Assaults are a common occurrence on the streets of Australia. They can happen at political demonstrations, at sporting stadiums, and even in the parking lots of shopping centres. They can even occur at your home. The Australian Bureau of statistics has outlined that 1 person per 119 people have been assaulted – this has seen a decline since the 2000s.
Types of Assault
Without limiting sexual assault, assault typically has four categories:
- Common assault;
- Assault occasioning bodily harm;
- Assault occasioning grievous bodily Harm; and
- Assault occasioning death.
The various levels of assault can be equated to a ladder of punishment, the higher that you go, the more likely that the punishment will be severe.
- Common Assault
The offence of common assault is contained in section 61 of the Crimes Act 1900 (NSW) which states “Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years”. Effectively, assault that doesn’t result in bodily harm can lead to your liability. An example of this is if you intentional or recklessly ‘push, kick, threaten’ a person which causes them to feel fear, intimidation but does not cause them to suffer any short-term effects than you may have committed assault.
Would parents physically disciplining their children equate to common assault?
When a parent smacks their child for misbehaving, they are protected under s61AA for the “Defence of Lawful Correction” which holds that the application of physical force to a child is lawful if it is reasonable having regard to many factors, including the nature of the misbehaviour. Unreasonable force is not a defence to common assault, and a parent will be liable if this is the case.
- Assault occasioning Actual Bodily Harm (AOABH)
The offence of AOABH is contained in section 51 od the Crimes Act 1900 (NSW) which states, “Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years”. Actual bodily harm is a subjective topic. It can be something as simple as cuts and bruises sustained from a push to the ground all the way to psychological harm that the victim can receive from the assault. It is the role of the Prosecutor to prove that ‘actual bodily harm’ occurred to the victim.
- Assault Occasioning Grievous Bodily Harm (GBH)
The offence of Assault occasioning GBH is contained in section 22 of the Crimes Act 1900 (NSW) which states that “A person who wounds any person, or causes grievous bodily harm to any person with intent to cause grievous bodily harm to that or any other person is guilty of an offence”. The maximum penalty for an offence committed under this section is imprisonment for 25 years.
‘Grievous bodily harm’ includes any permanent or serious disfiguring of the person. For example, assault causing permanent damage such as a knife wound or broken bones which result in permanent or serious disfiguring of the victim can lead you liable to punishment under this offence.
Defences for Assault
The primary defence to assault is self-defence, which holds that a person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. However, self-defence must be reasonable and proportionate to the circumstances. Self defence is considered necessary by law:
- To defend oneself 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 and the conduct is a reasonable response in the circumstances as he or she perceives them.”
This defence is not available in relation to the protection of property or to prevent criminal trespass or to remove a person committing criminal trespass.
Another defence is Duress, which holds that you voluntarily acted in an extreme situation that warranted you to commit an offence. The courts recognise that in some cases someone who commits what would otherwise be a crime should be excused for having done so. To establish Duress as a defence, you must ask yourself three questions:
- Were you driven by the alleged threat to act in the way that they did because they genuinely believed that if they did not act in this way that they or there family would be killed or seriously injured?
- Would those threats, to a reasonable person, cause them to act in the way that you did?
- Was there an alternative course of actions in the face of the threat? Could you have taken another lawful alternative instead of committing an offence.
The defence of necessity operate where circumstances either natural or human threats bear upon the accused, inducing the accused to break the law to avoid even more dire consequences.
The Common law defence of necessity holds that the elements of the defence are:
- The criminal act must have been done in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he or she was bound to protect;
- The accused must honestly have believed on reasonable grounds that he or she was placed in a situation of imminent period; and
- The acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided.
It is up to the Prosecution to prove that the actions undertaken were not sufficient for a defence of necessity.
What to do If I have assaulted someone?
Assault is a criminal offence. If you are in need of legal assistance, please contact a trustworthy and compassionate lawyer who has experience in assault matters. You may be eligible to put forth a defence to assault with the right legal assistance and guidance.
Our criminal lawyers here at Executive Legal have a depth of knowledge and experience in assault, and have helped our clients reduce their punishment through a legally sound defence. First and foremost, our lawyers are compassionate and trustworthy. They understand we are human and we all make mistakes. Our lawyers help clients understand their wrongdoings, and assist them in making meaningful changes to put the on a better path.