In the hopes of giving everyone a better understanding of Jack de Belin’s current situation, below I have provided:
I. A copy of the offence that he was charged with on 13 December 2018;
II. The elements of the offence (i.e., a step-by-step description of what the prosecution must prove beyond a reasonable doubt); and
III. Alternative verdicts to the offence.
(Please note: At this stage he has been charged with one count of ‘s 61JA aggravated sexual assault in company’. When he appears in Wollongong Local Court on Tuesday 12 February 2019 the form of the indictment will state if he has been charged with:
- s 61JA(a)(i) aggravated sexual assault in company—inflict actual bodily harm; and/or
- s 61JA(a)(ii) aggravated sexual assault in company—threaten to inflict actual bodily harm; and/or
- s 61JA(a)(iii) aggravated sexual assault in company—deprive victim of his/her liberty,
as such, I have provided the elements to all three offences s 61JA(a)(i), s 61JA(a)(ii), and s 61JA(a)(iii)).
I. THE OFFENCE
Crimes Act 1900 (NSW), s 61JA Aggravated sexual assault in company
61JA (1) A person:
(a) who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse, and
(b) who is in the company of another person or persons, and
(c) who:
(i) at the time of, or immediately before or after, the commission of the offence, intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or
(ii) at the time of, or immediately before or after, the commission of the offence, threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby or by means of an offensive weapon or instrument, or
(iii) deprives the alleged victim of his or her liberty for a period before or after the commission of the offence,
Is liable to imprisonment for life.
(2) A person sentenced to imprisonment for life for an offence under this section is to serve that sentence for the term of the person’s natural life.
(3) Nothing in this section affects the operation of section 21 General power to reduce penalties of the Crimes (Sentencing Procedure) Act 1999 (NSW) (which authorises the passing of a lesser sentence than imprisonment for life).
(4) Nothing in this section affects the prerogative of mercy.
II. THE ELEMENTS
The elements of the offence are –
Crimes Act 1900 (NSW), s 61JA(1)(a)(i) Inflict actual bodily harm
(1) The accused had sexual intercourse with the victim; and
(2) that sexual intercourse occurred without the consent of the victim; and
(3) the accused knew or was reckless to the lack of consent of the victim to the sexual intercourse; and
(4) the accused was in the company of another person or persons; and
(5) immediately before, at the time of, or immediately after the sexual intercourse, the accused inflicted actual bodily harm upon that person or any other person who was present or nearby; and
(6) this infliction of actual bodily harm was done maliciously.
Crimes Act 1900 (NSW), s 61JA(1)(a)(ii) Threaten to inflict actual bodily harm
(1) The accused had sexual intercourse with the victim; and
(2) that sexual intercourse occurred without the consent of the victim; and
(3) the accused knew or was reckless to the lack of consent of the victim to the sexual intercourse; and
(4) the accused was in the company of another person or persons; and
(5) immediately before, at the time of, or immediately after the sexual intercourse the accused threatened to inflict actual bodily harm upon that person or upon any other person that was present or nearby; and
(6) that threat was made by means of an offensive weapon or instrument.
Crimes Act 1900 (NSW), s 61JA(1)(a)(iii) Deprive victim of his/her liberty
(1) The accused had sexual intercourse with the victim; and
(2) that sexual intercourse occurred without the consent of the victim; and
(3) the accused knew or was reckless to the lack of consent of the victim to the sexual intercourse; and
(4) the accused was in the company of another person or persons; and
(5) for a period before or after the sexual intercourse the accused deprived the victim of his/her liberty.
III. ALTERNATIVE VERDICTS
If a jury is not satisfied that the accused is guilty of an offence under s 61JA, but is satisfied on the evidence that the accused is guilty of an offence under:
(1) Crimes Act 1900 (NSW), s 61I Sexual assault; or
(2) Crimes Act 1900 (NSW), s 61J Aggravated sexual assault; or
(3) Crimes Act 1900 (NSW), 66A Sexual intercourse--child under 10; or
(4) Crimes Act 1900 (NSW), s 66C Sexual intercourse--child between 10 and 16,
then that jury may find the accused not guilty of the offence charged, but guilty of the lesser offence: Crimes Act 1900 (NSW), 80AB Alternative verdicts.