An indictment for aggravated sexual assault under s 61J(2)(a) of the Crimes Act 1900 (NSW) must use the statutory language 'intentionally or recklessly inflicts actual bodily harm' rather than 'occasion actual bodily harm'; use of the latter will result in a misdirection that may not be cured by the proviso, particularly where the evidence does not independently establish the element of aggravation beyond reasonable doubt. Where the aggravated offence cannot be sustained, the court may substitute a verdict for the lesser included offence of sexual assault under s 61I and resentence accordingly.
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