SEXUAL ASSAULT QLD

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Sexual assault in Queensland is a common offence dealt with by the Queensland Courts. It is one of the less serious sexual offences the courts see. Both the Magistrates Court and the District Court can hear the charge. However, for the Magistrates Court to be able to deal with the charge, the following must apply:

  1. You are pleading guilty.
  2. There is no circumstance of aggravation.
  3. The complainant was at least 14 years of age.

 If you decide to plead not guilty the charge will be finalised in the District Court.

 

WHAT TO DO IF YOU HAVE BEEN ACCUSED OF SEXUAL ASSAULT IN BRISBANE?

 

If the police contact you regarding an alleged sexual assault, contact a Brisbane criminal lawyer straight away. You need to know your options and legal rights.

 

Our Brisbane sexual assault lawyers have the experience to support and guide you from the beginning to the end. We will achieve you the best outcome possible.

 

WHAT IS A SEXUAL ASSAULT IN BRISBANE?

 

There are 3 scenarios under Section 352 of the Queensland Criminal Code when a sexual assault will be committed. These are:

  1. You unlawfully and indecently assault another person.
  2. You procure another person without their consent to commit an act of gross indecency.
  3. You procure another person without their consent to witness an act of gross indecency by you or any other person.

 

Unlawfully and indecently assault another person

 

First, there needs to be an “assault”.

Section 245 of the Criminal Code provides a definition of assault.

(1) A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an assault.

(2) In this section—

applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.

 

Consent

 

Consent is defined in section 348 of the Criminal Code (Qld). This section says “consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent”.

 

The alleged victim’s consent must have been given freely and voluntarily. The law says the consent will not be freely and voluntarily given if it was obtained:

 

  1. By force; or
  2. By a threat or intimidation; or
  3. By fear of bodily harm; or
  4. By an exercise of authority; or
  5. by false and fraudulent representations about the nature or purpose of the act; or
  6. by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.

 

If any of the above are apply, then the alleged victim will not have given their consent freely or voluntarily.

 

The alleged victim must have had the cognitive capacity to give consent.

 

Unlawful

 

If there is an assault, the next question to ask is, was it “unlawful”?.

 

Section 246 of the Criminal Code provides when an assault is unlawful.

(1) An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.

 

(2) The application of force by one person to the person of another may be unlawful, although it is done with the consent of that other person.

 

Indecent

 

The assault must have been “indecent”. The Criminal Code doesn’t give us a definition of indecent. The Courts tell juries the word “indecent” is given its ordinary everyday meaning. It is what the community regards as indecent. It is what offends against currently accepted standards of decency. It must always be judged in light of the time, place and circumstances.

 

DOES THE ALLEGED VICTIM NEED TO SAY OR DO ANYTHING TO SHOW CONSENT IS NOT GIVEN?

 

The law (s348(3) Criminal Code (Qld)) says

“A person is not to be taken to give consent to an act only because the person does not, before or at the time the act is done, say or do anything to communicate that the person does not consent to the act.”

 

CAN CONSENT BE WITHDRAWN?

 

Yes.

The law says if consent is withdrawn by words or conduct and the act is done or continues, then the act is done or continues without consent. This means if the alleged victim agrees to sexual intercourse, but part way through indicates by words or some other way he or she no longer consents, then the consent is withdrawn. If the defendant continues with the assault, then this is deemed to be without the consent of the alleged victim.

 

WHAT IS THE SENTENCE FOR SEXUAL ASSAULT?

The maximum penalty for sexual assault in Queensland is 10 years imprisonment. The maximum increases to 14 years imprisonment if the indecent assault or act of gross indecency included bringing into contact any part of the genitalia or the anus of a person with any part of the mouth of a person.

 

The maximum imprisonment increases to life imprisonment if:

(a) immediately before, during, or immediately after, the offence, the offender is, or pretends to be, armed with a dangerous or offensive weapon, or is in company with any other person.

