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ASSAULT CHARGES

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Facing assault charges on your own is a slap in the face. Our are your greatest weapon.

Being charged with assault is a criminal law matter. It is serious and criminal conviction may result in a criminal record. This can have a significant impact on your life, from getting a job to travelling overseas. Most employers now require criminal record checks for prospective employees and countries such as America will not issue a visa for people with criminal convictions. 

It is therefore essential you seek legal advice ASAP and possibly legal representation by our expert criminal lawyers if you have been charged with assaulting someone. Call our law firm for a free initial consultation.

In Australia, a person is considered innocent until proven guilty. It is up to the prosecution to prove the assault charges beyond a reasonable doubt. That means, based on the evidence available to the court, all elements of the offence of assault have been proven by the prosecution without a doubt.

Types Of Assault

In New South Wales, there are three main types of assault:

  • Common assault
  • Assault occasioning actual bodily harm
  • Assault occasioning grievous bodily harm

Sometimes, the police will charge you with multiple assault charges for the one offence. That is because the court may find you not guilty of one type of assault, but guilty for another. The police sometimes stack charges, or cast a net, in case they don’t reach the threshold for one offence.

What Court Will Hear My Matter?

Assault is dealt with under the Crimes Act 1900 (NSW). Assault charges are indictable offences but can be heard summarily depending on the seriousness of the offence. It is up to the prosecution to make that decision. If a matter is dealt with summarily, it will be heard in the Local Court without a jury. If it is dealt with on indictment, it will be heard in the District Court or Supreme Court.  

Assault charges are discussed below in order of their level of seriousness.

How Does The Court Determine Seriousness Of The Assault?

The court looks at a number of factors when determining the seriousness of an assault charge. These factors are called aggravating factors. Some examples include:

  • The type of injury inflicted
  • Actual or threatened use of weapons to commit the offence
  • Committing the offence in the company of other people
  • The victim is a police officer, etc, in the execution of their duty
  • The offence occurs in the victim’s home
  • The offence occurs in front of a child
  • The offence involved a grave risk of death
  • The offender has a criminal record especially for the same or similar offences

If you have been charged with an assault offence and any of the above apply, it is considered an aggravated assault. This increases the severity of the offence and the penalty that may be applied.

Common Assault

Common assault is the act of physical contact with another person without consent but does NOT cause bodily harm.

The maximum penalty for this offence is imprisonment for 2 years.

Defence for common assault charges

Lawful chastisement of a child is a defence for common assault on the following conditions:

  • The physical force was made by a parent or person acting for the parent 
  • The application of force was reasonable having regard to the child’s age, health, maturity, or other characteristics of the child, the nature of the misbehaviour or other circumstances

The physical application of force is not reasonable if:

  • It is applied to any part of the head or neck of the child
  • To any other part of the child’s body if it is likely to cause harm to the child that lasts longer than a short period of time.

Assault Occasioning Actual Bodily Harm (ABH)

Assault occasioning actual bodily harm is the act of assaulting another person causing actual bodily harm to that person.

 

Penalties

The maximum penalty for this offence is imprisonment for 5 years. 

If the assault causing actual bodily harm to another person is committed in the company of another person or persons, the maximum penalty is imprisonment for 7 yeas.

Assault Occasioning Actual Bodily Harm (ABH)

Assault occasioning actual bodily harm is the act of assaulting another person causing actual bodily harm to that person.

 

 

Penalties

The maximum penalty for this offence is imprisonment for 5 years. 

If the assault causing actual bodily harm to another person is committed in the company of another person or persons, the maximum penalty is imprisonment for 7 years.

Assault Occasioning Grievous Bodily Harm (GBH)

Assault occasioning grievous bodily harm is defined by the Crimes Act as:

  • The destruction of the foetus of a pregnant woman, whether or not the woman suffers any other harm (except in the case of a medical procedure or termination of a pregnancy)
  • Any permanent or serious disfigurement of a person
  • Any grievous bodily disease 

A number of offences are covered under the term assault occasioning grievous bodily harm:

  • Wounding or grievous bodily harm with intent 

A person who wounds any person wounds any person, or causes grievous bodily harm to any person with intent to cause grievous bodily harm to that or or any other person is guilty of an offence.

The maximum penalty for this offence is 25 years imprisonment.

  • Reckless grievous bodily harm or wounding

A person who wounds any person and is reckless as to causing bodily harm to that or any other person, is guilty of an offence.

The maximum penalty for this offence is 7 years imprisonment.

  • Reckless wounding in company

A person who, in the company of another person or persons, causes grievous bodily harm to any person and is reckless as to causing bodily harm to that or any other person.

