Assault refers to the use or threat of force against another person and are the second most common offences (14%) appearing before the Local Court in NSW, behind traffic and vehicle violations (35%).
In New South Wales the various assault offences are set out in the Crimes Act 1900. For a person to be found guilty of an assault the prosecution needs to prove two things: firstly, that they used or threatened to use unlawful physical force against another person, and secondly, that the physical force was either intentional or reckless. This article outlines the various assault offences in New South Wales.
Types of assault charges.
There are multiple variations of assault charges in NSW.
Common assault is the act of physical contact with another person without consent but does not cause bodily harm. It is the most frequent assault charge and very common within NSW Courts. If you are charged with common assault it is vital that you seek legal advice from a legal representative. Common assault can be constituted by a wide range of acts such as punching, pushing, spitting and threatening a person. Physical injury does not have to be proven in a common assault case.
Common assault is a less serious offence than other assault charges such as assault occasioning bodily harm or causing grievous bodily harm which will be outlined later in this article. It is common for the police to attempt to charge a person with these more serious offences where the alleged conduct would easily fit within the definition of Common Assault. An experienced criminal lawyer could therefore be the difference between facing a 2 years imprisonment for common assault or a maximum 5 years imprisonment for Assault occasioning actual bodily harm.
It includes both:
(a) Any act which causes another person to fear immediate personal violence (threat of force), it does not just have to be physical assault; and
(b) A striking, touching or application of force against another person (use of force).
In both cases the prosecution must also show that:
(a) The accused acted intentionally or recklessly.
(c) The victim did not consent to the conduct, and
(d) The conduct was without lawful excuse.
If you are charged with common assault, the matter will be likely to be dealt with in the Local Court. However, the prosecution or defence can elect to have the matter dealt with in the District Court. If the matter is dealt with in the Local Court the Maximum penalty is 2 years imprisonment and/or 20 Penalty units.
When you are charged with common assault, there are many defences available. Your charge will be dismissed if:
(a) The assault was committed in self-defence. Such as where due to fear, you have responded for your protection or for the protection of someone else or property. Your response must have been a reasonable response in he circumstances perceived by you at the time.
(b) The assault was an accident. If physical force is applied, it occurred as an inevitable conduct of everyday daily life, or it’s something generally accepted by society.
(c) The accused was acting under duress.
Penalties for Common Assault can include imprisonment, fines, community corrective orders as well as leaving a mark on your criminal record. The punishment depends on whether you plead guilty or proceed with a not guilty plea. If you plead guilty and manage to convince the Magistrate or Judge you may be able to impose a non-conviction section 10 sentence.
Assault Occasioning Actual Bodily Harm.
Assault occasioning actual bodily harm is an offence under Section 59 of the Crimes Act 1900.
An Assault Occasioning Actual Bodily Harm is any act (but not a failure to act) where a person intentionally or recklessly causes another person to apprehend immediate and unlawful violence and Actual Bodily Harm results. Unlike common assault, these types of assault charges are known as ‘aggravated assault’.
A charge of Assault Occasioning Actual Bodily Harm is considered to be more serious than a charge of Common Assault and persons charged with Assault Occasioning Actual Bodily Harm can expect significant penalties if they are convicted of the offence.
Actual Bodily Harm is known as “hurt or injury that interferes with the health or comfort of the person assaulted”. Examples of Actual Bodily Harm include:
(a) A deep scratch or lasting bruises.
(b) A ‘black eye’.
(c) A psychiatric condition.
Before finding you guilty, the prosecution must prove, beyond a reasonable doubt, the following elements:
(a) You applied force, hit or touched another person. Your actions must have caused someone to fear some form of personal violence.
(b) You did so intentionally or recklessly.
- The prosecution must prove that you intended to cause the other person to fear immediate personal violence, or that you did so recklessly; in other words, that you knew that your actions would cause the other person to fear immediate violence.
- If your actions were reckless and resulted in physical contact, the prosecution has to prove that you realised that your actions may have resulted in some form of physical contact, however slight.
(c) You did so without consent or lawful excuse. It must be proven that you did not have any reasonable or lawful excuse for your actions.
(d) You caused bodily harm to the victim. It must finally be proven that you caused some kind of physical that is ore than merely transient or trifling or where you have caused a form of serious psychological injury to the victim.
