Criminal Law | Assault

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Disturbing as it may sound, assaults are the second most common offences coming before the Local Court of NSW. They are normally caused by drunk/drug offences. As such, our solicitors regularly represent individuals either facing charges of assault and battery or who have been the victim of a physical assault.

The Executive Legal team is dedicated to preserving your legal rights. We will be providing you with the information and confidence you need to proceed through your legal case. Below is some vital information about assaults and battery and the law designed to give you a basic understanding of the various assault types and the likelihood of criminal conviction.

Assaults are covered by section 56–61 of the Crimes Act 1900.

Common charges of assault listed include:

  • Assault on person preserving wreck
  • Assault with the intent to commit a serious indictable offence on certain officers
  • Assault occasioning actual bodily harm
  • Assault during public disorder
  • Assault and other actions towards a police officer
  • Assaults at schools
  • Common assaults
  • What is the definition of common assault?

    When a physical attack has occurred but resulted in no bodily harm or injury, a charge of common assault is issued.

    What is the penalty for a common assault conviction?

    In NSW, a common assault conviction carries a maximum penalty of two years imprisonment. Depending on how severe the damages, and criminal history of the assailant, the court may choose to impose any of the following penalties:

  • Section 10: the common assault has been proven but dismissed
  • Fine
  • Good behaviour bond
  • Community Service Order
  • Suspended Sentence (a prison term is set but the defendant is allowed to perform a period of probation, successful completion of the probationary period will suspend the sentence indefinitely)
  • Intensive Correction Order (periodic detention)
  • Prison Sentence
  • What actions might be considered common assault?

    NSW, a common assault conviction carries a maximum penalty of two years imprisonment. Depending on how severe the damages, and criminal history of the assailant, the court may choose to impose any of the following penalties:

  • Threatening to harm
  • Spitting on a person
  • Hitting, punching or kicking another person without causing bodily harm
  • Will a common assault conviction result in a criminal record?

    Any common assault conviction will result in a criminal record.

    What must the police prove to find a defendant guilty of common assault?

    The police must acquire enough evidence to prove that the defendant is guilty of the common assault charge. This involves proving beyond a reasonable doubt that the defendant did strike, intend to injure, or threaten another with violence; that such actions were done so either intentionally or recklessly; that the plaintiff did not provide their consent; and that the assault was done without lawful excuse (self-defence, accident etc.)

    The meaning of “assault occasioning actual bodily harm”

    Actual bodily harm is a physical injury (temporary or permanent) or psychiatric injury (not merely panic or fear) as committed by one person upon another—covered by Section 59 (assault occasioning actual bodily harm) and 35 (assault involving wounding) in the Crimes Act 1900.

    Section 59, outlines the definition and penalty for assault occasioning actual bodily harm as:

    (1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years.

    (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for seven years.

    What is the penalty for assault occasioning actual bodily harm?

    In NSW, an assault resulting in actual bodily harm carries a maximum penalty of five years of imprisonment, or seven years of imprisonment if the event has taken place in front of another person. For assault resulting in wounding, there is a maximum seven years imprisonment, or ten years if the assault has been carried out in front of another person. Depending on the severity and circumstances of the event, and the criminal history of the assailant, the court may choose to impose any of the following penalties:

  • Section 10: the common assault has been proven but dismissed
  • Fine
  • Good behaviour bond
  • Community Service Order
  • Suspended Sentence (a prison term is set but the defendant is allowed to perform a period of probation, successful completion of probationary period will suspend the sentence indefinitely)
  • Intensive Correction Order (periodic detention)
  • Home detention
  • Prison Sentence
  • What actions define assault occasioning in actual bodily harm?

    To be able to complete a charge for assault occasioning to actual bodily harm, there must be a) an assault and b) evidence of physical injury. Assault resulting in wounding is defined as the cutting of the interior layer of skin. A superficial cut to the outer layer of the skin is not sufficient.

    Under section 4 of the Crimes Act 1900, grievous bodily harm can also include:

    The destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm (also see R v King (2003) 59 NSWLR 472; 139 A Crime R 132; [2003] NSWCCA 399), and; any permanent or serious disfiguring of the person, and; 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).

    What lawful excuses constitute a defence for a common assault or bodily harm assault charge?

    It is possible to defend yourself against a common assault or bodily harm assault charge if there is a lawful excuse for your behaviour. These include, but are not limited to

  • You were defending/protecting another person from the plaintiff
  • You were protecting/defending yourself from the plaintiff
  • You were provoked by the plaintiff
  • It was an accident and therefore you did not intend to harm or injure the plaintiff
  • You were under duress (the plaintiff threatened to harm you or your family)
  • There was an urgent situation in which you believe that you or someone else was in imminent peril and therefore your actions were out of necessity
  • Assaults are one of the most common offences that are heard in Local and District courts. There are two different types of assaults that one can be charged with: psychic assault and common assault. Psychic assault involves intending to or recklessly creating imminent unlawful contact without physical contact. Whereas common assault is identified as unlawful contact without the consent of the victim, more commonly referred to as battery.

    As the offence of assault is of a serious nature, the maximum penalty is two years imprisonment. The sentence, however, may vary based on the nature of the crime, and aggravating and mitigating factors that the judge will consider upon sentencing.

    Our lawyers at Executive Legal team are dedicated to preserving your legal rights. We will provide you with the information and confidence you need to precede through your legal case.

    Get in touch with us!