Common Assault in Victoria

In Victoria, there is a range of criminal offences involving assaults. This includes common assault, assault with intent to commit an indictable offence and assault on an emergency worker. This page deals with common assault in Victoria, which is one of the most frequently prosecuted summary offences in Victorian criminal courts. Understanding the elements of this offence is crucial for anyone facing such charges, as the consequences can extend beyond criminal penalties to impact employment, visa applications, and personal reputation.

Legislation governing common assault in Victoria

Common assault is governed by section 23 of the Summary Offences Act. It carries a maximum penalty of three months imprisonment or a fine of 15 penalty units. The legislation is complemented by common law principles that have developed through court decisions over many years. The Crimes Act 1958 (Vic) also contains relevant provisions for more serious assault charges, while the Summary Offences Act 1966 (Vic) specifically addresses common assault as a summary offence.

Related Victorian assault legislation

While common assault is covered under the Summary Offences Act, Victoria's criminal law includes several other assault-related offences. These include intentionally causing injury under section 18 of the Crimes Act 1958 (Vic), recklessly causing injury under section 24, and assault with intent to commit an indictable offence under section 393 of the Crimes Act 1958 (Vic).

What is a common assault?

A common assault does not require the victim to suffer any injury. It does not even require there to be any physical contact between the offender and the victim. This broad definition means that many actions that people might not consider serious can constitute common assault under Victorian law.

A person is guilty of common assault in Victoria if they intentionally or recklessly:

• Touch another person without the consent of the other person and without a lawful excuse;
• Cause another person to apprehend immediate physical contact without the consent of the other person and without a lawful excuse.

A common assault may consist of pushing, punching or slapping a person. It may also consist of an act that doesn't involve physical contact, such as raising a fist at someone and causing them to think they were about to be hit.

Elements the prosecution must prove

For a successful common assault prosecution, the Crown must prove beyond reasonable doubt that the accused either made physical contact without consent or caused the victim to apprehend immediate unlawful physical contact. The prosecution must also establish that the act was done intentionally or recklessly, without the victim's consent, and without lawful excuse.

Intention or recklessness?

Victorian criminal law recognises that common assault can be committed either intentionally or recklessly. This distinction is important as it broadens the scope of conduct that can constitute an offence.

An example of a common assault committed intentionally is where a person punches another person during an argument. The accused deliberately chose to make physical contact knowing it was without consent.

An example of a common assault committed recklessly is where a person throws an object towards a group of people, knowing that it may hit someone. Here, the person may not have intended to hit anyone specifically, but they were aware of the substantial risk that their actions could cause unlawful contact.

Understanding recklessness in Victorian law

Recklessness requires more than mere negligence or carelessness. The prosecution must prove that the accused was aware there was a substantial risk that their conduct would result in unlawful physical contact or cause someone to apprehend such contact, and that it was unreasonable to take that risk in the circumstances.

Penalty for common assault in Victoria

Although common assault carries a maximum penalty of three months imprisonment, courts may impose a non-custodial sentence. This may be a fine, a good behaviour bond or a community corrections order.

Victorian magistrates consider various factors when determining appropriate penalties, including the circumstances of the offence, the impact on the victim, the accused's prior criminal history, and their prospects for rehabilitation. First-time offenders often receive more lenient sentences, particularly where the assault was at the lower end of seriousness.

Alternative sentencing options

Courts may also consider diversion programs, particularly for first-time offenders. These programs allow accused persons to avoid a criminal conviction by completing certain requirements such as attending counselling, performing community service, or making a donation to charity.

Common assault court process in Victoria

When charged with common assault in Victoria, the matter typically begins with either an arrest or the service of a court attendance notice. The accused must then appear before the Magistrates' Court on the specified date. During the first hearing, the accused will be asked to enter a plea of guilty or not guilty.

Plea options and consequences

If pleading guilty, the matter may proceed to sentencing immediately or be adjourned for the preparation of pre-sentence reports. If pleading not guilty, the matter will be listed for a contested hearing where both prosecution and defence will present their evidence before a magistrate.

Jurisdiction

Common assault is a summary offence and is dealt with in the Magistrates Court or Children's Court. Summary offences are less serious criminal matters that are heard by a magistrate sitting alone, without a jury. The Magistrates' Court handles the vast majority of criminal matters in Victoria, including common assault charges.

Defences to common assault in Victoria

A person charged with common assault in Victoria, may have a legal defence available to them. Some of these are summarised below. An accused person may also rely on a factual defence, such as an alibi. The availability and strength of any defence will depend on the specific circumstances of each case.

The defence of self-defence

A person is not guilty of an offence if they commit an act in self-defence. If a court is satisfied that the accused reasonably believed that their actions were necessary in self-defence and that their actions were proportionate to the threat they perceived, it will find the accused not guilty. This defence is codified in section 322K of the Crimes Act 1958 (Vic).

The defence of duress

A person is not guilty of common assault if they acted under duress. A person acts under duress if they commit an act only because of fear that a threat being made by another person will be carried out if they do not comply with the other person's demands. The threat must be of death or really serious injury to the accused or another person.

The defence of reasonable chastisement

A person is not guilty of an assault against a child if they were punishing the child for misbehaviour and:

• They were the parent or acting for the parent of the child;
• The level of force used was reasonable having regard to the age, maturity and health of the child and the nature of the misbehaviour.

The defence of immature age

A person is not guilty of an offence if they were below the age of criminal liability when the offence was allegedly committed. The age of criminal liability is ten in Victoria. A person under 14 can be found guilty of an offence only if the court is satisfied that they had the capacity to understand the nature of their actions.