The maximum penalty for this offence is 10 years imprisonment. 

  • Reckless grievous bodily harm

A person who causes grievous bodily harm to any person and is reckless as to causing actual bodily harm to that or any other person is guilty of an offence.

The maximum penalty for this offence is 10 years imprisonment.

  • Reckless grievous bodily harm in company

A person who, in the company of another person or persons, causes grievous bodily harm to any person and is reckless as to causing actual bodily harm to that or any other person is guilty of an offence.

The maximum penalty for this offence is 14 years imprisonment.

  • Causing a dog to inflict grievous bodily harm or actual bodily harm

A person who has control of a dog and does any act that causes the dog to inflict grievous bodily harm on another person and is reckless as the injury that may be caused to a person by the act is guilty of an offence.

The maximum penalty for this offence is 10 years imprisonment. If the dog is used to inflict actual bodily harm, the maximum penalty is 5 years imprisonment.

Assault Police

Assault police is a serious charge and often accompanies other charges such as resist arrest. A police officer is not required to be ‘on duty’ at the time of the offence. It is still an assault against police if the offence occurs:

  • As a consequence or in retaliation for action undertaken by that officer in the execution of their duty
  • Because the person is a police officer

A person who assaults, throws a missile at, stalks, harasses or intimidates a police officer while in the execution of the officer’s duty, although no actual bodily is occasioned to the officer is guilty of an offence.

 

Penalties for assaulting a police officer occasioning bodily harm

The maximum penalty for this offence is 5 years imprisonment

If the offence occurs during a public disorder, the maximum penalty is 7 years in prison.

A person who assaults a police officer in the execution of the officer’s duty, and by the assault occasions actual bodily harm, is guilty of an offence.

 

Penalties for wounding or causing grievous bodily harm to a police officer

The maximum penalty for this offence is 7 years imprisonment. 

If the offence occurs during a public disorder, the maximum penalty is 9 years imprisonment.

A person who by any means – 

Wounds or causes grievous bodily harm to a police officer while in the execution of the officer’s duty, and

Is reckless as to causing actual bodily harm to that officer or any other person

is guilty of an offence.

 

Sexual Assault

Sexual assault is a special category of assault with a number of sub-categories. Due to its complexity, sexual assault has been given its own page, Sexual Charges. To read more about this offence, click on the link above.

 

Domestic and Family Violence

Domestic and family violence is a special category of assault. Due to its complexity and increased prevalence, domestic violence has been given its own page, Domestic Violence. To read more this offence, click on the link above.

Lawful Excuse

Self-defence

You must believe the offence was necessary and reasonable in the circumstances to: 

  • Defend yourself or another person
  • To prevent or terminate the unlawful deprivation of your liberty or another persons
  • To protect property from unlawful taking, destruction, damage, or interference to property
  • To prevent criminal trespass to any land or premises or to remove a person from committing such trespass

Intoxication

Intoxication is a lawful excuse but only where the intoxication was not self-induced.

You should speak with one of our expert criminal lawyers to determine if you have a lawful excuse for committing the assault.

Sentencing Options in the Local Court for Assault Offences

When determining sentencing options after conviction, the court looks at mitigating factors. These include:

  • The injury, emotional harm, etc was not substantial
  • The offence was not part a planned or organised criminal activity
  • The offender was provoked by the victim
  • The offender was acting under duress
  • The offender does not have a criminal record (or any significant record) of previous convictions
  • The offender is unlikely to re-offend
  • The offender has good prospects of rehabilitation
  • Remorse shown by the offender (only if they accepted responsibility and acknowledged the injury caused)
  • The offender was not aware of the consequences of their actions due to age or disability
  • They entered a guilty plea
  • Assistance provided to law enforcement during the investigation into the offence
  • An offer to plead guilty for a different offence (e.g. pleading guilty to common assault instead of assault occasioning actual bodily harm).

Prison is a last resort, reserved for serious and repeat offences. The Local Court has a number of diversionary or alternative sentencing options available for minor offences. These are the most favourable outcomes in the event you are found guilty.

 

Here is a list of the outcomes you may expect:

A section 10 is the best possible outcome in the event the court finds you guilty of a drug offence. There are three orders available to the court under section 10 of the Crimes (Sentencing and Procedure) Act where the court believes it is inappropriate to further punish an offender.

  • Section 10 (1) (a)- dismissal with no conviction recorded
  • Section 10 (1) (b)- dismissal with no conviction on conditions set by the court. For example, not to commit an offence for a period of two years 
  • Section 10 (1) (c)- dismissal with no conviction on the condition that the offender enters into an intervention program. For example drug and alcohol counselling. 

