Assault Police (NSW)

In New South Wales, the Crimes Act 1900 contains offences involving assaults on police officers and other offences against police such as hindering police and obstructing police. These offences all carry a maximum penalty of imprisonment. This page deals with assault police offences in New South Wales.

Assault police charges are among the most serious criminal offences a person can face, with significant consequences that can impact employment, travel, and personal reputation. The NSW legal system treats these offences with particular severity due to the vital role police officers play in maintaining public safety and order. Understanding your rights and the legal framework surrounding these charges is crucial if you find yourself facing such allegations.

The offence of assault police

Under section 60 of the Crimes Act 1900, it is an offence to hinder, resist, assault, wound or cause grievous bodily harm to a police officer. These offences are committed on a police officer if the victim is a police officer acting in the course of their official duties or if the offence is carried out as a consequence of, or in retaliation for, something that they have done in the execution of their official duties or because they are a police officer.

The provision sets out different maximum penalties that apply to each of these offences. The penalties range from 12 months imprisonment for hindering or resisting police, to 2 years imprisonment for assault, 5 years for wounding, and up to 12 years imprisonment for causing grievous bodily harm to a police officer.

Elements of assault police charges

For the prosecution to successfully prove an assault police charge, they must establish several key elements beyond reasonable doubt. First, they must prove that the defendant intentionally or recklessly applied force to the police officer or caused the officer to apprehend immediate violence. Second, they must demonstrate that the victim was indeed a police officer at the time of the incident. Third, the prosecution must show that the officer was acting in the execution of their duty when the assault occurred.

Aggravated assault on police

Under section 60(2) of the Crimes Act 1900, assault police charges become more serious when committed in circumstances of aggravation. These circumstances include being armed with a dangerous weapon, being in company with others, or causing actual bodily harm during the assault. Aggravated assault on police carries a maximum penalty of 5 years imprisonment, significantly higher than the 2-year maximum for basic assault police charges.

What actions may amount to assaulting a police officer?

An assault occurs when a person intentionally or recklessly causes another person to apprehend immediate unlawful violence or unauthorised physical contact. Technically, therefore, assault police could consist only of very light physical contact such as a push. In practice, however, a person will usually be charged with assault police if they punch, kick or spit on a police officer. A person who simply makes unwanted physical contact with a police officer is more likely to be charged with the offence of hinder or obstruct police.

It is common for a charge of assault police to arise when someone is arrested and does not comply with the police's instructions, resists the arrest, and also strikes an officer. In this situation, a charge of assault police will often be laid as well as a charge of hindering police.

Common scenarios leading to assault police charges

Assault police charges frequently arise during domestic violence callouts, public order incidents, traffic stops, and drug-related arrests. Intoxication often plays a significant role, with many defendants under the influence of alcohol or drugs at the time of the alleged offence. Other common situations include protests or demonstrations where tensions escalate, nightclub or pub incidents where police intervene, and mental health episodes where individuals may not fully comprehend their actions.

Penalties and sentences for assault police

The penalties for assault police offences in NSW are substantial and reflect the seriousness with which the courts treat these matters. Beyond the maximum statutory penalties, courts consider various factors when determining an appropriate sentence.

Factors affecting sentencing

When sentencing for assault police offences, NSW courts consider numerous factors including the defendant's criminal history, the circumstances of the offence, the degree of violence used, any injuries sustained by the officer, expressions of remorse, and prospects for rehabilitation. First-time offenders may receive more lenient sentences, particularly where the assault was minor and the defendant shows genuine remorse. However, repeat offenders or those who commit serious assaults can expect significant custodial sentences.

Alternative sentencing options

While imprisonment is the maximum penalty, courts have various sentencing options available under the Crimes (Sentencing Procedure) Act 1999. These include good behaviour bonds, community service orders, intensive correction orders, and conditional release orders. The availability of these alternatives depends on factors such as the severity of the offence, the defendant's background, and their likelihood of reoffending.

Defence to assault police charges

A person charged with an assault police offence may have a legal or a factual defence available to them. This may be that:

• The alleged act did not occur;
• The accused was not the person who committed the alleged act;
• The police officer was not acting in their lawful duties;
• The accused was acting under duress;
• The accused was acting out of necessity.

Self-defence considerations

Self-defence can be a complex defence in assault police cases. Under section 418 of the Crimes Act 1900, a person may defend themselves if they believe on reasonable grounds that it is necessary to do so to defend themselves or another person. However, this defence is limited when dealing with police officers acting lawfully in their duties. The force used must be proportionate to the threat perceived, and the belief in the need for self-defence must be reasonable in the circumstances.

Court procedures and legal process

Assault police charges typically begin in the Local Court, though more serious matters involving wounding or grievous bodily harm may be dealt with in the District Court. The legal process involves several stages including the first mention, case conference, and hearing or trial.

Plea negotiations and case conferences

Many assault police cases are resolved through plea negotiations during case conferences. These discussions between defence lawyers and prosecutors can result in charges being withdrawn, downgraded, or facts being agreed upon to achieve a more favourable outcome. Early legal representation is crucial in these negotiations as experienced criminal lawyers can identify weaknesses in the prosecution case and negotiate from a position of strength.

Murder of police officer

Under section 19B of the Crimes Act 1900, a court must impose a sentence of imprisonment for life if the murder was committed:

• While the police officer was executing his or her duties; or
• And a consequence of or in retaliation for actions done in execution of their duty; and
• The offender knew or ought reasonably to have know that the victim was a police officer; and

A person sentenced under this provision must serve their sentence in prison for the