Assault in Sydney
Various assault offences are set out in the Crimes Act 1900. Assault in Sydney and elsewhere in New South Wales is divided into common assaults and aggravated assaults. An assault in Sydney can consist of hurting someone without a lawful purpose or it can be committing an act which causes a person to fear violence, even in the absence of physical contact.
For a person to be found guilty of an assault in Sydney or elsewhere in NSW the court must be satisfied beyond a reasonable doubt that the accused used or threatened physical force against the victim without lawful excuse and that the physical force or threat was either intentional or reckless.
Common Assault in Sydney
Common assault is an offence under section 61 of the NSW Crimes Act 1900. It is an indictable offence that is generally dealt with summarily by the Local Court or Children’s Court; however, the prosecution can elect to have the matter dealt with by the District Court.
A common assault is an assault where the victim is not injured or sustains injuries that do not require medical intervention. A common assault can also consist of a threat of violence, where the accused had the ability to carry it out. A general threat that something will happen in the future does not amount to assault. If a threat creates an immediate fear in the victim it may constitute an assault. Common assault in Sydney and NSW carries a maximum sentence of imprisonment for two years or a fine of up to $2,200.
Aggravated assaults, which are categorised according to the degree of injury caused, are set out in sections 32 to 54 of the NSW Crimes Act 1900.
Assault Causing Actual Bodily Harm
Assault occasioning actual bodily harm under section 59 of the NSW Crimes Act 1900 is an assault where any hurt or injury is inflicted that interferes with the victim’s health or comfort. This includes recognisable psychiatric illnesses as well as physical injuries.
As with common assault, the prosecution can choose to have assault causing actual bodily harm dealt with in the District Court, where it carries 7 years imprisonment.
Assault Causing Grievous Bodily Harm
Offences relating to wounding and grievous bodily harm are set out in sections 33 to 54 of the Crimes Act 1900. Grievous bodily harm means really serious injury. However, it does not have to be permanent, long-lasting or life-threatening.
Grievous bodily harm includes:
- the termination of a pregnant woman’s fetus (with or without other injuries);
- any permanent or serious disfiguring; and
- any grievous bodily disease.
Wounding is dealt with under section 33 or section 35 of the NSW Crimes Act 1900. Wounding is an assault that results in an injury where more than the top layer of the victim’s skin is broken.
Penalties For Wounding And Grievous Bodily Harm
A finding of guilt for wounding or grievous bodily harm almost always results in a custodial sentence. The maximum penalties for these offences range from 10 years to 25 years. They are all strictly indictable offences that must be finalised in the Supreme or District or Court. Most of these offences carry standard non-parole periods (the minimum times that must be spent in custody before parole will be considered).
Assault Charges Defences
There are various defences that can be argued in relation to assault offences in Sydney and NSW.
Lawful Excuse Defence
The lawful excuse defence is available where a person comes into physical contact with another person (even where this causes pain), but there has been agreement to the physical contact. Examples of this are where a doctor or dentist is treating a patient or when a person is playing a sport that involves physical contact. However, if the accused was playing sport and made contact contrary to the rules – such as an illegal tackle – and this results in the other player being injured, then this may constitute assault.
Actions that might otherwise constitute an assault will not constitute an assault if the alleged victim consented, such as in the playing of a sport. The consent defence may also be arguable where two or more people are engaging in a fair fight or where someone agrees to be hit or subjected to violent acts in a consensual context.
However, the defence of consent cannot be relied on where the degree of harm suffered amounts to serious harm (for example, a broken bone).
Lawful Chastisement Defence
Parents are allowed to use reasonable and moderate force to discipline their children. Section 61AA of the NSW Crimes Act 1900 sets out what it is lawful to do when physically punishing a child. It states that the level of force used must be reasonable, must not be to the head or neck and must only last a short time.
The defence of self-defence is outlined in section 418 of the Crimes Act 1900. It is a defence to assault if the accused reasonably believed that their actions were necessary to defend themselves or another person, or to prevent or stop an unlawful deprivation of liberty or a criminal trespass.
The accused’s action must have been a reasonable response in the circumstances as he or she understood them at the time. If self-defence is raised, it is up to the prosecution to prove that the accused’s actions were not reasonable in response to the danger they perceived.
The defence of intoxication does not apply to most assaults in Sydney or NSW. The defence of intoxication is only arguable in relation to offences that are set out in section 428B of the Crimes Act 1900, such as maliciously inflicting grievous bodily harm with intent. When dealing with these offences, the court can take into account how intoxicated the accused was when deciding whether they formed the intention to bring about a specific result.
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