(b) the indecent assault includes the person who is assaulted penetrating the offender’s vagina, vulva or anus to any extent with a thing or a part of the person’s body that is not a penis; or

(c) the act of gross indecency includes the person who is procured by the offender penetrating the vagina, vulva or anus of the person who is procured or another person to any extent with a thing or a part of the body of the person who is procured that is not a penis.

 

To give you an idea of penalties the Courts has sentenced persons to, we have summarised some cases from the Queensland Court of Appeal and the District Court. These cases are only examples. Even if your case is very similar to any below, this does not mean you will receive the same penalty. No two cases are exactly alike. There are a wide variety of factors which go into the mix when a Court decides on the penalty they will sentence a person to. If you are charged with sexual assault and want to know what penalty you may receive you should get expert legal advice.  

 

R v Goodman [2016] QCA 56

 

Mr. Goodman was convicted after trial of 1 count of sexual assault. Mr. Goodman was sentenced to 3 months imprisonment and 18 months probation.

Mr. Goodman appealed to the Court of Appeal against his conviction.

The complainant drove to some shops and parked near a utility vehicle. When the complainant got out of her car she saw man (Mr. Goodman) looking at things in the back of his ute. The complainant and Mr. Goodman greeted each other. The complainant went and got a coffee and while at a group of shops saw Mr. Goodman looking at her. As the complainant was getting her coffee, she saw Mr. Goodman driving his ute out of the car park and waving at her.

 

The complainant got in her car and drove away from the shops. As she was driving she noticed Mr. Goodman following her in his ute. The complainant drove to the top of the driveway of her home. Mr. Goodman parked his car at the bottom of the driveway to the complainant’s home. The complainant’s housemate came out of the house. Mr. Goodman got out of his ute and started looking around it before driving away.

 

The complainant had to pick up her sister, so she left her house again. As she was driving not far from her home she saw Mr. Goodman in his ute.  Mr. Goodman was out of his ute and on the road.

 

Mr. Goodman waved the complainant down and she stopped because she thought she must have known him from somewhere. The complainant wound her car window down halfway. Mr. Goodman then put his arms on the window and said “geez, you’ve got nice tits.” Mr. Goodman then grabbed the complainant’s breasts over the top of her clothing and she told him to “get off”. Mr. Goodman said “I’d like to do things to you”. The complainant accelerated away and then stopped her car near a corner to try and record the registration details of Mr. Goodman’s ute in her phone. Mr. Goodman drove up beside her and pulled up in front of her. The complainant quickly drove off to a nearby store where she had previously worked and made a complaint to her former employer.

 

 

Andersen v Commissioner of Police [2020] QDC 23

 

Mr. Andersen pleaded guilty to one charge of sexual assault in the Maroochydore Magistrates Court. Mr. Andersen appealed his sentence to the District Court.

 

Mr. Andersen was originally sentenced to 12 months imprisonment to be suspended after serving three months. On appeal the Judge resentenced Mr. Andersen to 9 months imprisonment, to be suspended after 1 month and 23 days for an operational period of 18 months. At the time of the appeal Mr. Anderson had already served 1 month and 23 days in prison.

 

Mr. Andersen was 54 years old at the time of the offence, and 55 years old when he was sentenced. Mr. Andersen had a dated criminal history back to when he was in his mid 20s, which included entries for drunk driving, assaulting police, hindering police and using obscene language.

 

Mr. Andersen wrote a letter of apology to the complainant expressing remorse. He also wrote a letter to the Court and said he had no memory of committing the offence which he attributed to the alcohol he drank that night.

 

The complainant was a 27 year old female.

 

Mr. Andersen and the complainant did not know each other. However, Mr. Andersen may have known some members of the complainant’s family.

 

The offence occurred in the early hours of the morning at a bar at the Goondiwindi Show. Mr. Andersen approached the complainant and grabbed her on the arm hard causing it to hurt. Mr. Andersen then placed his arm around the complainant’s shoulder trying to convince her to talk to him. The complainant pushed Mr. Andersen away and said, ‘Fucking get away.’

