to which section 53(1) of the Magistrates' Court Act 1989 applies (indictable offences triable summarily) even though the offence is punishable by level 5 imprisonment where a circumstance of aggravation described in subsection (2) is not present.
Maximum Penalties in Victoria
Imprisonment for 10 - 25 years subject to the charge.
See also s48, Crimes Act 1958 for sexual penetration of 16 or 17 year old child.
Indecent Assault
topCrimes Act 1958 - SECT 39
39. Indecent assault
(1) A person must not commit indecent assault.
(2) A person commits indecent assault if he or she assaults another person in indecent circumstances-
(a) while being aware that the person is not consenting or might not be consenting; or
(b) while not giving any thought to whether the person is not consenting or might not be consenting.
Maximum Penalties in Victoria
Imprisonment for 10 years.
Assault with intent to rape
topCrimes Act 1958 - SECT 40
40. Assault with intent to rape
(1) A person must not assault or threaten to assault another person with intent to commit rape.
(2) In subsection (1), assault has the same meaning as in section 31(1).
(8B) Incest
Maximum Penalties in Victoria
Imprisonment for 10 years.
Possession of child pornography
topCrimes Act 1958 - SECT 70
70. Possession of child pornography
(1) A person who knowingly possesses child pornography is guilty of an indictable offence.
(2) It is a defence to a prosecution for an offence against subsection (1) to prove-
(a) in the case of-
(i) a film; or
(ii) a photograph contained in a publication; or
(iii) a computer game-
that at the time of the alleged offence the film, publication or computer game was classified other than RC or X or X 18+ or would, if classified, be classified other than RC or X or X 18+; or
(b) that the film, photograph, publication or computer game possesses artistic merit or is for a genuine medical, legal, scientific or educational purpose; or
(c) that the defendant believed on reasonable grounds that the minor was aged 18 years or older or that he or she was married to the minor; or
(d) that the defendant made the film or took the photograph or was given the film or photograph by the minor and that, at the time of making, taking or being given the film or photograph, the defendant was not more than 2 years older than the minor was or appeared to be; or
(e) that the minor or one of the minors depicted in the film or photograph
is the defendant.
(3) Despite subsection (2)(b), the defence of artistic merit cannot be relied on in a case where the prosecution proves that the minor was actually under the age of 18 years.
(4) Nothing in this section makes it an offence for-
(a) any member or officer of a law enforcement agency; or
(b) a person authorised in writing by the Chief Commissioner of Police assisting such a member or officer; or
(c) a person belonging to a class of persons authorised in writing by the Chief Commissioner of Police assisting such a member or officer-
to have child pornography in his or her possession in the exercise or performance of a power, function or duty conferred or imposed on the member or officer by or under this or any other Act or at common law.
Maximum Penalties in Victoria
Imprisonment for 5 years.
If you need legal help with any of the above legal matters from a qualified lawyer in Melbourne or in the State of Victoria then Amad Lawyers can help you.