Assault Police (Tas)

In Tasmania, there is both a summary offence and an indictable offence of assault police. The summary offence is dealt with in the Magistrates Court. The indictable offence carries a longer maximum penalty and must be finalised in the Supreme Court. This page deals with assault police offences in Tasmania, providing comprehensive information about the charges, penalties, court procedures, and available defences for those facing these serious criminal allegations.

Assault police charges are treated with particular severity in the Tasmanian criminal justice system, reflecting the importance of protecting law enforcement officers while they carry out their duties. Understanding the distinction between summary and indictable assault police offences is crucial for anyone facing these charges, as the court process, potential penalties, and legal strategies can vary significantly between the two types of offences.

Indictable offence of assault police

Legal Framework and Elements

Under section 114 of the Criminal Code 1924, a person commits a crime if they assault, resist or wilfully obstruct a police officer in the execution of his duty, or if they assault, resist or wilfully obstruct any other person lawfully assisting a police officer.

It is also offence under this provision to assault, resist or wilfully obstruct a person who is lawfully arresting a person. The prosecution must prove beyond reasonable doubt that the accused committed the physical act and that the police officer was acting within their lawful authority at the time of the alleged incident.

Penalties and Sentencing Considerations

The maximum penalty for either of these offences is 21 years imprisonment, which is the standard maximum penalty for indictable offences in Tasmania. However, courts consider various factors when determining an appropriate sentence, including the severity of the assault, any injuries caused, the circumstances surrounding the incident, and the accused's criminal history and personal circumstances.

Summary offence of assault police

Scope of Summary Offences

Under section 34B of the Police Offences Act 1935, a person commits an offence if they:

• Assault, resist or wilfully obstruct a police officer in the execution of his duty,
• Assault, resist or wilfully obstruct a person assisting a police officer in the execution of his duty;
• Assault, resist or wilfully obstruct a person lawfully arresting a person.

It is also an offence under this section to:

• threaten, intimidate, or use abusive language to a police officer in the execution of his duty or to someone assisting a police officer;
• to instigate or incite another person to commit an offence under this provision.

Penalties for Summary Offences

This offence is punishable by a maximum of three years imprisonment or a fine of 100 penalty units. The summary offence provides prosecutors with flexibility to charge less serious incidents of assault police through the Magistrates Court, where matters can be resolved more quickly and with less severe penalties than indictable offences.

Key Differences Between Summary and Indictable Assault Police Charges

Prosecutorial Discretion

The decision to charge an accused with either the summary or indictable version of assault police depends on various factors including the severity of the alleged conduct, the extent of any injuries, whether weapons were involved, and the overall circumstances of the incident. Prosecutors exercise discretion in determining which charge is most appropriate based on the available evidence and the public interest.

Court Procedures and Timeline

Summary offences are resolved entirely within the Magistrates Court system, typically resulting in faster resolution of matters. Indictable offences require committal proceedings and must be finalised in the Supreme Court, involving a more complex and lengthy legal process. The choice of charge can significantly impact the time and resources required to resolve the matter.

What Constitutes "Execution of Duty"

Lawful Police Activities

For an assault police charge to succeed, the prosecution must establish that the officer was acting in the execution of their duty at the time of the alleged incident. This includes activities such as making lawful arrests, conducting investigations, executing search warrants, maintaining public order, and responding to emergency situations. The concept extends to situations where police are exercising their powers under various Tasmania statutes.

Unlawful Police Conduct

If a police officer is acting outside their lawful authority or engaging in unlawful conduct, they may not be considered to be acting in the execution of their duty. This can form the basis of a defence to assault police charges. Examples might include excessive force, unlawful detention, or acting beyond the scope of their powers under relevant legislation.

Pleading guilty to an indictable offence

Supreme Court Process

When a person is charged with the indictable offence of assault police, the matter must be finalised in the Supreme Court. The matter will go through a number of procedural stages in the Magistrates Court (or Children's Court if the accused is under 18) before it can be committed to the higher court for finalisation.

The prosecution will need to supply the defence with a brief of evidence. The evidence against the accused will then have to be tested during a committal procedure. If there is sufficient evidence to support a conviction, the matter will be committed to the Supreme Court. If there is insufficient evidence, it will be dismissed.

Sentencing Factors

If the accused pleads guilty in the Supreme Court, they will be sentenced based on:

• The objective seriousness of the offence including its impact on the victim;
• Their personal circumstances;
• Their criminal history.

Additional factors include the accused's prospects for rehabilitation, expressions of remorse, early guilty plea, and any mitigating circumstances surrounding the offence. The court will also consider general and specific deterrence principles when imposing sentence.

Pleading guilty to a summary offence

Magistrates Court Procedure

If a person is charged with the summary offence of assault police, the matter will be finalized in the Magistrates Court (or Children's Court if they are under 18). The process is generally more streamlined than indictable matters, with the possibility of resolution in fewer court appearances.

Pre-Plea Considerations

Before pleading guilty to any offence, a person should ensure they are fully aware of:

• The elements of the offence
• The alleged facts
• The maximum penalty and the likely penalty range in their circumstances;
• Any available defences.

Legal representation is strongly recommended to ensure all options are properly considered and the accused understands the full consequences of entering a guilty plea.

Pleading not guilty to assault police