In NSW, there are a variety of assault charges. Typically, the nature of the injury suffered, if any, will dictate the type of charge, as will the gravity of the offending act.
Common Assault is punishable by up to two years imprisonment and/or a fine of $5,500 pursuant to section 61 Crimes Act 1900 (NSW). The Prosecution must prove each of the following essential elements to substantiate this charge:
Assault
An assault is any act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence. An assault can be committed without touching another person, however, there must be an act, and an omission will not amount to an assault. Furthermore, any act which might otherwise be considered lawful, can be rendered unlawful should the act accompany a hostile intent. Assault also includes battery, which is the intentional or reckless direct application of force to the person of another.
Intention
An assault can be committed recklessly where you foresee the likelihood of inflicting injury or fear and ignore the risk. It must be proven that you foresaw that your conduct might induce fear and mere inadvertence to the risk is not sufficient. The word “reckless” should be given its normal meaning as being not caring whether harm occurred or not.
It is not sufficient that the threat raises an apprehension that violence may be inflicted on another at some future time. For example, threats of a general nature made on the telephone do not to amount to an assault. There can be an assault, however, where the fear is of relatively immediate violence of a continuing nature during an unlawful detention.
Types of Penalties
Your sentence depends upon several factors, including the seriousness of the offending, your criminal history (or lack thereof), and perhaps most importantly, the jurisdiction your matter is determined. If your matter is finalised in the Local Court before a Magistrate, the maximum penalty that can be imposed is two years imprisonment and/or a fine of $5,500.
This type of offending is at the lower end of the scale of seriousness, and as such, it is far more likely that the Magistrate will entertain an application for a section 10 Good Behaviour Bond, without conviction (referred to as a Conditional Release Order ‘CRO’), if a strong subjective case is presented on your behalf. The most common penalty for offences of Common Assault is a section 9 Good Behaviour Bond with conviction (also referred to as a CRO).
The more serious the nature of the offending and the less persuasive the subjective features, will result in a Community Correction Order (‘CCO’), with conviction, or even an Intensive Correction Order (‘ICO’). These types of penalties are like a Good Behaviour Bond, however, the Magistrate can impose more substantial conditions, such as community service and home detention.
If you breach a CRO or CCO, you will be brought before the Magistrate that sentenced you and potentially be re-sentenced to a more serious penalty. If you breach an ICO, the Parole Board will determine whether to order you serve the remainder of the period in full-time custody. This is because an ICO is a sentence of imprisonment ordered to be served in the community.
Possible Defences
The most common defences to offences of Common Assault:
The law states that:
and the conduct is a reasonable response in the circumstances as he or she perceives them.
Once self-defence is raised, the onus lies with the Prosecution to negative self-defence beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in self-defence. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Duress involves circumstances where you have been forced to commit a crime against your will, whether it be by way of threat, intimidation, or some other form of coercion. The threat must be so serious that it would have caused an ordinary person of like firmness in your situation to act in the same way. Furthermore, the threat must be the operative cause of your actions. In other words, if you are not worried about the threat at the time of the commission of the offence, or some other factor influences your decision to commit the crime, duress may not be established. Finally, the threat must be continuing. What this means is that if there is an opportunity at some point for you to obviate the threat, by reporting it to the police for example, duress may not be accepted.
Once duress is raised, the onus lies with the Prosecution to negative duress beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in duress. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
For necessity to be established, the following must exist at the time of the commission of the offence:
As is the case with self-defence, the onus lies with the Prosecution to negative necessity beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting out of necessity. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Lawful correction relates to the application of physical force to a child in the context of discipline. It can only be raised by the parent of the child, or person acting for a parent of the child, in circumstances where the physical force was reasonable having regard to the age and characteristics of the child in conjunction with the nature of the alleged misbehaviour. The physical force cannot be to any part of the head or neck of the child or any other body part in such a way as to be likely to cause harm which last more than a short period.
Where this defence is raised, the correct approach is for the court to first determine whether the offences charged are otherwise established beyond reasonable doubt, and it they are, to determine whether the defence is established on the balance of probabilities.
