The immediate background to this paper, which discusses the offence of
aggravated sexual assault committed in company, is the controversy over the
sentence handed down in the District Court, at Sydney, on 23 August 2001 in the
case of
Regina v AEM (jnr) & AEM (snr) & KEM. In response to
that decision, on 4 September the Government introduced the Crimes Amendment
(Aggravated Sexual Assault in Company) Bill 2001 into the Legislative Assembly.
The main findings of this paper are as follows:
- the Crimes Amendment (Aggravated Sexual Assault in Company)
Bill 2001 proposes a new offence of aggravated sexual assault in company
carrying a maximum penalty of life imprisonment. A new s 61JA would be inserted
into the Crimes Act 1900 for this purpose, which would operate in
addition to the current s 61J (2)(c) of that Act (pages 1-3);
- the word 'rape' has not featured in the statutory offences
since 1981. Instead, the Crimes Act 1900 identifies various types of
sexual assault (page 4);
- it follows that there is no offence exclusively punishing 'gang
rape'. Committing a sexual assault in company is a species of aggravated sexual
assault under s 61J of the Crimes Act. Circumstances of aggravation are
outlined in s 61J (2) (page 4);
- to understand aggravated sexual assault it is also important to
examine the elementary offence of sexual intercourse without consent, at s 61I
(page 4);
- the legislative history of sexual offences reflects an
increasing tendency to categorise conduct into specific subcategories with
matching maximum penalties. This trend dates back to the Crimes (Sexual
Assault) Amendment Act 1981 which abolished the crime of rape, established
new graded offences and extended the definition of sexual intercourse (page 8);
- prior to 1981 the crime of rape had carried a maximum penalty
of life imprisonment. Statistics showed that: this life penalty was not being
used; it could deter victims from proceeding with their complaint; and its
magnitude deterred alleged offenders from pleading guilty. The life penalty was
replaced by a sliding scale of maximum penalties, ranging from 20 years to 2
years (pages 8-10);
- in 1987 the aggravated circumstance of being 'in company' was
added to s 61I, with a maximum penalty of penal servitude for between 10 and 14
years depending on the age of the victim and whether the offender was in a
position of authority (pages 10-11);
- the present two-tiered offence structure for sexual offences
was introduced in 1991. At the same time the offence of aggravated sexual
intercourse without consent was created with a maximum penalty of 20 years
(page 12);
- the decision in Regina v AEM (jnr) & AEM (snr) &
KEM was handed down in the District Court of NSW on 23 August 2001. The
offenders were three male youths, the victims were two 16 year old girls (page
13);
- the sentences imposed on the offenders resulted in massive
media controversy, with the debate focusing around: the functioning of the
criminal justice system, including perceived leniency of sentences handed down
by the NSW judiciary; judicial discretion and the role of victims' impact
statements; and the relationship between ethnicity and crime (page 18);
- conclusions are hard to draw from the reported cases on
aggravated sexual assault in company (s 61J (2)(c), Crimes Act).
However, they suggest that actual sentences of imprisonment for more than 10
years are very rare. They are reserved for the worst cases involving multiple
offences, of which R v Colby is an instance (page 37);
- the Judicial Information Research System (JIRS) statistics
confirm that the maximum penalties are rarely imposed in sexual assault and
aggravated sexual assault cases (page 42);
- at present there is no guideline judgment on any sexual offence
in NSW (page 43);
- a guideline judgment on rape was issued by the English Court of
Appeal (Criminal Division) in R v Billam (1986) Cr App R 347; (1986) 1
All ER 985. Lord Lane CJ pronounced numerous categories of offences,
accompanied by suggested starting points for custodial sentences, including a
starting point of 8 years where 2 or more adult offenders act together (page
45);
- often a contentious aspect of this area of law relates to the
sentencing of juvenile offenders. In Regina v AEM (jnr) & AEM (snr)
& KEM two of the offenders were juveniles and the sentencing judge had
to determine whether to deal with them as adults 'according to law', or under
the more lenient children's regime of the Children (Criminal Proceedings)
Act 1987 (page 47);
- when a court sentences a person under 21 to a term of
imprisonment for an indictable offence, the court may direct that the whole or
part of the term be served in a juvenile detention centre. However, the
relevant Minister has the power to override such a direction, which means that
a person serving their sentence in a detention centre can be transferred to an
adult prison (pages 51-52);
- the law respecting the sentencing of juveniles is governed by a
complex network of provisions in a plethora of statutes. There may be a case
for consolidating these provisions in a single Act dealing with the sentencing
of juveniles (page 52); and
- on 6 September 2001 it was announced that the DPP is to appeal
the sentences handed down in Regina v AEM (jnr) & AEM (snr) &
KEM. It was also announced that the Crown appeals will be heard in
conjunction with the Attorney General's application for a guideline judgment,
advice for which has now been finalised by the Crown Advocate. It is reported
that the guideline application will apply to the offences of sexual assault and
aggravated sexual assault (page 53).
