What is Assault?
Assault charges in Australia are taken very seriously. Assault is classed as an offence against the person, and therefore no matter how minor the incident may have seemed, the charges are not to be taken lightly. There are different penalties for the different assault offences depending on the seriousness of the incident; however, all assault charges have a jail term as a penalty option. Whether the magistrate or judge orders a term of imprisonment or not will depend on the type of offence committed, the circumstances surrounding the offence, and the offender’s past criminal history.
An assault may occur by, for example, striking, touching, moving or applying force without a person’s consent, or with the person’s consent if that consent is obtained by fraud. It is not necessary for a physical injury to have been sustained for an assault to have occurred, as an assault charge may arise from an attempt or a threat where the offender has, or appears to have, the ability to carry out the assault. Assault may also arise if an offender uses light, heat, electricity, odours, gas or any substance that causes injury or personal discomfort to another person.
Types of Assault
There are five main types of assault charges in Australia. These are:
- common assault
- assault occasioning bodily harm
- unlawful wounding
- grievous bodily harm, and
- sexual assault.
The nature of the offence, the circumstances in which it occurred and the type of injury sustained will determine the charge that is laid. In some circumstances, the identity of the victim will also determine the appropriate charge.
Common assault is the most frequent assault charge in Australia, and can result from a simple scuffle or argument. You can be charged with common assault if during an argument you threatened another person, or they received minor injuries from a push, shove, hit, or other contact. Spitting on another person or throwing an object at a person are also classed as common assault.
The penalty for a common assault will differ according to factors such as the state or territory in which it occurs, its severity, the extent of any harm, and the past criminal history of the offender.
Assault Occasioning Bodily Harm
An assault occasioning bodily harm charge arises when the person who is attacked suffers an injury, such as bruising or swelling. Generally, the injury will be one which is severe enough to require medical treatment or time off work.
If the offence involved the use of a weapon, or the threat of a weapon, then the charge can be upgraded to aggravated assault occasioning bodily harm.
If the assault caused the breaking or penetration of the skin which normally results in bleeding then you may be charged with unlawful wounding. If the outer skin is broken, but the injury hasn’t penetrated through the outer layer, then this cannot be classed as unlawful wounding. Normally medical evidence would be provided of the injury sustained to justify the charge.
Grievous Bodily Harm
Grievous bodily harm is a very serious form of assault which arises when the person attacked loses a distinct part of an organ, or suffers serious disfigurement or an injury that if left untreated would endanger the person’s life or cause permanent injury. This can include broken teeth or bones through to more life endangering injuries such as a head injury or severe internal bleeding.
A serious assault charge occurs when a public officer or police office is assaulted in the line of duty. A public officer includes a transit officer, health service employee, correctional officer, or a child protection officer.
The charge may arise in circumstances including where a person bites or spits on the officer, or pretends to be armed with a dangerous weapon. The charge can also result from assaulting a person who relies on a guide, hearing or assistant dog, is in a wheelchair, or is over 60 years of age.
A sexual assault occurs when someone is touched inappropriately, forces someone to commit an act of gross indecency, or forces someone to witness an act of gross indecency. Gross indecency is an act which doesn’t result in penetration, such as watching someone masturbate, or forcing someone to touch their genitals.
Rape is the most serious form of sexual assault in which intercourse occurs without consent. Aggravated sexual assault occurs when a weapon is used, or threatened to be used, during the offence.
Penalties for Assault Offences
The penalties for the various types of offences vary depending on the nature of the offence and the offender’s criminal history. However, all carry a possible term of imprisonment with some being more than 10 years. The length of imprisonment varies between the different states and territories in Australia.
Other sentencing options are available for some assault offences such as fines, good behaviour bonds, probation, community correction orders, or a suspended sentence.
The Legislation that governs assault offences differs in each state. In Queensland, the definitions and penalties for assault charges are located in chapters 30 and 32 of the Criminal Code 1899. Divisions 6 and 9 of the Crimes Act 1900 govern offences against a person in New South Wales.
In Victoria, section 31 of the Crimes Act 1958 outlines the types of assault offences with which a person can be charged. Assault offences in Western Australia are defined in Part V of the Criminal Code 1913, and in South Australia, they are found in Part 3 Division 7 of the Criminal Law Consolidation Act 1935.
The Criminal Code 1924 in Tasmania sets out assault offences in Parts IV and V, and the Criminal Code of the Northern Territory sets them out in Part VI, Division 5. In the ACT, assault offences are found in the Crimes Act 1900, Parts 2 and 3.