Assault Police is a commonly used charge by police officers and carries significant potential penalties – penalties that are above the tariff for a common assault so as to deter people from assaulting police officers.
Whilst it is acknowledged that assaults upon police officers can be serious, many are not. Particular care needs to be given in assessing the level of criminality involved in the alleged offence.
It is often the case that a criminal defence lawyer receives instructions that the facts giving rise to the charge arose in response to actions by the police. In such circumstances, a defence of self-defence may arise, even where police were acting lawfully (such as causing pain or fear resulting in a response of assault) – a person has the right to defend themselves – Section 418 Crimes Act 1900 NSW.
Lawful Execution of Duty
Similarly, the question often arises as to whether the officer was acting in the lawful execution of their duty at the time of the incident. An officer can be acting in the execution of their duty even if they are not on duty at the time, where the assault occurs as a consequence of actions undertaken by that officer, or because the officer is a police officer – Section 60(4) Crimes Act 1900 NSW
A person who assaults, throws a missile at, stalks, harasses or intimidates a police officer acting in the execution of their duty can face up to 5 years gaol – Section 60(1) Crimes Act 1900 NSW. If the offence is carried out during a public disorder, such as riot, the penalty is up to 7 years imprisonment – Section 60(1A) Crimes Act 1900 NSW. A person who assaults a police officer occasioning actual bodily harm (eg. a bruise, welt, mark, lump, pain, cut, minor fracture etc) is liable to a higher penalty of up to 7 years imprisonment – Section 60(2) Crimes Act 1900 NSW. A person who recklessly wounds or inflicts grievous bodily harm on a police officer in the execution of their duty is liable to imprisonment for a period of 12 years – Section 60(3) Crimes Act 1900 NSW. Grievous bodily harm means a ‘really serious injury’
Application for Guideline Judgment Refused
In 2002, the Attorney General of NSW made application to the Court of Criminal Appeal for consideration as to whether a Guideline Judgment should be given for the purpose of sentencing consistency for offences of Assault Police – see Attorney General’s Application Under s.37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002  NSWCCA 515 Ultimately the application was refused. It was determined that the offence encompassed such a wide range of offending behaviour that a Guideline Judgment should not be applied. It was also held that around the same time as the application was made for the guideline, Section 21A Crimes (Sentencing Procedure) Act 1999 included an aggravating feature to an offence where the victim was a police officer.
Dealing with Assault Police charges
As set out above, potential penalties for offences of assault police and intimidate police are significant. Courts have recognised the need to impose a penalty reflecting the principles of general deterrence. We have dealt with a number of matters over the years where charges of assault police and intimidate police have been successfully defended. Examples of these cases include where the officer was committing an assault upon the accused; where the accused was in a semi conscious state after being bashed by someone else and defended himself against what turned out to be a police officer trying to assist him; and where the evidence of the alleged assault on the officer was fabricated. In certain cases, we then act for our clients in suing the police.
At Nyman Gibson Miralis, our accredited specialists in criminal law and criminal defence lawyers can examine all of the available material and advise you accordingly on the merits of your case – whether it proceeds as a defended hearing of a guilty plea.