Assault charges in NSW

Assault refers to the use or threat of force against another person. While the term “force” might suggest serious harm, this isn’t always the case and in some situations assault charges could apply even when the victim suffers no injury.

The most frequent form we see as assault lawyers is common assault, but there are several other assault charges in NSW which most commonly fall into three categories:

  1. Assaults with a particular intention – e.g. assault with intent to commit murder.
  2. Assaults committed against a specific type of person – e.g. assault police.
  3. Assaults resulting in a particular harm – e.g. assault occasioning actual bodily harm.

These are often considered more serious forms of assault and may result in harsher penalties.

 

Common assault

Common assault is a crime under section 61 of the Crimes Act 1900 (NSW), however it is defined under the common law. It includes both:

  • Any act which causes another person to fear immediate personal violence (threat of force), and
  • A striking, touching or application of force against another person (use of force).

In both cases the prosecution must also show that:

  • The accused acted intentionally or recklessly,
  • The victim did not consent to the conduct, and
  • The conduct was without lawful excuse.

 

What conduct could be considered common assault?

 

Use of force

The victim does not have to suffer any harm or injury. Any application of force could be enough to warrant a charge of common assault and can include the slightest touch. Examples include punching, spitting, or poking someone with a stick.

 

Threat of force

Physical contact with the victim is not necessary. Raising your fist and threatening to punch someone is sufficient to be charged with assault.

 

Assault occasioning actual bodily harm

Assault occasioning actual bodily harm is another form of assault and a crime under section 59 of the Crimes Act. This offence is charged when:

  • The accused intentionally or recklessly commits common assault, and
  • That assault resulted in actual bodily harm to the victim.

Actual bodily harm includes any injury which interferes with the health or comfort of the victim including scratches and bruises. It may also include serious and prolonged psychological injury, which is mental harm more serious than temporary emotions or feelings.

 

Grievous bodily harm with intent

Causing grievous bodily harm with intent is another form of assault and a crime under section 33(1) of the Crimes Act. This offence is charged when:

  • The accused caused grievous bodily harm to another, and
  • They intended to cause grievous bodily harm.

Grievous bodily harm requires a serious or permanent injury, which will cause the victim ongoing problems. Grievous bodily harm can include:

  • The destruction of the fetus of a pregnant woman.
  • Any permanent or serious disfiguring.
  • Any grievous bodily disease.

 

Aggravated assault

There is no specific offence of “aggravated assault” in NSW, however there are a number of aggravating circumstances which will be considered in sentencing. If an assault took place in circumstances of aggravation, the penalties will be more severe and imprisonment more likely. Aggravating factors include:

  • The use of a weapon.
  • Gratuitous cruelty.
  • The presence of another person.
  • Abuse of a position of trust or authority.

 

Penalties for assault

 

Common assault

The maximum penalty for common assault is two years imprisonment. Other penalties could include a fine or a section 10 dismissal, and matters heard in the Local Court will often result in a Conditional Release Order or Community Corrections Order. Learn about other potential penalties.

 

Other types of assaults

The potential penalties for other types of assaults are more severe, and imprisonment is more likely. In determining the sentence, the court will consider the degree of violence and the extent of the harm.

 

OffenceMaximum prison sentence
Assault occasioning actual bodily harm5 years
Assault with intent to commit a serious indictable offence5 years
Assault occasioning actual bodily harm in company7 years
Assault police5 years
Reckless infliction of grievous bodily harm10 years
Reckless infliction of grievous bodily harm in company14 years
Wounding or grievous bodily harm with intent25 years

 

Some of these offences may also be dealt with summarily in the Local Court where the maximum penalty is two years imprisonment.

It is essential to have a good assault lawyer who can assist you in presenting the strongest case possible, potentially avoiding a conviction or prison sentence.

 

Frequently Asked Questions

In which court will common assault charges be heard?

Common assault will ordinarily be dealt with in the Local Court. In rare circumstances, it may be heard in the District Court, but this would usually only occur if a defendant is also charged with further more serious offences that must be dealt with by the District Court.

What are the potential defences for an assault charge in NSW?

Self-defence is a common defence to assault. To establish self-defence it must be shown that:

  • The accused believed their conduct was necessary in order to defend themselves, and
  • The accused’s actions were a reasonable response in the circumstances as they perceived them.

The conduct cannot be unreasonable or excessive. For instance, if someone pokes you in the chest, you have no right to belt them over the head with a baseball bat.

You might not be guilty of an assault for other reasons, including that your actions did not amount to an assault, or the actions were accidental but not reckless, such as bumping into someone on a crowded street.

Other defences include duress and necessity. An assault lawyer may be able to use these defences to help you avoid a criminal conviction.

What is the difference between common assault and wounding with intent?

The main difference between common assault and wounding with intent is the type of harm inflicted on the victim. Wounding with intent requires the breaking of the inner and outer layer of the skin. If you deliberately cut someone with a knife, you could be charged with “wounding with intent” under section 33(1) of the Crimes Act.

What is the difference between assault and battery?

Previously, assault exclusively referred to the threat of force, while battery referred to its actual use. If someone punched you in the face, the physical contact between their fist and your face was charged as battery, and the few seconds before contact while their fist was flying through the air, was charged as assault. Because of this, people charged with battery were typically also charged with assault.

However, this distinction no longer applies. Under NSW law both the use and threat of force are considered to be assault.

Contact an assault lawyer

We are experienced in successfully defending assault charges in NSW.

Book a free consultation with an assault lawyer or call us on 1300 668 484 for 24/7 legal advice.