Criminal law
Assault charges in NSW
Assault covers everything from a threat that causes someone to fear immediate violence through to a wounding. Which charge you face turns on the injury and on what the prosecution says you intended, and the difference between them is the difference between a two year maximum and a twenty five year one.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Available to attend police stations and to advise by phone, including outside business hours.
Before you do anything else. You are not obliged to take part in a police interview, and in an assault matter it very often hurts, because to explain yourself you have to accept being there and describe what happened. Say you want legal advice first. Declining an interview is not evidence of guilt.
If an AVO has been made, comply with every condition, including where the protected person invites contact. Breaching an order is a separate criminal offence and will do more damage than the original charge.
Preserve what helps you. CCTV from venues and streets is routinely overwritten within weeks. If you were injured, see a doctor and have it recorded, because in a case where both people say the other started it, the medical evidence often decides it. Keep messages rather than deleting them.
What assault actually means
There are two separate ways an assault is committed, and people are regularly surprised by the second.
Applying force
Any unlawful touching of another person, however slight, without their consent. There is no requirement that anyone be injured. A push, a shove or spitting on someone is enough.
Causing apprehension of violence
Causing another person to fear immediate and unlawful violence, without ever touching them. Raising a fist, advancing on someone, or a threat accompanied by conduct can all amount to assault on this limb.
What the prosecution has to prove
- That you applied force to the other person, or caused them to apprehend immediate and unlawful violence
- That the other person did not consent
- That you did so intentionally, or recklessly, meaning you realised the possibility and went ahead anyway
- That the act was without lawful excuse
- Where the charge alleges an injury, that the injury meets the threshold for that charge
The main assault charges
Which one is laid depends on the injury and the intent alleged. Where the injury is at the boundary between two categories, the charge is often negotiable, and that is frequently where the most value is added.
| Charge | What it involves | Maximum penalty |
|---|---|---|
| Common assault | Force or a threat causing apprehension, with no injury or only a trivial one | 2 years |
| Assault occasioning actual bodily harm | An injury that is more than transient or trifling | 5 years, or 7 years in company |
| Reckless wounding | Breaking both layers of the skin, while reckless as to causing actual bodily harm | 7 years |
| Reckless grievous bodily harm | Really serious injury, while reckless as to causing actual bodily harm | 10 years, or 14 years in company |
| Wounding or grievous bodily harm with intent | The most serious form, where the intention was to cause grievous bodily harm | 25 years |
Common assault and assault occasioning actual bodily harm usually stay in the Local Court, where the maximum any magistrate can impose is two years regardless of the maximum for the offence. The more serious charges are dealt with in the District Court.
Related charges you may see
- Assault police, resist or hinder police, which have their own elements and their own defences, turning on whether the officer was lawfully acting in the execution of their duty. More on assault police and resisting arrest
- Choking, suffocation or strangulation, now charged frequently in domestic matters, which is treated far more seriously than a common assault and much more seriously again where another offence was intended
- Stalking or intimidation, often charged alongside an assault. More on stalking and intimidation
- Affray, where the incident involved a group or a public brawl. More on affray
Where the injury thresholds sit
These definitions decide which charge you face, so they are worth understanding.
No injury, or trivial
Redness, momentary pain, or nothing at all. This is common assault territory, and it is where the great majority of these matters sit.
Actual bodily harm
An injury more than transient or trifling: bruising, swelling, a black eye, some fractures, or an injury causing bleeding. It does not have to be permanent or serious, which is why the line between this and common assault is frequently arguable.
Wounding
Both layers of the skin broken. It ranges from a split lip to a stab wound, so a relatively minor injury can attract a charge with a seven year maximum where the skin is broken through.
Grievous bodily harm
Really serious injury. Typically permanent or disfiguring: serious fractures, significant internal injury, or lasting disability.
Injuries change
Bruising develops over days and the photographs taken later look worse than the presentation on the night. Equally, an injury described in a fact sheet is sometimes never supported by any medical evidence at all.
The threshold is a real issue
Whether an injury meets the actual bodily harm threshold, or amounts to a wound, is regularly contested. Getting a charge moved down a category changes the maximum, the court and the likely outcome.
Defences
Self-defence
The most commonly available defence. It applies where you believed your conduct was necessary to defend yourself or another person, or to prevent unlawful deprivation of liberty or damage to property, and the response was reasonable in the circumstances as you perceived them. Once it is properly raised, the prosecution must disprove it beyond reasonable doubt. It applies even where you were mistaken, provided the belief was genuine.
No intention, and no recklessness
The contact was accidental, or the injury was not something you realised might happen. A genuine accident is not an assault.
Consent
Available in limited circumstances, such as contact sport or medical treatment. It has real limits, and consent is not a defence to more serious levels of injury.
The injury does not meet the threshold
Not a full defence, but frequently the most useful argument available. If the injury is not actual bodily harm, or not a wound, the charge should be a lesser one.
It was not you
Identification, particularly where the incident was fast, at night, involved a group or was captured only on distant footage.
Duress and necessity
Where you acted under threat, or in circumstances of genuine emergency. Less common, but available.
Lawful correction
A limited defence available to a parent, or a person acting as a parent, where physical force is applied to a child under 18 for the purpose of punishment and the force is reasonable having regard to the child’s age, health and maturity. The limits are strict: it does not apply to force applied to any part of the head or neck, or to force likely to cause harm lasting more than a short period. Where the defence is raised, it is for the prosecution to negative it. If you have been charged in this situation, get advice before saying anything to police or to family services.
Domestic violence related assaults
The elements and the maximum penalties are exactly the same. What changes is everything around the charge.
- The matter is recorded as domestic violence related on court documents and on your record. That notation follows the matter and is visible on some background checks.
