Assault Offences

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. 

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.  

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.  

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. 

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 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.

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. 

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’ 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.

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). 

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.