In New South Wales the various offences of assault are set out in the Crimes Act 1900. Assaults are divided into two general categories: common assault and aggravated assaults. In New South Wales, an assault is not only the crime of hurting someone without a lawful purpose but it can also be any act, but not a failure to act, which causes another person to fear immediate and unlawful violence.
For a person to be found guilty of an assault the prosecution needs to prove two things: firstly, that the defendant used or threatened to use physical force against another person that was or would be unlawful, and secondly, that the physical force was either intentional (rather than accidental) or reckless. An injury is caused recklessly if the person realised that harm may possibly be caused by their actions, but went ahead anyway.
Common assaults are charged under s 61 of the Crimes Act 1900 and are usually dealt with by a Local Court; however the prosecution can elect to have them dealt with in the District Court.
An assault is a Common Assault when it results in no injury, or in injuries that are not serious and require very little medical treatment. Common assault can also include threats of violence, if the person making the threat has the ability to carry them out. A general threat that something might happen in the future is not enough to be an assault. If, however, the threats create an immediate fear that continues, then that may constitute an assault. In New South Wales, common assault carries a maximum sentence of two years imprisonment or fines of up to $2,200.00.
Aggravated assault is a term used to cover a range of serious assault offences. Sections 32 to 54 of the Crimes Act 1900 deal with most of the aggravated assault offences. These assaults are categorised by the degree of injury that is caused.
Actual bodily harm
Assault occasioning actual bodily harm is dealt with in s 59 of the Crimes Act 1900. What constitutes “actual bodily harm” has been decided by the courts in case law. It includes any hurt or injury that interferes with the health or comfort of the person assaulted. It can also include a recognisable psychiatric illness, such as a severe depressive illness or anxiety disorder that is caused by the assault. As with common assault, the prosecution can elect to have it dealt with in the District Court. It carries a maximum penalty of 7 years in prison.
Grievous bodily harm
In New South Wales, the offences relating to grievous bodily harm and wounding and the penalties that they carry are set out in the Crimes Act 1900 between sections 33 and 54. The word grievous means really serious, but the injury does not need to be permanent, or long lasting or life threatening.
It also includes the termination of a woman’s unborn child, whether or not she suffers any other injury, any permanent or serious disfiguring of a person, and causing any person to contract any grievous bodily disease.
Wounding is dealt with in section 33 or section 35 of the Crimes Act 1900. Wounding means that more than just the top layer of skin is broken by the act.
Penalties for Wounding and Grievous Bodily Harm
Wounding and Grievous Bodily Harm offences will almost always result in jail sentences on conviction. The maximum penalties range between 10 years and 25 years imprisonment. They are all strictly indictable offences and cannot be heard in a Local Court, but must be committed to a District or Supreme Court. Most also carry Standard Non-Parole periods, which are the minimum times that are to be spent in custody without parole.
Lawful Excuse Defence
The Lawful Excuse Defence is available in circumstances where a person comes into physical contact with another (sometimes causing pain), and there is agreement to the physical contact, such as a doctor or dentist treating a patient or in the playing of a sport. However, in sport, if the player were to make contact outside of the rules of the sport – such as an illegal tackle- and that results in the other player being injured, then it might constitute an assault.
Actions that might constitute an assault at law will not constitute an assault if there is consent to them, such as in the playing of sports (the “consent defence”). However, the consent defence does not apply in unlawful situations or situations which the degree of harm is very severe.
Lawful Chastisement Defence
In New South Wales, parents have always been entitled to use reasonable and moderate force to physically discipline their children. In the year 2000, s 61AA was put into the Crimes Act 1900 and sets out what is lawful when physically punishing a child. The level of force used must be reasonable, must not be to the head or neck and must only last for a short time. A useful article which discusses what is acceptable and why is published by the Australian Institute of Family Studies here
Self-defence is outlined in section 418 of the Crimes Act 1900. It is a defence to the charge if the person believes that their actions were necessary to defend either themselves or another person, or to prevent or stop the unlawful deprivation of their liberty or that of another, or to protect property from being taken, destroyed or damaged unlawfully, or to prevent or stop a criminal trespass. The action they take must be a reasonable response in the circumstances as they understand them. If self-defence is raised as a defence to a charge of assault, then it is up to the prosecution to prove that the person was not acting in self-defence by proving that they did not genuinely believe that it was necessary to do what they did, or that what they did was not reasonable in response to the danger as they understood it.
The defence of Intoxication does not apply for most types of assault offences. It only applies for offences which are set out in section 428B of the Crimes Act 1900, for example maliciously inflict grievous bodily harm with intent. The court can take into account how intoxicated the person who committed the offence was when deciding whether the police have proved they formed the intention to bring about a specific result. Intoxication is not a defence if the person became intoxicated to help them commit the offence.
GTC's solicitor Shirley Casey represented an adult male accused of Aggravated Assault Occasioning Bodily Harm, against his wife. This was a criminal charge that arose from a domestic violence matter.
