Sexual Assault Charges – Withdrawn – Melbourne Magistrates Court
Sexual Assault Charges in Victoria:
- Rape x1
- Sexual assault x 1
- Unlawful assault (common assault) x 1
Sexual Assault Charges Penalties:
The offence of rape has always been considered one of the most serious criminal offences in Australia. Section 38 of the Crimes Act 1958 (Vic) sets out the maximum penalty, being 25 years imprisonment. The offence also carries a “standard sentence” being 10 years. A “standard sentence” means that the median sentence is 10 years, when taking into account the most serious and the least serious examples of the charge. This works as an initial guideline to judges as to what sentence should be imposed before taking anything else into account. It is important to be aware that standard sentencing only applies in the County Court and Supreme Courts. In relation to sexual assault (not rape) it is possible to make a summary jurisdiction application to keep the matter in the Magistrates Court. This is one way to avoid the standard sentencing provisions.
The offence of rape requires the following to be proven beyond reasonable doubt:
- That an individual intentionally sexually penetrated another person;
- That the other person did not consent to being sexually penetrated;
- That the individual was aware, or should have reasonably been aware, that the other person was not consenting to being sexually penetrated.
Sexual assault carries a maximum of 10 years’ imprisonment and is set out under s40 of the Crimes Act 1958 (Vic). Sexual assault in Victoria is a sexual touching of another, in circumstances where the person being touched is not consenting. The offence is similar to rape, with the primary difference being that the Prosecution do not need to prove any penetration occurred. Specifically:
- An individual touched another person;
- The touching was sexual in nature;
- The other person was not consenting and the individual knew, or should have reasonably known, that the other person was not consenting. See here for a breakdown of the elements of the charge of sexual assault
Unlawful assault is a summary offence that carries a maximum of three months’ imprisonment and the Prosecution is only required to prove that the accused made some offensive action, whether verbal or physical, that the victim did not consent to.
Sexual Assault Charges Facts:
Our client was a 47-year-old male at the time of the offence. He was charged with the rape and sexual assault of an 18-year-old boarder who was living with him at the time. The boarder stated she left the property as a result of the rape.
Our client was arrested and interviewed where, following advice, he agreed to participate and answer the questions that Police asked of him. Our client denied having ever touched the complainant in any way without her consent and never in a sexual manner. He gave a concise explanation as to why the complainant left his property.
The Police informant in the matter based their charges on statements from the complainant and witnesses, to whom the complainant disclosed the conduct. Nobody other than our client and the complainant were in the room at the time the alleged conduct occurred.
Our client’s goal was to successfully fight the charges in Court and he instructed our offices to contest them. To contest charges such as this is a long an arduous process, involving numerous Court appearances and in-depth preparation and analysis by legal representatives.
Court Procedure in Indictable Matters:
The courts in Victoria have various jurisdictional limits in relation to what sort of crimes they can hear and determine. All charges begin in the Magistrates’ Court and if they are too serious to be determined summarily they are escalated to either the County Court or the Supreme Court of Victoria. In those instances, the first court hearing is called a filing hearing.
The filing hearing is an administrative court date whereby the Court sets a timeline of how the matter is to proceed. Specifically, when the committal mention is to take place and when the brief of evidence is to be provided to our client and his solicitors.
Once the brief of evidence is served, Prosecution and Defence must update the Court at a committal mention on how the matter is to proceed. This will include how our client pleads and if witnesses will be required to give evidence prior to asking our client to stand trial.
Given our client’s instructions, we indicated to the Court that the matter was being contested, and we filed a ‘form 32’. This document set out our leave application to cross examine witnesses, including the complainant. We also requested all the pre-trial disclosure associated with the investigation. This material is always very important and often reveals important information relevant to cross examination of the witnesses.
Sexual Assault Charges Result:
Following our filing of the document to the Prosecution, they advised they would be withdrawing all charges against our client at the next court date. Shortly thereafter, they notified the Court and all charges against our client were struck out.
This was obviously a fantastic result for our client as the whole committal and trial process was avoided. Our client initially thought that his options were limited given his charges, and he was grateful that we were able to secure him the opportunity of avoiding such a long and stressful process.
It is important to note that by our client following pre-interview advice, participating in an interview with Police and denying the offences, the Prosecution had his version of events to compare with that of the victim. It also meant that our client would not need to provide viva voce evidence if the matter had proceeded to trial. There is a possibility that if our client had provided a “no comment” interview to Police, they would not have withdrawn the charges at such an early stage. This highlights the importance of engaging experienced sex offence lawyers at an early stage.
What should be remembered about this case study is that every case is different. Some clients should provide a version of events and some clients absolutely should not. What you should do is a question that can only be answered once you have told your story to an experienced criminal lawyer. If you are potentially going to be charged or have been charged with sexual offences, then you should call our office to have a sit down with one of our experienced criminal lawyers today.