If you are charged with common assault, the matter will be likely to be dealt with in the Local Court. However, the prosecution or defence can elect to have the matter dealt with in the District Court. If the matter is dealt with in the Local Court the Maximum penalty is 2 years imprisonment and/or a $5500 fine. Whereas if the case is elected to proceed in the District Court, the maximum penalty for the offence is 5 years imprisonment.
The penalties that you may receive depends largely on the facts and circumstances of your case. The court will take into account many factors including the types of injuries suffered and the degree of violence used.
The maximum penalty provided above is only reserved for the most serious cases. Statistics show that the most common penalty for this type of assault is s9 good behaviour bonds.
Assault Occasioning Grievous Bodily harm or wounding offences.
Grievous Bodily Harm is defined within Section 4(1) of the Crimes Act 1900 (NSW), as seen below.
“Grievous bodily harm” includes–
(a) the destruction (other than in the course of a medical procedure or a termination of a pregnancy in accordance with the Abortion Law Reform Act 2019 ) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and
(b) any permanent or serious disfiguring of the person, and
(c) any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease).
Wounding, is known as incidents where the skin is ‘broken’.
It is a crime in NSW, to intentionally or recklessly inflict ‘grievous bodily harm’ or ‘wounding’ to a person.
A person will be guilty of recklessly causing GBH or wounding if he/she had realised the possibility of causing ‘actual bodily harm’ (bruise or scratch) at the time of the assault but committed the assault anyway.
A person will be guilty of intentionally causing GBH or wounding if he/she had intended to cause the GBH (i.e. broken bone) or wounding (broken skin) at the time of the assault, but committed the assault anyway.
Although, a person who recklessly causes GBH or wounding on a person will generally receive a lighter sentence in court than a person who intentionally does it.
If you are charged with recklessly causing GBH or wounding, before finding you guilty, the prosecution must prove, beyond a reasonable doubt, the following elements:
1. You did something to inflict either one of the following to a person:
- Grievous bodily harm: Really serious injury in the nature of a permanent or serious disfiguring i.e. broken bone; or
- Wounding: Penetrated the skin i.e. split lip; and
2. You realised the possibility of causing actual bodily harm (i.e. bruise or scratch) at the time but went ahead and did it anyway.
If you are charged with intentionally causing GBH or wounding, before finding you guilty, the prosecution must prove, beyond a reasonable doubt, the following elements:
(a) You did something to inflict GBH or wounding; and
(b) You intended to cause GBH or wounding.
The penalties for this offence include:
actual imprisonment. Unlawful wounding and grievous bodily harm offences. If you are charged with this offence you may receive the maximum sentence if found guilty, therefore it is crucial that you seek legal representation from a legal practice. If you end up with the help of law firms, you may be able to avoid a prison sentence.
There are many defences to these offences that your legal team may be able to suggest in order to avoid the harsh penalties attached to this assault charge.
Your GBH or wounding charge will be dismissed if:
(a) You acted in self defence or were acting to defend someone else or your property.
(b) The injury caused was from an intervening event or incident other than from your actions.
(c) Mental Illness.
(d) Duress or necessity.
Sexual Assault Charge.
Sexual Assault is becoming an increasingly common offence bought before the courts today. Anyone charged with these offences face extremely serious criminal charges with maximum sentence terms of imprisonment.
The following schedule will show the type of sexual assault along with the serious criminal charges and penalties that follow it.
Any person 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 is liable to imprisonment for 14 years.
Aggravated sexual assault
Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.
Aggravated sexual assault in company
A person 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 in the company of another person or persons, and in circumstances of aggravation is liable to imprisonment for life.
Assault with intent to have sexual intercourse
Any person who, with intent to have sexual intercourse with another person: who intentionally or recklessly inflicts actual bodily harm on the other person or a third person who is present or nearby, or threatens to inflict actual bodily harm on the other person or a third person who is present or nearby by means of an offensive weapon or instrument, is liable to imprisonment for 20 years.
Other types of assault in NSW include:
(a) Choke, suffocate & strangulation charge.
(b) Using Carriage service to threaten, harass, offend or menace charges.
(c) Resist, Hinder or Assault police officer charges.
(d) Affray Charges, Damage.
(e) Destroy Property Charges.
Consequences of an assault charge.
As seen above, an assault charge can have a serious affect on not only a person assaulted resulting in permanent injury needing medical treatment, but also the person charged with assault, who may have their criminal history effected. As this is the case, it is vital that you constitute legal advice if you wish to avoid receiving a criminal conviction.