Last week Luke Lazarus was sentenced to a minimum of three years’ jail for the 2013 sexual assault of a teenager in a laneway behind the SOHO nightclub in Kings Cross owned by his father.
He was found guilty after a jury trial which heard that Lazarus met the victim in the nightclub, claimed to own it, and offered to introduce her to the DJ. It was her first night in Kings Cross and she was a virgin. Lazarus took her out the back and the pair commenced kissing. The victim declared an intention to go back inside, whereupon Lazarus demanded her to “put your f***ing hands on the wall, get on the floor and arch your back”. He proceeded to anally rape her for ten minutes.
At sentencing on Friday, District Court Judge Huggett found Lazarus was reckless as to the fact of whether or not the victim was consenting, stating that he was: “not caring in one way or another whether she was consenting”.
At law, a person charged with rape must have one of two mental states at the time they commit the offence in order for them to be found guilty of the offence: intention or recklessness. Additionally, if it is unreasonable in the circumstances for the person to believe that the other person is consenting, then they have the requisite “guilty mind”. A finding that Lazarus was reckless as to the fact of whether the victim was consenting means that he did not necessarily know for a fact that she was not consenting, but he did not care or turn his mind to the issue. At law, this is enough to constitute the “guilty mind” for a rape offence, although it is considered to make the matter less serious than a rape committed with actual knowledge of non-consent on the part of the victim.
How does a court determine whether an accused knows that the complainant is not consenting?
Section 61HA outlines some matters relevant to the determination of whether a complainant consented to sexual intercourse. “Consent” is defined under s 61HA(2) to mean where a person “freely and voluntarily agrees to the sexual intercourse”.
As above, the legislation provides for actual knowledge, recklessness, or the ordinary person test in attributing the mental element to the accused (s 61HA(3)). To determine this question, the Court must take into account a number of factors under subs 3, including the steps if any the accused took towards ascertaining the complainant’s consent.
Section 61HA(4) provides for circumstances where a person is held not to consent. These include capacity, as dictated by matters such as age or cognitive capacity, unconsciousness, where threats of force or terror are made, where the complainant is unlawfully detained, where there is a mistake as to identity or the marital status of the two persons, or where the complainant mistakenly believes that the intercourse is for health or hygienic purposes.
As a corollary to this, s 61HA(6) lists a number of circumstances where a person may not be consenting. These include where the complainant is substantially intoxicated, where intimidation, coercion or threats are apparent or where there is an abuse of a position of authority or trust.
Lastly, that a person does not physically resist intercourse does not mean they are consenting (s 61HA(7)).
Was Lazarus’s sentence unduly lenient or harsh?
The Judicial Commission of NSW compiles sentencing statistics. For the offence of sexual assault, that is, sexual intercourse without consent (s 61I), from October 2007 and September 2014 130 offenders were sentenced. 17% received a non-parole period of 1.5 years, 20% received a non-parole period of 2 years, 17% received a non-parole period of 2.5 years and 12% received a non-parole period of 3 years.
Lazarus’s apparent lack of prior criminal record, youth and remorse would have lessened his sentence. His plea of not guilty and the nature of the assault (prolonged anal intercourse) would have increased his sentence. His sentence is certainly towards the upper end, however not dramatically so. Considering that intercourse is theoretically established by digital oral penetration at the lower end, it is easy to see how Lazarus’s offending could be considered at the higher end of objective seriousness. An appeal against sentence may be successful in Lazarus’s case. To do so, he would need to file such an appeal 28 days from the date of sentence.
Read more: http://www.abc.net.au/news/2015-03-27/convicted-rapist-luke-lazarus/6353068
Image credit: AAP: Jane Dempster and ABC News
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