To establish the offence of Assault Occasioning Actual Bodily Harm, pursuant to section 59 Crimes Act 1900 (NSW), the Prosecution must prove the following ‘essential elements’ beyond reasonable doubt:
‘Assault’
An assault is any act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence. An assault can be committed without touching another person, however, there must be an act, and an omission cannot amount to an assault. Furthermore, any act which might otherwise be considered lawful, can be rendered unlawful should the act accompany a hostile intent. Assault also includes ‘battery’, which is the intentional or reckless direct application of force to the person of another.
Intention
An assault can be committed recklessly where you foresee the likelihood of inflicting injury or fear and ignore the risk. It must be proven that you foresaw that your conduct might induce fear and mere inadvertence to the risk is not sufficient. The word “reckless” should be given its normal meaning as being not caring whether harm occurred or not.
It is not sufficient that the threat raises an apprehension that violence may be inflicted on another at some future time. For example, threats of a general nature made on the telephone do not to amount to an assault. There can be an assault where the fear is of relatively immediate violence of a continuing nature during an unlawful imprisonment. It is not necessary for the Prosecution to prove a specific intent to cause actual bodily harm. It is sufficient if you intentionally or recklessly assault the victim and actual bodily harm results.
Actual Bodily Harm
Actual bodily harm is to be given its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim, but such hurt, or injury need not be permanent but must be more than merely transient and trifling. The phrase ‘actual bodily harm’ can include psychiatric injury but does not include emotions such as fear or panic nor states of mind that were not themselves evidence of some identifiable clinical condition. Typical injuries include redness, bruising, broken bones, and swelling.
‘In Company’
If you commit this crime with another person, or people, the maximum penalty increases. This is commonly referred to as ‘in company.’ To establish whether you were in company at the time of the commission of the offence, the Prosecution must establish that you and the other person shared the relevant common purpose for the commission of the offence. In other words, there must be an expressed or implied agreement between you to achieve a common result. A mere coincidence of common actions is insufficient.
Furthermore, although it is not necessary that more than one person threaten or assault the victim, the constructive presence of more than one person is not sufficient. What this means is that a person keeping watch is not ‘in company’. The necessary intent that must be proven is that you knew or expected that the victim would know of the presence of more than one person at the time of the commission of the offence and the ability of more than one person to assist if called upon to do so.
Types of Penalties
Your sentence depends upon several factors, including the seriousness of the offending, your criminal history (or lack thereof), and perhaps most importantly, the jurisdiction your matter is determined. If your matter is finalised in the Local Court, the maximum penalty that can be imposed is two years imprisonment.
Should you or the Prosecution elect to have the matter dealt with in the District Court, the maximum penalty is five years imprisonment pursuant to section 59 Crimes Act 1900 (NSW) and increases to seven years imprisonment if committed in company.
This offence includes a wide spectrum of offending conduct. As such, the type of penalties vary greatly. The Court may consider sentencing you to one or more of the following:
Section 10 Bond
There are three types of section 10 penalties, including:
A section 10(1)(a) bond is a finding of guilt, but the Court does not record a conviction. A bond such as this is usually only given where you have a clear criminal and/or driving record, your offending behaviour is minor, there is little chance of you offending again, and there were mitigating factors that led to the offending. Even if these facts apply to your case, there is no guarantee you will get this type of penalty. However, cogent subjective material and robust submissions on your behalf can be very persuasive to the Court.
A section 10(1)(c) bond involves a finding of guilt, a conviction is recorded, and you can be referred to an intervention program.
A section 10A penalty involves a finding of guilt and a conviction is recorded, but no further action is taken.
CRO
A CRO is a sentence which allows you to remain in the community, but you are supervised by Community Corrections. The Court can decide whether or not to record a conviction. The maximum term of the CRO is two years and may involve conditions such as to be not consume alcohol for the period of the bond. If you breach a CRO, you will be brought before the Magistrate that sentenced you and potentially be re-sentenced to a more serious penalty.
CCO
A CCO is another type of sentence which allows you to remain in the community, but you are supervised by Community Corrections. It typically involves more onerous conditions than a CRO and you will receive a conviction. If you breach a CCO, you will be brought before the Magistrate that sentenced you and potentially be re-sentenced to a more serious penalty.
