Facing an assault charge is a daunting experience, fraught with uncertainty and anxiety. In this article, we address some common questions and provide insight to help those charged with assault in New South Wales navigate the complex criminal justice system. The information is general only and we strongly recommend obtaining professional advice relevant to your circumstances.
Types of Assault in NSW
Assault offences are dealt with under the Crimes Act 1900 (NSW).
A common assault is an intentional or reckless act which causes another person to apprehend or fear immediate personal violence. The perpetrator need not physically touch the other person, for example, spitting at a person may be a form of common assault.
To prove common assault, the following elements must be established:
- that the accused’s actions caused the complainant to fear immediate and unlawful violence; or that the accused physically contacted (i.e., touched, struck, applied force to) the complainant;
- The complainant did not consent;
- The conduct was carried out recklessly or intentionally, and continued to be carried out notwithstanding that the accused realised the complainant would fear/be subject to immediate and unlawful violence;
- The conduct was without lawful excuse.
More serious types of assault are categorised based on the type of injury that they inflict:
- ‘wounding’ involves the breaking or cutting of the interior layer of the skin (the dermis);
- ‘actual bodily harm’ is any hurt or injury that interferes with the health or comfort of a person and can include a recognisable psychiatric illness, such as a severe depressive illness or anxiety disorder that is caused by the assault;
- ‘grievous bodily harm’ means serious bodily injury, that results in any permanent or serious disfiguring of the person.
These offences are further differentiated based on the intention of the offender when the act occurs. ‘Grievous bodily harm with intent’ is more serious than the alternative offence of ‘recklessly inflicting grievous bodily harm or wounding’.
To prove the more serious offence requires the prosecution to demonstrate that the accused intended to inflict that amount of injury. The alternative offence of recklessly inflicting harm only requires the prosecution to prove that the defendant committed the act due to a lack of care.
Defences
If someone committed an assault to defend themselves or others from imminent harm, then a case for self-defence may be made. This defence hinges on the defendant’s belief that their actions were necessary and proportionate to the threat posed.
In cases where consent is a crucial element, such as sexual assault, proving that the other party consented to the conduct in question can be a viable defence. If a defendant can demonstrate that he or she lacked the necessary intent to commit the assault, it may serve as a defence. This could include accidental contact (such as bodily contact that occurs in a crowded situation) or a simple misunderstanding. However, if an accused person becomes intoxicated by their own choice and actions, this is not a defence to a charge of assault.
Penalties
The penalties for assault convictions vary depending on the severity of the offence and other aggravating factors. They can range from fines and community service orders to imprisonment for more serious offences. Factors such as the accused’s prior criminal history, the extent of harm inflicted, and the presence of aggravating factors can influence sentencing outcomes.
Wounding or grievous bodily harm with intent carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years. A ‘standard non-parole period’ is a guidepost for a sentencing judge when deciding how much of the sentence must be spent in custody before an offender is eligible for release on parole.
Relevant considerations for the sentencing judge include the degree of violence, the ferocity of the attack, whether the offence was unprovoked, and whether the offence was committed on a victim going about their ordinary business.
The maximum penalty for reckless grievous bodily harm or wounding is between 7 years and 14 years (depending on whether the offender causes grievous bodily harm or wounding and whether they are in company at the time). These offences also have a standard non-parole period of between 3 and 5 years.
The Importance of Legal Representation
If you are facing an assault charge, it is important to seek legal advice. An experienced criminal lawyer will help you understand the charges and potential outcomes of your case, protect your rights throughout the legal process, and advocate on your behalf in court. Being prepared, informed, and legally represented is one of the best ways to ensure that you receive a fair hearing and the best possible outcome in your case.
The prosecution must prove all elements of the alleged crime beyond a reasonable doubt which means that they must be able to convince the judge or jury that there is no real doubt that things happened as they say they did. We can work with you to decide whether you plead guilty or not guilty, and which of the elements you might admit (if relevant) and which you will deny.
Conclusion
Dealing with an assault charge requires a clear understanding of the legal process, the rights of an accused individual, and the available defences. Anyone charged with assault should take proactive steps to address their situation and obtain legal assistance from an experienced criminal lawyer as soon as possible.
If you or someone you know wants more information or needs help or advice, please contact us on 0407 534 594 or 0407 171 626 or email info@catronsimmons.com.au.