What is assault occasioning actual bodily harm in NSW?
The criminal offence of “assault occasioning actual bodily harm” refers to an act in which one person, either recklessly or intentionally, causes another person to apprehend immediate and unlawful violence, and “actual bodily harm” results.
“Actual bodily harm” has a broad definition, which includes “hurt or injury that interferes with the health of comfort of the person assaulted”.
The offence has several elements which, if proven, will render a person guilty of the offence under section 59 of the Crimes Act 1900 (NSW). Those elements are as follows:
- Force is applied to another person (including striking, hitting, touching or pushing);
- the force is applied either intentionally, or recklessly;
- the force is applied with no consent or lawful excuse; and
- the result of the force is bodily harm.
The criminal law divides assaults into “common assault” and “aggravated assault”. Common assault is committed simply when one person causes another person to apprehend immediate harm – regardless of whether any actual physical contact, injury or harm results. An aggravated assault occurs when a common assault is followed by some aggravating factor, including actual harm. Assault occasioning actual bodily harm is therefore an example of “aggravated assault”, alongside other offences such as assault occasioning grievous bodily harm.
In New South Wales, an assault occasioning actual bodily harm charge is a serious offence and will result in a maximum penalty of 5 years imprisonment under s59(1) of the NSW Crimes Act, or 7 years imprisonment if the offence is committed in the company of another person, as a more serious charge under s59(2).
Note that this article focuses on the criminal law in force in NSW, the law may differ slightly depending on where in Australia the criminal offence is committed.
What type of offence is assault occasioning actual bodily harm?
The criminal offence of assault occasioning actual bodily harm is an example of an aggravated assault. Under the New South Wales Crimes Act 1900 (NSW), there are a range of aggravated assault offences, which encompass assault offences which are more serious offences than common assault. The difference between common assault and aggravated assault is explored in more detail below.
Aggravated assault offences are found in sections 32 to 55 of the Crimes Act 1900 (NSW), with a range of bases upon which aggravated assault charges may be laid. These include:
- Actual bodily harm;
- Grievous bodily harm;
- Wounding (where more than just the top layer of skin is broken).
Each of these criminal offences focuses on the aggravating factor of the physical injury that accompanies the common assault. As noted above, “Actual bodily harm” includes “hurt or injury that interferes with the health of comfort of the person assaulted”. This includes where the assault results in a recognised psychiatric injury such as anxiety or depression.
As a serious violent offence, a charge of assault of the seriousness of assault occasioning actual bodily harm can be dealt with in the Local Court, or in the District Court if the prosecution elects so. Generally however, this offence will be dealt with in the Local Court.
What are the defences to assault occasioning actual bodily harm?
There are a number of possible defences to a conviction of assault occasioning actual bodily harm. If a defence is proven by a defendant, this will generally relieve the defendant of guilt by providing partial or complete legal justification for the serious injury inflicted by virtue of the assault. Note that the onus of proving a defence will depend on the defence in question.
In New South Wales, possible defences to actual bodily harm charges include:
- Self-defence;
- duress;
- necessity; and
- lawful excuse (or lawful justification)
Self-defence
Under New South Wales law, the defence of self-defence applies to all assault offences. If a person is found guilty of either common assault or aggravated assault, they are able to argue that the actions constituting the offence were necessary for self-defence and were a reasonable response “in all the circumstances as they perceive them”.
Under s418 of the Crimes Act 1900 (NSW), a person is able to argue self-defence where they believed the conduct constituting the offence was necessary:
- to defend himself or herself or another person; or
- to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person; or
- to protect property from unlawful taking, destruction, damage or interference; or
- to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass.
If a person raises self-defence where they have been found guilty of assault occasioning actual bodily harm, the prosecution case must then disprove that the person acted in self-defence, beyond reasonable doubt. This puts the onus of proof on the prosecution not only to prove the elements of the offence, but also disproving any argument that the assault was carried out in self-defence.
Duress
A defence of duress will be available only where an act constituting an assault (including an assault occasioning actual bodily harm), is committed where the person who committed the assault did so having been intimidated or threatened into doing so, against their will. In order to prove a defence of duress, a defendant must show the following:
- an actual threat – you must show that there was an actual threat, and that you genuinely believed that the substance of that threat was real;
- the threat must be serious – the threat must be such as to justify your actions. The threat will generally need to be a threat of serious injury to you or your family, or a death threat;
- the threat was acting on you at the time – you must show that it was because of the threat that the conduct constituting the offence took place. If there was a chance for other reasoning to enter your mind, it will be difficult to establish this defence; and
- the threat must have been continuing – if there was any opportunity for you to avoid the threat (such as by removing yourself from the circumstances, or contacting authorities), then a defence of duress may not be established.