ICO
If the Court is satisfied that imprisonment is warranted, it can order that you serve the term of imprisonment in the community while subject to the supervision of Community Corrections and conditions such as community service, curfew, or rehabilitation. If you breach an ICO, the Parole Board will determine whether to order you serve the remainder of the period in full-time custody. This is because an ICO is a sentence of imprisonment ordered to be served in the community.
Imprisonment
This offence carries maximum penalty of five- or seven-years imprisonment, depending on the factual circumstances of the offending. However, full-time imprisonment is only reserved for the most serious matters.
Possible Defences
The most common defences to offences of Assault Occasioning Actual Bodily Harm:
The law states that:
and the conduct is a reasonable response in the circumstances as he or she perceives them.
Once self-defence is raised, the onus lies with the Prosecution to negative self-defence beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in self-defence. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Duress involves circumstances where you have been forced to commit a crime against your will, whether it be by way of threat, intimidation, or some other form of coercion. The threat must be so serious that it would have caused an ordinary person of like firmness in your situation to act in the same way. Furthermore, the threat must be the operative cause of your actions. In other words, if you are not worried about the threat at the time of the commission of the offence, or some other factor influences your decision to commit the crime, duress may not be established. Finally, the threat must be continuing. What this means is that if there is an opportunity at some point for you to obviate the threat, by reporting it to the police for example, duress may not be accepted.
Once duress is raised, the onus lies with the Prosecution to negative duress beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in duress. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
For necessity to be established, the following must exist at the time of the commission of the offence:
As is the case with self-defence, the onus lies with the Prosecution to negative necessity beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting out of necessity. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Pursuant to section 33 Crimes Act 1900 (NSW), it is an offence for a person to cause GBH to, or wound, any person with intent to cause GBH. The Prosecution must therefore establish the following ‘essential elements’ beyond reasonable doubt:
GBH
GBH is defined in section 4 Crimes Act 1900 (NSW) as any permanent or serious disfiguring of the person. There is no bright line as to what constitutes a permanent or serious disfiguring. The Court has long held that GBH does not require that the consequences of the injuries are long-lasting or life threatening, however, often the types of injuries which constitute GBH typically involve extensive surgery and the use foreign objects, such as metal plates, to assist with healing or to remain permanently in place.
Wound
‘Wound’ is an injury involving the breaking or cutting of the interior layer of the skin (dermis) and the breaking of the outer layer (epidermis) is not sufficient. An internal haemorrhage will not suffice. A wound may be inflicted by a fist and a split lip is sufficient.
Intent
In considering whether there was an intent to cause GBH, regard may be had to any weapon used or the means employed to inflict the harm. It is erroneous to focus on a particular act of the accused occurring during a violent attack upon the victim, rather the consideration is to whether the intention existed throughout the whole incident. This is an offence of specific intent. What this means is that your level of intoxication can have a bearing upon whether you formed the necessary intent.
If the Prosecution is unable to establish this element, you may be charged with the alternative offence of Recklessly Cause GBH or Wound pursuant to section 35 Crimes Act 1900 (NSW).
‘In Company’
If you commit this crime with another person, or people, the maximum penalty increases. This is commonly referred to as ‘in company.’ To establish whether you were in company at the time of the commission of the offence, the Prosecution must establish that you and the other person shared the relevant common purpose for the commission of the offence. In other words, there must be an expressed or implied agreement between you to achieve a common result. A mere coincidence of common actions is insufficient.
Furthermore, although it is not necessary that more than one person threaten or assault the victim, the constructive presence of more than one person is not sufficient. What this means is that a person keeping watch is not ‘in company’. The necessary intent that must be proven is that you knew or expected that the victim would know of the presence of more than one person at the time of the commission of the offence and the ability of more than one person to assist if called upon to do so.
Types of Penalties
Your sentence depends upon several factors, including the seriousness of the offending, your criminal history (or lack thereof), and perhaps most importantly, the jurisdiction your matter is determined. Cause GBH or Wound pursuant to section 33 Crimes Act 1900 (NSW) can only be dealt with in the District Court. The maximum penalty is 25 years imprisonment, with a standard non-parole period of seven years imprisonment.