A section 10 is an acknowledgement of the court that you have committed an offence, however, the court is satisfied that it is out of character and you are unlikely to continue offending. It's the court's way of giving you a second chance.

Before granting a section 10, the court will consider:

  • Your criminal record. 
  • Your character, antecedents, age, heath and mental condition, drug use
  • The trivial nature of the offence
  • Extenuating circumstances that lead to the offence being committed 
  • Any other matter the court considers relevant

Intensive Corrections Orders are an option available to the court where a sentence of imprisonment is imposed on the condition that a defendant is of good behaviour and agrees to supervision by a community corrections officer rather than go to prison. 

Additional conditions that may be imposed by the court include:

  • home detention
  • electronic monitoring
  • curfew
  • community service (up to 750 hours)
  • participation in rehabilitation or treatment programs, for example drug treatment/counselling
  • no drugs or alcohol
  • refrain from certain relationships/associations, for example drug dealer, etc.
  • ban from certain locations

Community Corrections Orders are similar to Intensive Corrections Orders. The main exception being that a defendant needs to make themselves available to attend court at any time the court requires.

A Conditional Release Order is similar to an Intensive Corrections Order or Community Corrections Order. A Conditional Release Order can be issued with or without a conviction recorded.

A section 32 is a diversionary option available under the Mental Health (Forensic Provisions) Act 1990 (NSW). If a defendant is, or at the time the offence of assault occurred:

  • cognitively impaired
  • suffering from mental illness
  • suffering from a mental condition for which treatment is available in a mental health facility

The options available to a magistrate under a section 32 include:

  • adjourning the matter
  • granting the defendant bail
  • any other order the magistrate deems appropriate
  • dismissing the charges and discharging the defendant into the care of a responsible person (e.g. a parent) on the condition they attend a specified place for assessment or treatment.

If the court convicts you of an assault offence, it will likely issue an Apprehended Violence Order. There are two types of Apprehended Violence Orders:

  • Apprehended Domestic Violence Order (e.g. between husband and wife)
  • Apprehended Personal Violence Order (e.g. between neighbours, work colleagues, etc)

Even if the court acquits you of an assault offence, it can still issue an Apprehended Violence Order. That is because the prosecution might not have been able to prove you committed the offence beyond a reasonable doubt, however, it may have been able to meet the requirements for an AVO.

Apprehended Violence Orders are not a criminal conviction, rather they are civil court order that can be issued for the protection of a victim. It has a lower burden of proof (on the balance of probabilities) than a criminal offence (beyond reasonable doubt).  This means that even if the court dismisses the assault charges, it may still issue an Apprehended Violence Order if it believes it is reasonable for the protection of the victim.

For more information about Apprehended Violence Orders, click on the criminal law link at the top of the page.

Disclaimer

The above is general legal information and should not be considered legal advice. You should speak with one of our solicitors for legal advice tailored to your specific legal problem. The penalties listed are maximum penalties. The courts deal with matters on a case by case basis. It should also be noted that there may be court delays due to COVID-19.

Frequently Asked Questions.

Our lawyers cover a multitude of areas, including more serious offences. Including but not limited to:

Family Violence
Family violence is among the most common cases we encounter, with both men and women subject to institutional abuse. While it doesn’t necessarily entail sexual abuse, in many cases, it does, and sexual assault is part of the Criminal Code. We handle such cases with confidentiality and cautiousness to ensure the best possible compensation outcomes.

Children-related Issues
The children’s court is frequently confronted with issues of child protection, children’s rights, custody arrangements as a result of divorce, parental responsibilities, and more.

Because we understand how far the impacts of such situations can go in the memories of children, we work rapidly and efficiently to establish protective measures against children’s trauma and minimize time spent in a children’s court. You and your children are fully protected with us!

Drugs
We have a track record of achieving outstanding results when it comes to drug offence charges, ranging from demolishing the possibility of a criminal conviction, dropping charges through negotiations, securing “not guilty” verdicts in court trials, and more.

Our drug offences include commercial drug charges, drug importation charges, drug possession charges, and cultivating prohibited plant charges. We also work with minor possessions of prohibited drug offences, providing you with legal representation throughout the process!

Fraud

Fraud is considered one of the most scheming criminal offences, and accordingly, it is punished severely by the court system’s penal code and criminal code. As specified by Australia’s penal code, the penalties can go as high as ten years of imprisonment.

Accordingly, understanding the criminal law adequately and reaching out for professional legal advice to be your intermediary with the criminal justice system is a must. We specialize in forgery, identity crimes, tax fraud, Medicare fraud, and ID fraud.

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