As with the defence of self-defence, if there is evidence of these elements, the onus of proof will then lie with the prosecution case to show beyond reasonable doubt that you were not acting under duress during the commission of the offence.
Necessity
The defence of necessity is very similar to the defence of duress, in that you must show that the circumstances were such that you could not avoid the commission of the offence. While proving necessity does not require proof of a “threat” as the defence of duress does, you will still need to prove that there was some overbearing circumstance which caused you to commit the assault, so that you were avoiding serious consequences.
This defence is often difficult to establish in cases of assault occasioning actual bodily harm, but can be proven if there is evidence of the following:
- You were acting only to avoid serious, irreversible consequences upon yourself or someone who you were bound to protect. This will require serious circumstances to exist such as a threat to life or serious injury;
- you held an honest and reasonable belief that you were in a situation of “immediate peril”, which was sufficient to justify an urgent and instant response including the act constituting the offence;
- your actions (i.e. the assault offence) were a reasonable and proportionate response to the situation.
As with self-defence and duress, if you are able to show evidence of these elements in the commission of the offence, it will lie with the prosecution case to disprove that you faced any danger or acted reasonably and proportionately in the circumstances.
If a defence of duress or necessity is proven, no finding of guilt can be made.
Lawful excuse
Under s417 of the Crimes Act 1900 (NSW), a person who has some lawful authority or lawful excuse for the actions constituting an offence of assault occasioning actual bodily harm, they will have a legal defence to that conduct.
Note however that unlike self-defence, the defence of lawful excuse must be proven by the defendant, i.e. they must show proof of that authority of excuse. For example, a police officer acting in the course of their employment and using reasonable force in the exercise of law enforcement, will generally have lawful authority for carrying out that reasonable force – even if that conduct might otherwise constitute assault occasioning bodily harm.
Intoxication
Intoxication is not a defence to assault occasioning actual bodily harm. Intoxication will however form part of the circumstances of the criminal offence. This will be relevant to a number of elements of the offence and the prosecution case, including:
- whether the person held the requisite intent at the time of the offence, however only if that intoxication was not self-induced; and
- as a factor relevant in determining sentencing options.
What is the sentence for assault occasioning actual bodily harm?
The sentence for the criminal offence of assault occasioning actual bodily harm is, under s59(1) of the Crimes Act 1900 (NSW), 5 years imprisonment. As noted above, if the violent offence is committed in circumstances where another person is present (i.e. in the company of others), then this will be sufficient to give rise to the more serious charge under s59(2). This offence carries a maximum sentence of 7 years imprisonment.
Despite this, there are other options available to a Court in determining the penalty to be handed down upon a finding of guilt. From September 2018, these include:
- Imprisonment, up to the maximum penalty outlined above;
- an intensive correction order, which is a sentence of two years or less that is served in the community, under the strict supervision of Community Corrections (elsewhere also referred to as a community service order);
- a community correction order, which is an order that you do not commit any further offences. If further criminal offences are committed, the original offence may be resentenced and you may be submitted to more harsh penalties;
- a fine; and/or
- a conditional release order, which is similar in substance to a community correction order, and elsewhere as a good behaviour bond.
What’s the difference between common assault and actual bodily harm?
In New South Wales, the criminal offence of assault is divided into two categories, depending on the seriousness of the offence. These two categories are “common assault” and “aggravated assault”
A common assault occurs simply when the actions of one person (including words), cause another person to apprehend the imminent application of physical force. A common assault can occur regardless of any actual physical contact or physical injury. No actual bodily harm needs to result – all that a prosecution case must prove to make out an offence of common assault is that one person conducted themselves in a way which caused another to perceive the threat of imminent harm.
On the other hand, an aggravated assault is one in which a common assault is accompanied by an “aggravating” factor. In the case of assault occasioning actual bodily harm, which is an example of an aggravated assault, the common assault is aggravated by some consequential bodily harm which is caused by physical contact. In order for an aggravated assault to be proven, the prosecution case must prove beyond reasonable doubt not only that the elements of common assault were established, but also the aggravating factors required to prove the aggravated assault charge.
