Sexual Penetration Without Consent
Lawyers & Barristers

It is a defence to prove that the alleged victim consented to the act of penetration. Often Accused persons agree that sexual penetration occurred but deny that it was non-consensual (this is not relevant where the victim is under the age of 16).

A person may plead Insanity in rare circumstances where is it independently assessed that at the time of offending and commencement of proceedings, they are unable to enter a plea or recognise the offending conduct. In the event that someone is assessed to be ‘insane’ they are generally admitted into psychiatric and mental facilities for indeterminable periods of time.

It is not a defence for the Accused to say there were intoxicated at the time they sexually penetrated the alleged victim and therefore did not intend to sexually penetrate them without consent. Intent is not an element of this offence.

A person who is found guilty of sexual penetration without consent may be liable to imprisonment for 14 years.

A person who is found guilty of sexual penetration without consent, in circumstances of aggravation, may be liable to imprisonment for 20 years.

A prison sentence is the most severe punishment that can be handed down when you are convicted of a crime. In some circumstances, it can also be accompanied by a hefty fine.

If you are sentenced to prison in court, you will be taken immediately to a holding cell where you will be processed and wait to be transported to the appropriate prison facility.

You may be handed a conditional suspended imprisonment order if found guilty of sexual penetration without consent.

A suspended sentence is a prison sentence that is not put into immediate effect. This means that if sentenced to a suspended sentence, you are not required to go to prison and you are released to live in the community. If you commit a crime while on a suspended sentence, you will be sent to prison to serve the sentence.

The standard conditions and primary requirements include:

1. Supervision – The offender will be supervised so that progress can be monitored and regular counselling provided. The community corrections officer will determine how often an offender reports. That may be once a week or, in some cases, more frequently
2. Program – The purpose of a program is to make sure the offender's criminal behaviour is curbed by treatment and assessment. It may be treatment for substance abuse, or a requirement to attend an educational, vocational or personal development program. The court can also determine that the offender will live at a specific location so they can attend the program it believes will help
3. Curfew – A curfew may be imposed for up to six months to restrict the movements of offenders in periods when there is a high risk of them reoffending. It may apply between two and 12 hours in any one day, with offenders also liable to electronic monitoring, at the direction of a community corrections officer.

The court may impose a suspended sentence if found guilty of sexual penetration without consent.

A suspended sentence is a prison sentence that is not put into immediate effect. This means that if sentenced to a suspended sentence, you are not required to go to prison and you are released to live in the community. If you commit a crime while on a suspended sentence, you will be sent to prison to serve the sentence.

An Intensive Supervision Order (ISO) is similar to a community based order but is subject to more stringent conditions. A conviction is recorded against each person placed under an ISO.

For each ISO, a supervision condition is mandatory. There are three other primary requirements, which a court may impose in any combination it wishes. They are:

1. Program - The program component assesses personal factors which may contribute to the offender's criminal behaviour. It encourages the offender to recognise and take steps to address those factors. Offenders must undergo assessment and appropriate treatment, attend specified programs, or live at a particular place during assessment and treatment.
2. Community Service - An offender may be ordered to perform between 40 and 240 hours of unpaid community work. At least 12 hours must be worked each week. Community service work must be carried out with an approved non-profit agency or project, such as the Salvation Army, Meals on Wheels, or local council beautification schemes.
3. Curfew - A curfew may be imposed for up to six months to restrict the movements of offenders in periods when there is a high risk of them reoffending. It may apply between two and 12 hours in any one day, with offenders also liable to electronic monitoring, at the direction of a community corrections officer.

Whenever an ISO is imposed, an offender must report to a community corrections officer within 72 hours of the sentence being handed down; notify any change of address or employment; not leave the State without permission; and comply with all other conditions of the order.

Offenders who fail to abide by the conditions or who commit an offence, will be returned to court to be dealt with. If the order is successfully completed with no breaches, the offender will have a record, but will not have served time in prison.

A community-based order gives offenders the opportunity to put a stop to criminal behaviour. It provides the courts with options for managing offenders in the community. Not all offences are so serious that custodial sentences are the best way to protect the community.

Community based orders provides offenders with an opportunity to undergo treatment or take part in educational, vocational or personal development programs.