Despite Shirley's best attempts to negotiate with the prosecution, the matter went to trial. After extensive legal argument, and the presentation of detailed evidence to the Court, the Defendant was acquitted of the offence.
This result was achieved due to the solicitor's thorough preparation of all aspects of the case and being completely ready to face the Court on the trial day. Shirley paid careful attention to the client’s personal circumstances and collected evidence in support of the case. The client's success in this matter demonstrates the significant impact that a well-prepared and professional solicitor can have on the outcome of a serious offence matter.
Our solicitor Jona Villanueva represented a 34-year-old at the Werribee Magistrates Court on 18 October 2017 in relation to the following charges:
- Intentionally causing injury;
- Recklessly causing injury;
- Unlawful assault with a weapon; and
- Unlawful assault.
The case involved an offence that was committed from an altercation at a licensed venue in Werribee. The accused was charged with the offences as the victim suffered minor injuries to his skull and the Police believed there was a weapon involved.
Our representation in Court resulted in the withdrawal of the first three charges and the accused being sentenced to an Undertaking of Good Behaviour on the charge of unlawful assault.
This was achieved by preparing for the case thoroughly and the successful summary case conference with Prosecution on the day of Court. It was argued that the victim’s injuries did not correlate to a weapon being used. Furthermore, the minor injury sustained by the victim was not from a reckless behaviour by the accused.
This case illustrates the importance of quality representation and the value of a solicitor like Jona Villanueva who will review your Brief of Evidence and examine the background to the offence to achieve the best possible outcome.
Our solicitor Kristen Moore represented a 21-year-old man at the Werribee Magistrates Court in relation to seven charges, including four charges of unlawful assault, one charge of recklessly causing injury, one charge of intentionally causing injury and one charge of making affray.
The case involved a dispute that erupted in a public space, whereby the client entered into an altercation with an unknown member of the public.
Our representation resulted in the police prosecution unit agreeing to withdraw the charges of unlawful assault and the charge of intentionally causing injury prior to the matter being heard in court. When the matter was heard in court, Ms Moore made submissions in relation to the remaining charges of affray and recklessly causing injury, paying particular attention to the age of her client and the support that he was receiving from his family to ensure that an incident of this nature would not occur again. Upon hearing Ms Moore’s submissions, the Court ordered that her client serve a one-year good behaviour bond.
This is a particularly good outcome, noting that the most serious of the charges initially faced by her client carried a maximum term of up to 10 years in prison.
This result was achieved by preparing the case thoroughly, we paid careful attention to the age of the offender, and his actions to distance himself from similar offending since the incident and his prospects for the future.
This was assisted by our office ensuring that he had quality supporting documentation for the court and also paying particular attention to his instructions and the support being offered by his family, allowing our solicitor to convey her client’s situation to the court and persuade the court that further intervention from the justice system was not required.
This case illustrates the importance of quality representation and the value of a solicitor like Kristen Moore who will pay particular attention to her client’s circumstances, the actions that her clients have taken since the date of the offending, their family and social support structures so that the court is given a full picture of the circumstances of her client and attempt to persuade the court that further intervention is not required.
Our solicitor Sarah Rana represented a 30-year-old female at the Sutherland Local Court on 8 November 2017 in relation to charges of Stalk/Intimidate (Domestic Violence Related) and Assault Occasioning Actual Bodily Harm.
The case involved a domestic violence dispute between our client and her mother-in-law which resulted in actual bodily harm being occasioned to the mother-in-law by way of extensive bruising. Our client made partial admissions to the police before obtaining legal representation.
Despite partial admissions made to the police, our representation resulted in the Court withdrawing the charge of Stalk/Intimidate (Domestic Violence Related) and not recording a criminal conviction in relation to the charge of Assault Occasioning Actual Bodily Harm.
That result was achieved by negotiating with the Prosecution in relation to the charges and having the police facts amended to reflect our client’s version of events. The result was also achieved by persuasive oral submissions on sentence and preparing our client’s subjective case thoroughly.
This case illustrates the importance of quality representation and the value of a solicitor like Sarah Rana who will ensure that your matter is presented to the Court the best manner possible.
Our solicitor Sarah Rana represented two clients, a couple both aged 27 years of age at the Parramatta Local Court in relation to charges of aggravated sexual assault.
The case involved very serious allegations of our clients drugging and then sexually assaulting a woman in a hotel room. Police investigators had also recorded telephone conversations between our clients after the alleged event where they discussed catching a sexually transmitted disease from the alleged victim. After hearing these conversations, the police apprehended our clients and held them in custody.
Despite the seriousness of the allegations and the strong opposition to our bail application by the police, our representation resulted in the Court granting our release application for both clients.
That result was achieved by preparing our case thoroughly and persuasive oral submissions in respect of the release applications which pointed out the weaknesses in the Prosecution’s case. Both the Magistrate and the Prosecution conceded after our submissions that the case against our clients was not strong.
This case illustrates the importance of quality representation and the value of a solicitor like Sarah Rana who will ensure that your case is argued persuasively and that the court looks at all evidence in your favour when determining a result.
Watch the video below to know more about the Assault Charges in Australia: