In Victoria, there is a range of offences involving assaults on police or other emergency worker. While offences that do not result in injury can be dealt with by way of non-custodial sentences, the more serious offences attract a mandatory minimum term of imprisonment. A term of imprisonment can only be avoided for these offences if the defendant can show that there is a “special reason” why imprisonment should not be imposed.
What assaults on police offences exist?
Simple assaults on police or emergency workers are governed by Section 31 of the Crimes Act 1958. Section 31 covers the followingS five situations:
1. Assaulting or threatening to assault a person with intent to commit an indictable offence (it should be noted that this offence does not apply to emergency workers);
2. Assaulting or threatening to assault an emergency worker on duty (or person lawfully assisting an emergency worker on duty);
3. Resisting an emergency worker on duty (or person lawfully assisting an emergency worker on duty);
4. Obstructing an emergency worker on duty (or person lawfully assisting an emergency worker on duty);
5. Assaulting or threatening to assault a person with intent to resist or prevent arrest.
What must be proved?
To prove an offence under Section 31 where the victim is an emergency worker, police must prove the following:
1. The complainant was a police officer (or other emergency worker);
2. The complainant was “on duty”. This means that they must have been acting lawfully, performing the duties or exercising the powers of a police officer (or other emergency worker);
3. The accused knew that the complainant was or probably was a police officer (or other emergency worker);
4. The accused applied force to the body of the complainant;
5. The accused applied force to the complainant’s body with an intention to either injure the complainant, inflict pain, cause discomfort, cause damage, cause insult or deprive the complainant of liberty;
6. The accused’s actions resulted in the complainant being either injured, caused pain, caused discomfort, caused damage, insulted or deprived of liberty;
7. The application of force was without lawful excuse. A lawful excuse would be self-defence against a worker acting outside the scope of his or her lawful duties.
All of the above ‘assault on police’ offences attract a maximum penalty of five years imprisonment. Assaults are indictable offences and as such may be heard in the County Court, unless parties consent to the matter being dealt with by the Magistrates Court. The maximum penalty that can be imposed for a single count of assault in the Magistrates Court is two years imprisonment.
Offences involving injury or serious injury
The above charges of assaults on police are generally laid only where the complainant suffers minimal injuries (such as bruising only) or no injuries. Where the alleged conduct causes injury or serious injury, the offender is more likely to be charged under one of the following provisions in the Crimes Act:
1. Intentionally causing serious injury in circumstances of gross violence (maximum 20 years of imprisonment) (Section 15A);
2. Recklessly causing serious injury in circumstances of gross violence (maximum 15 years of imprisonment) (Section 15B);
3. Intentionally causing serious injury (maximum 20 years of imprisonment) (Section 16);
4. Section 17 of the Crimes Act 1958 – Recklessly causing serious injury (maximum 15 years of imprisonment);
5. Intentionally or recklessly causing injury (maximum 10 years imprisonment if intentionally caused and maximum 5 years of imprisonment if recklessly caused) (Section 18).
For offences that do not attract mandatory sentencing, courts can impose any penalty they considers suitable, taking into account the nature of the offence and the defendant’s criminal record or prior good character, as long as the penalty does not exceed the legislatively prescribed maximum sentence. However, Section 10AA of the Sentencing Act imposes a regime of mandatory minimum sentences for assaults on police or emergency workers that result in injury.
Mandatory sentencing provisions
The below table shows the minimum non-parole periods stipulated by the Sentencing Act for violent offences against emergency workers.
|Offence||Section||Mandatory minimum non-parole period|
|Intentionally or recklessly causing serious injury in circumstances of gross violence||Section 15B||5 years|
|Intentionally causing serious injury||Section 16||3 years|
|Recklessly causing serious injury||Section 17||2 years|
|Assault||Section 18||6 months|
In the case of young offenders (offenders aged under 21), these periods are to be served in a Youth Justice Centre.
Are there any exceptions?
The mandatory minimum non-parole periods prescribed by the Sentencing Act must be imposed provided the court does not find there is a “special reason” why they are not appropriate. Courts can currently make a finding of “special reason” under several circumstances. If the offender was between the ages of 21 and 28 at the time of the offence, he or she may argue psychosocial immaturity as a special reason. Impaired mental functioning can also be argued as a reason why the mandatory minimum penalty should not apply. As the law currently stands, drug and alcohol use and/or addiction can be relied upon as part of an argument of impaired mental functioning.
The Victorian government has recently indicated that “special reasons” will be overhauled in an attempt to crack down on assault on police and emergency workers. Psychosocial immaturity and impaired mental functioning due to alcohol or drug use may not be available as “special reasons” in the future.
If you have been charged with an offence against an emergency worker, it is important to obtain legal advice at an early opportunity to discuss any possible defences or special reasons that may apply. Please contact Go To Court Lawyers for an obligation-free assessment of your situation.
By Deike Kemper, Solicitor