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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 occasioningΒ actual bodily harm
- Assault occasioningΒ 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 theΒ 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. Β
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 recordΒ 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 parentΒ
- The application of forceΒ 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 ofΒ 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.Β
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.Β
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 disfigurementΒ of a person
- Any grievous bodily diseaseΒ
A number of offences are covered under the term assault occasioning grievous bodily harm:
- Wounding or grievous bodily harm with intentΒ
A person who wounds any personΒ wounds anyΒ 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.Β
- 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 harmΒ 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.Β
If the offence occurs during a public disorder, the maximum penalty is 9 years imprisonment.
A person who by any means –Β
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.
Β
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 / Defences
Self-defence
You must believe the offence was necessary and reasonable in the circumstances to:Β
- 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.
Consent Defence
This is common in scenarios such as playing sports. Be wary that the consent defence does not apply in unlawful situations or situations where the degree of harm is very severe.
Lawful Chastisement Defence
Parents are entitled to use reasonable and moderate force to physically discipline their children. s 61AA of the Crimes Act 1900 sets out what is lawful when physically punishing a child.Β
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 recordΒ (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 assaultΒ instead of assaultΒ 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.
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.
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Frequently Asked Questions.
In New South Wales, commonΒ assaultΒ carries a maximum sentence of two years imprisonment or fines of up to $2,200.00.
In NSW, the maximum penalty for the criminal offence of assault occasioning actual bodily harm is 5 years imprisonment. If the offence is committed in the company of others, the maximum penalty is 7 years imprisonment. If found guilty, the conviction will be recorded on your criminal record.
- What other penalties must result if I am found guilty of assault occasioning actual bodily harm?
A criminal court can impose a number of penalties on someone found guilty, including:
- imprisonment, up to the maximum penaltyΒ noted above;
- Community Correction Order;
- intensive correction orderΒ (or home detention condition);
- a fine; or
- conditional release order.
Note however that these penalties may differ, depending on where in Australia the offence was committed.
The prosecution case must show that each element of the offence is proven “beyond reasonable doubt”. This is a relatively high standard of proof, the burden for which lies with the prosecution. If a defendant can point to facts that raise any doubts about the prosecution case, then that prosecution case may not be satisfied and a finding of guilt can not be made.
A common assault is simply a threat which causes another to apprehend imminent harm. It is not a requirement that any harm actually occur or even any physical contact. Assault occasioning actual bodily harm is a form of aggravated assault, in which actual bodily harm accompanies the apprehension of imminent harm in the mind of the victim. This does require physical contact.
Intoxication will not generally be a defence to a serious offence such as assault occasioning actual bodily harm. While intoxication may be a factor relevant to the circumstances of the offence, it will not justify what is a serious offence carrying heavy maximum penalties.
Common assault is a category of assault that is at the lower end of seriousness. It does not require physical contact or injury to occur. The maximum penalty for common assault is 2 years imprisonment and/or fine of $5,500
The elements of common assault are:
a) You assault any person
b) Not occasioning actual bodily harm
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Contact Us
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PO Box 73
Parramatta NSW 2124 - info@jamesonlaw.com.au
- 02 8806 0866
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Jameson Law Offices