- An AVO will usually accompany the charge, often made provisionally by police on the night. Where a person is found guilty of, or pleads guilty to, a domestic violence offence, the court is generally required to make an order unless satisfied it is not needed.
- Final orders usually run for two years unless the court specifies otherwise.
- Firearms. An AVO means any firearms licence is suspended or revoked and firearms must be surrendered, which matters if you shoot, farm or work in security.
- The conditions may exclude you from your home and restrict contact with children, which is why the terms of the order need attention at the outset rather than after they are made.
- It affects family law proceedings. What is said and consented to in the Local Court is used in parenting matters. More on how the two systems interact.
We act in both jurisdictions, so the criminal charge, the AVO and any parenting consequences are handled together rather than by separate firms. More on responding to an AVO, or on domestic violence offences generally.
Where mental health or cognitive impairment is involved
Where a person charged has a mental health impairment or a cognitive impairment, the Local Court can deal with the matter by way of a treatment or support plan instead of convicting and sentencing. The charge is not proved, no conviction is recorded, and the person is discharged on conditions.
These applications are not automatic and they are not granted for the asking. They require properly prepared evidence, usually a report from a treating psychologist or psychiatrist and a realistic plan the court can be satisfied about. Where the application succeeds, the outcome is materially better than any sentence available. If mental health has played a part in what happened, raise it with us at the first appointment rather than at the door of the court.
What is at stake beyond the penalty
- A criminal record, disclosed on a national police check, affecting employment and particularly anything requiring a working with children check, a security licence or professional registration
- Travel, since a violence conviction can affect entry to some countries, the United States among them
- Firearms licensing, which is affected by both a conviction and an AVO
- Employment now, since many employers require disclosure of a charge, not just a conviction
- Immigration status, where a sentence of imprisonment is imposed and you are not a citizen
These are why a non-conviction outcome is worth pursuing even where the facts are not seriously in dispute, and why the work put into a sentencing matters.
Sentencing options in NSW
Get advice before pleading guilty to anything. The court can impose any of the following, and a well-prepared sentencing is what produces the best available outcome.
Dismissal without conviction
No conviction recorded and no further penalty. The matter is finalised as you leave court.
Conditional release order
A bond, available with or without a conviction, supervised or unsupervised. The standard conditions are to commit no further offence and to appear if called on, and further conditions can include rehabilitation, abstinence, curfews and non-association or place restriction orders.
Conviction with no other penalty
A conviction is recorded but nothing further is imposed.
Fine
Can be imposed alone or with a bond, and is a conviction. Usually payable within 28 days, though the registry can extend the time or arrange a plan. Non-payment leads to enforcement, which can include licence and registration suspension.
Community correction order
More serious than a conditional release order, for up to three years, supervised or unsupervised, with conditions that can include community service, curfews, abstinence and rehabilitation.
Intensive correction order
A sentence of imprisonment served in the community under strict supervision, which can include home detention, electronic monitoring and curfews. It is not available for some offences. Breaches go to the State Parole Authority rather than the court and often result in serving the balance in custody.
A word on written pleas of guilty. Police sometimes hand you a form allowing you to plead guilty in writing without attending. It looks convenient and it is usually a mistake. On a written plea the magistrate has only the police fact sheet and your record, and knows nothing about you, your circumstances or anything mitigating. The penalty is often heavier as a result. It is also important that you agree with what the fact sheet says before it is tendered, because the court sentences on that document.
Common questions
They were not injured. Can I still be charged?
Yes. Assault does not require injury, or even contact. Causing someone to fear immediate unlawful violence is enough. Common assault is the usual charge where there is no injury, and it carries a two year maximum.
They want to drop the charges. Does that end it?
No. The prosecution is run by police, not by the complainant, and it is not theirs to withdraw. A complainant’s changed position can be relevant to how the prosecution assesses the case, but do not assume the matter will disappear, and do not contact them about it, particularly if an AVO is in place.
They hit me first. Is that self-defence?
It may well be. The question is whether you believed your conduct was necessary to defend yourself and whether the response was reasonable in the circumstances as you saw them. Once raised, the prosecution has to disprove it beyond reasonable doubt. Get the medical evidence of your own injuries recorded early, because it is often what makes the difference.
Will I go to gaol?
For a common assault with no significant injury and no record, usually not. It becomes a real prospect as the injuries and the seriousness rise, particularly for wounding and grievous bodily harm charges. We will give you a realistic view early rather than a reassuring one.
Can I avoid a conviction?
It is possible, and worth pursuing given the effect on work, travel and licensing. The court weighs the seriousness of the offence, your character and record, and what you have done since. Well-prepared references, evidence of counselling and evidence of steps taken about alcohol carry real weight.
Should I plead guilty to get it over with?
Not before someone has looked at the brief. There are discounts for early pleas, so there is a real advantage in pleading early where a plea is appropriate, but plenty of assault charges are over-charged, defensible on self-defence, or negotiable to something less serious. Get advice first, then plead early if that is the right course.
Can the charge be negotiated?
Frequently. Charge negotiation, and negotiating what the fact sheet says, is a substantial part of this work. Moving an assault occasioning actual bodily harm down to a common assault changes the maximum from five years to two and changes the sentencing landscape entirely.
What should I bring to the first appointment?
The court attendance notice, the police fact sheet if you have it, any AVO or bail conditions, photographs of any injuries, medical records, and the names of any witnesses. If you have none of it, come anyway.
Get advice before the first mention
Alicia prosecuted criminal matters for over eight years before moving to defence, so we know how these briefs are assembled and where they tend to be weak. We act across greater Sydney, including at Parramatta, Blacktown, Windsor and the city.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Suite 3.13, 33 Lexington Drive, Bella Vista NSW 2153. Courts we appear in.