A non-parole period is the minimum time that an offender must spend in prison before they are eligible for release. The court must fix a non-parole period that is at least three-quarters of the term of the sentence. A standard non-parole period is a legislative guidepost to be considered when sentencing. It is not mandatory. Often during sentencing, the non-parole period is reduced to account for the subjective circumstances of the offender.
If you are charged with the alternative offence pursuant to section 35 Crimes Act 1900 (NSW), your matter can be finalised in either the Local or District Court. If your matter is determined in the Local Court, the maximum penalty that can be imposed is two years imprisonment.
Should you or the Prosecution elect to have the matter dealt with in the District Court, the maximum penalty is 10 years imprisonment for Cause GBH and seven years imprisonment for Cause Wound. If you are ‘in company’ during the commission of the offence, the maximum penalties increase to 14 years imprisonment for Cause GBH and 10 years imprisonment for Cause Wound.
This offence includes a wide spectrum of offending conduct. As such, the type of penalties vary greatly. The Court may consider sentencing you to one or more of the following:
CRO
A CRO is a sentence which allows you to remain in the community, but you are supervised by Community Corrections. The Court can decide whether or not to record a conviction. The maximum term of the CRO is two years and may involve conditions such as to be not consume alcohol for the period of the bond. If you breach a CRO, you will be brought before the Magistrate that sentenced you and potentially be re-sentenced to a more serious penalty.
CCO
A CCO is another type of sentence which allows you to remain in the community, but you are supervised by Community Corrections. It typically involves more onerous conditions than a CRO and you will receive a conviction. If you breach a CCO, you will be brought before the Magistrate that sentenced you and potentially be re-sentenced to a more serious penalty.
ICO
If the Court is satisfied that imprisonment is warranted, it can order that you serve the term of imprisonment in the community while subject to the supervision of Community Corrections and conditions such as community service, curfew, or rehabilitation. If you breach an ICO, the Parole Board will determine whether to order you serve the remainder of the period in full-time custody. This is because an ICO is a sentence of imprisonment ordered to be served in the community.
Imprisonment
This offence carries maximum penalty of five- or seven-years imprisonment, depending on the factual circumstances of the offending. However, full-time imprisonment is only reserved for the most serious matters.
Possible Defences
The most common defences to offences of Cause GBH or Wound:
The law states that:
and the conduct is a reasonable response in the circumstances as he or she perceives them.
Once self-defence is raised, the onus lies with the Prosecution to negative self-defence beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in self-defence. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Duress involves circumstances where you have been forced to commit a crime against your will, whether it be by way of threat, intimidation, or some other form of coercion. The threat must be so serious that it would have caused an ordinary person of like firmness in your situation to act in the same way. Furthermore, the threat must be the operative cause of your actions. In other words, if you are not worried about the threat at the time of the commission of the offence, or some other factor influences your decision to commit the crime, duress may not be established. Finally, the threat must be continuing. What this means is that if there is an opportunity at some point for you to obviate the threat, by reporting it to the police for example, duress may not be accepted.
Once duress is raised, the onus lies with the Prosecution to negative duress beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in duress. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
For necessity to be established, the following must exist at the time of the commission of the offence:
As is the case with self-defence, the onus lies with the Prosecution to negative necessity beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting out of necessity. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
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In the spirit of reconciliation, Jackson John Defence Lawyers acknowledges the Traditional Custodians of country throughout Australia and their connections to land, sea and community.
We pay our respect to their Elders past and present and extend that respect to all Aboriginal and Torres Strait Islander Peoples today.
© 2024 JACKSON JOHN DEFENCE LAWYERS – Privacy Policy
Liability limited by a scheme approved under Professional Standards Legislation.
In the spirit of reconciliation, Jackson John Defence Lawyers acknowledges the Traditional Custodians of country throughout Australia and their connections to land, sea and community. We pay our respect to their Elders past and present and extend that respect to all Aboriginal and Torres Strait Islander Peoples today.