Ten minutes later Mr. Andersen stood in front of the complainant. The complaiannt then went and stood next to her husband. Thirty seconds later the complainant saw Mr. Andersen moving behind her. Mr. Andersen placed his hand between the complainant’s legs and rubbed his fingers across her vagina. He pressed into her vagina through her clothing, causing immediate pain. The complainant felt Mr. Andersen’s erect penis against her backside. He  leaned in to the complainant while holding her vagina and said “So where are we going baby?”. The complainant jumped away and hid behind friends.  Security guards detained Mr. Andersen until police arrived.

 

R v Caulfield [2012] QCA 204

 

Mr. Caulfield was convicted after a trial in the District Court of 1 count of common assault and 2 counts of indecent assault (now sexual assault).

 

Mr. Caulfield was sentenced as follows:

 

  • Common Assault- 1 month imprisonment, wholly suspended with an operational period of 2 years.
  • Indecent assault- 6 months imprisonment, wholly suspended with an operational period of 2 years.
  • Indecent assault- 6 months imprisonment, suspended as at 18 September 2012 (which was 3 months less 1 day) with an operational period of two years.

 

Mr. Caulfield appealed to the Queensland Court of Appeal against his conviction, and  his sentence in relation to the second indecent assualt.

 

The Court of Appeal dismissed Mr. Caulfield’s appeal against conviction and sentence. In relation to sentence, the Court said the sentence imposed was not unjust or unreasonable when you take into account:

  • The disparity in the ages of Mr. Caulfield and the complainant.
  • Caulfield’s position of trust in fulfilling a quasi-paternal role.
  • Caulfield’s persistence, despite the complainant’s oral and physical resistance.

 

The complainant was a 16-year-old student living with Mr. Caulfield and his wife. Mr. Caulfield was 52 years old.

 

The complainant who had been working at a supermarket arrived home. Mr. Caulfield’s wife was not home at the time. A male neighbour of Mr. Caulfield and Mr. Caulfield were in the lounge room of the house with the complainant. The neighbour rubbed the complainant’s hair a few times. The complainant went upstairs, changed out of her work clothes and into tracksuit pants, a long sleeved top and a jacket with a hood.

 

After some time, the complainant went to a shed in the yard of the house with Mr. Caulfield who got some bottles of beer. On their way back to the house, they met the neighbour at the gate. Mr. Caulfield and the neighbour commented on the jeans the complainant had worn the previous day. On 2 or 3 occasions Mr. Caulfield patted and grabbed the complainant’s buttocks (common assault) and she walked off. When the complainant and Mr. Caulfield and the neighbour went back to the lounge room, the neighbour engaged in sexual banter and provided the complainant with a small quantity of pre-mixed bourbon and cola.

There was some discussion in the kitchen between the three of them about the complainant sending text messages on her mobile phone. Mr. Caulfield and the neighbour attempted to locate the mobile phone on the complainant’s person. Mr. Caulfield kept patting the complainant trying to see if her phone was there. Mr. Caulfield patted the complainant’s chest, but “not specifically her breasts.

 

After dinner, before the complainant left the kitchen to have a shower and dress for bed, the neighbour said he would wash the complainant’s back. Mr. Caulfield said “I’d come and wash more than your back”. After showering, the complainant dressed in a singlet, bra, her long top, pyjama shorts and a dressing gown and got into bed. After the neighbour had left, Mr. Caulfield went into the complainant’s bedroom and got into bed with her and kissed her on the lips. She pushed him away, saying, “Your wife’s going to be home”. Mr. Caulfield then “started to kiss the complainant’s neck a couple of times” (first indecent assault).

 

The complainant told Mr. Caulfield to get out. Mr. Caulfield left, but kept coming back.  Mr. Caulfield went back into the complainant’s room and got under the blankets and tried to touch her  inappropriately on her vagina. The complainant kept moving Mr. Caulfield’s hand away and told him his wife was going to be home. Mr. Caulfield managed to insert a hand up the leg of the complainant’s pyjama shorts and underwear and touched her for “a couple of seconds” on  her genitals. The complainant, at the time, was also saying, “Get out. Just, get out”.

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