Rape Reduced to Sexual Assault

Legal Argument:                        Rape Reduced to Sexual Assault

Court:                                            Southport District Court

Solicitor:                                       Mark Williams

Criminal Negotiations:

Our client was charged with rape. He was in the transport industry and the complainant was a passenger. The police charged him with raping the complainant.  Our client was a non-citizen with troubles understanding English.

The language barrier was no issue for us as our client came to our Mr Mark Williams who arranged for interpreters to be at every conference with us.  Further, at some instances along the way, documents were translated to the client’s first language.

The client denied the offence of rape but accepted that unlawful sexual assault did occur.  The challenge then was for Mr Williams to not only demonstrate this on the evidence but to persuade the prosecutors that this was the way in which the matter should be resolved.

Committal Hearings with cross-examination took place as well as legal arguments surrounding the admissibility of aspects of the evidence.  All of these hearings were favourable to our client which ultimately saw the prosecution accept a downgraded charge of sexual assault in lieu of the rape charge being discontinued.

At sentence, our client received a sentence of 9 months imprisonment which was wholly suspended for a period of 24 months.  This was an excellent result in circumstances which saw our client avoid actual imprisonment and remain in the community.

Immigration Matters

As our client was a non-citizen, he faced the prospect of mandatory deportation if he was sentenced to actual imprisonment and his sentence was more than 12 months. Section 501(3A) of the Migration Act 1958 (Cth) states that the Minister must cancel a visa that has been granted to a person if the person does not pass the ‘character test’.

A person will fail the character test if:

• the person has a ‘substantial criminal record’, or they have been convicted of a sexually based offence against a child; and
• the person is currently serving a sentence of imprisonment.

A person has a ‘substantial criminal record’ if, among other things, they have been sentenced to a term of imprisonment of 12 months or more.

A term of imprisonment includes a suspended sentence or release on parole after serving a portion of the sentence.

Leading up to the sentence, we arranged for our client to receive immigration advice from within Potts Lawyers. Our immigration lawyer gave evidence at our client’s sentence in support of the hardship that he would face in being deported.   In this case, as the whole of the sentence was suspended and the head sentence was less than 12 months, our client was able to not only remain in the community but remain in the country and avoid deportation.

WARNING:

This is a summary of an actual case. Details have been omitted to protect the privacy of our client. We select cases which are informative and no guarantee is provided that similar results are achievable in all cases. Every case is different and you should obtain legal advice specific to your matter and circumstances.