In some cases, a community-based order may involve a requirement to perform a community service - and that means offenders have the opportunity to help the community as well as helping themselves. Management of the Order is the responsibility of Department staff.

The court also has the power to make a "spent conviction" order in conjunction with the community-based order. This means that once the period of the order is successfully completed, the offender is not required to reveal the details of the conviction, except in exceptional circumstances.

A community-based order means offenders can stay with their families and friends, continue in their current jobs, or continue to look for work. It means that their lives can continue as normally as possible, while meeting the terms of the order.

There are three basic requirements of a community-based order, and the court will include at least one of them. However, the court also has the power to impose two or even three of the requirements where the judge or magistrate sees fit.

1. Supervision - The offender will be supervised so that progress can be monitored and regular counselling provided. The community corrections officer will determine how often an offender reports. That may be once a week or, in some cases, more frequently
2. A Program - The purpose of a program is to make sure the offender's criminal behaviour is curbed by treatment and assessment. It may be treatment for substance abuse, or a requirement to attend an educational, vocational or personal development program. The court can also determine that the offender will live at a specific location so they can attend the program it believes will help.
3. Community Service - If community service is part of a community-based order, the number of hours to be worked will be between 40 and 120 hours. At least 12 of those hours must be worked in any seven-day period. Community service may involve working with an organisation or an offender may be required to join a group of other offenders working on outdoor community projects.

If a community-based order is breached or another offence is committed during the term of the order, the community corrections officer will prepare a "breach report" and the case will come before the court again. Offenders may be re-sentenced on the original offences and may not receive the benefit of a community based option again. Any other offences will also be dealt with and may attract an additional sentence.

When the term of the order has finished with no breaches, the sentence is complete. If the court has determined that a "spent conviction" order is appropriate, no conviction will be recorded against the offender's name when the sentence is successfully completed. Otherwise, the offender will have a criminal record.

You may be sentenced to a conditional release order if found guilty of a sexual penetration without consent

A conditional release order allows an offender to go about their daily lives under certain conditions.

Offenders can be released with or without a surety, on conditions the court decides are needed to ensure the good behaviour of the offender. A surety is someone who pledges or deposits money with the court as a sort of guarantee that the offender will not reoffend.

If the offender does end up back before the court, the money is not returned, but forfeited to the court.

When making a conditional release order, the court may also issue a spent conviction order. If an offender does not reoffend under a conditional release order, their spent conviction order allows them to no have to disclose the conviction (except in special circumstances).

A conditional release order may include any condition or demand considered necessary to secure the good behaviour of the offender — other than supervision by a Community Corrections Officer.

An offender might be asked to return to court at any time during a conditional release order, to confirm they are meeting the conditions of the order.

If an offender does breach the order by not abiding by the conditions or by reoffending, they can be fined or dealt with again. If they are dealt with again, the court will consider the degree to which they have complied with the order. An offender who has breached a conditional release order may also lose the opportunity of a spent conviction order.

A fine is an amount of money that a judge, magistrate or justice of the peace in court may order you to pay as a penalty for committing an offence. A fine may be the whole sentence (penalty) or just part of the sentence you receive for the offence. You may be handed a fine by a magistrate when found guilty of sexual penetration without consent.

The maximum fine for a sexual penetration without consent is: $18,000.00

Where there are circumstances of aggravation the maximum fine is $36,000.00.

Your solicitor can assist you in terms of ensuring you recieve the lowest fine possible through a process of mitigation.

If a court imposes a fine on you, you have 28 days to pay that fine and any court costs that were also ordered to be paid. The total amount of fine and costs is referred to as your “fine” when it comes to payment and enforcement of payment.

If you are found not guilty, the charge will be dismissed, there will be no penalties and you are free to go.

If you have incurred any specific costs associated with your trial, including your legal fees, your legal team can ask the court to consider them. The court may order that you be reimbursed.

Being found not guilty means that no conviction will be recorded on your criminal record.

Our lawyers will relentlessly fight to have your charges dropped if it is clear that there is a suitable legal route to do so. For clients this is the best possible outcome.

Only the prosecution can drop charges, against popular belief that it is possible for the victim to do so.

For this to occur, it's vital you seek legal advice urgently to allow your lawyer enough time to take steps to have charges dropped.