Case facts

The victim or complainant was a 15 year old girl and a family friend of our client. They were at her house one day when she stated that she had a sore leg from playing volleyball. The offender offered to massage her leg. Whist massaging her legs he accidentally touched her on the genital area on the outside of her clothing. The offender then placed his hand on the inside of the complainant’s shorts used his finger to penetrate her vagina for a few seconds. The offender stopped, removed his finger and apologized to the complainant. It was the fact of penetration of the vulva into the vagina that amounted to sexual intercourse rather than indecent assault.

Three weeks later the offender told the complainant’s brother what he had done and apologized to the complainant and her brother. The complainant told a friend at school what had happened and the school principal was notified. The principal informed police who then made contact with our client – a young man over the age of 18.

The offender voluntarily attended Penrith Police station for an interview (ERISP) and made full admissions to the actus reus or physical acts of the offence. However, he believed at the time that there was implied consent.


Police charges

Our client was originally charged with aggravated sexual assault pursuant to section 61J of the Crimes Act 1900 (NSW). The potential penalties include imprisonment for up to 20 years. The circumstance of aggravation was the fact that the victim was under the age of 16 at the time of the offending conduct. This type of offence is strictly indictable and must be ultimately dealt with in the District Court, though it starts in the Local Court for the service of the brief of evidence and committal process.


Negotiations with the DPP and the offence of digital penetration

The real issue in this case was whether or not there was implied or actual consent to the act of sexual intercourse. Digital penetration of the vagina constitutes sexual intercourse by definition. It need not be penile vaginal penetration and can include penetration of the anus, fellatio or cunnilingus. It is still an offence to have sexual intercourse with a person under the age of 16, whether or not they consent to the sexual act. The age of the complainant has a direct bearing on which charge is appropriate. The issue of consent also has a direct bearing on what is the appropriate charge.

After a careful review of the brief of evidence, we formed the view that the offender was likely to be found not guilty of the aggravated sexual assault if the matter went to jury trial because the prosecution could not prove a lack of consent of the complainant. Pursuant to section 77 of the Crimes Act, the consent of the child or other person to whom the charge relates shall be no defence to a number of specified offences under the legislation, including section 66C(3) of the Crimes Act – which sets out that any person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years is liable to imprisonment for 10 years. The fact that our client had sexual intercourse with the 15 year old girl therefore meant that he was guilty of an offence under section 66C(3).

It may seem unusual, however an offence under section 66C(3) is a Table 1 offence under the Criminal Procedure Act 1986 (NSW) and is dealt with in the Local Court unless an election is made for a criminal trial or jury trial on indictment. The maximum penalty if dealt with summarily is two years imprisonment. Representations were made with the Director of Public Prosecutions office to withdraw the charge of aggravated sexual assault and lay the fresh charge of sexual intercourse with a child between 14 and 16 to be dealt with in the Local Court.


Sentencing proceedings

Our plea bargain was successful. In preparation for sentence we sought a psychological report. Part of the reasoning for this was to demonstrate to the Local Court magistrate that the offender was not a person who was likely to reoffend. The report and some excellent character references were tendered. Lengthy submissions were made for the plea in mitigation. These included that there was no exploitation of the complainant’s age and no evidence of grooming or preying on the victim. The penetration was very limited, brief, and digital rather than penile. The actions were impulsive and the offender voluntarily ceased the intercourse on his own accord. He pleaded guilty at an early opportunity, had no criminal convictions or criminal record, had good prospects of rehabilitation and a supportive family support network and was genuinely remorseful for his actions – apparent by his early apology.


The result

It is indeed an exceptional case where a person guilty of having sexual intercourse with a child under 16 is sentenced to something other than full time imprisonment. This was such a case. The magistrate agreed with the submissions and ordered the offender to enter into a section 9 good behaviour bond and fined him the sum of $800 under the Crimes (Sentencing Procedure) Act.



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