Common Assault Charges in NSW - Everything You Need to Know After Being Charged with Common Assault

Introduction

Assault is a serious criminal offence in New South Wales, with a range of charges and penalties depending on the severity of the incident and the harm caused to the victim. This comprehensive guide will provide an overview of common assault charges in NSW, including what constitutes an assault, the penalties for different types of assaults, and the available defences to common assault. It will also discuss the role of an assault lawyer in Sydney and provide guidance on what to do if you are charged with assault.

What is an Assault?

In criminal law, an assault is an act that intentionally or recklessly causes another person to apprehend immediate and unlawful violence or applies physical force to another person without their consent. Assault can include actions such as:

• Punching, hitting, slapping, pushing, or kicking another person
• Throwing an object at someone
• Spitting on another person
• Raising a fist towards a person as though to hit them
• Physically restraining someone against their will

Assault does not necessarily require actual physical contact; it can also include threats of violence that cause the victim to fear imminent physical harm.

Types of Assault Charges

1. Common Assault

The offence of common assault is an offence under section 61 of the Crimes Act 1900 (NSW). It is the least serious form of assault and does not result in significant injury to the victim. A person can be charged with common assault if they assault another person without causing them actual bodily harm.

Examples of forms of common assault include:

• Pushing or shoving someone
• Throwing an object at someone without causing injury
• Raising a fist at someone in a threatening manner
• Spitting at someone without making contact

The maximum penalty for common assault in NSW is two years imprisonment and/or a fine of $5,500.

2. Assault Occasioning Actual Bodily Harm (AOABH)

Assault occasioning actual bodily harm (AOABH) is a more serious offence under section 59 of the Crimes Act 1900. It involves an assault that results in actual bodily harm to the victim, such as cuts, bruises, or other injuries that interfere with the victim's health or comfort. AOABH carries a maximum penalty of 2 years imprisonment, or seven years if the offence is committed in company with others.

3. Wounding and Grievous Bodily Harm

Wounding and causing grievous bodily harm are even more serious assault offences. Wounding involves the breaking of both the inner and outer layer of the skin, while grievous bodily harm is a very serious injury that requires extensive medical treatment. The penalties for these offences can be severe, with maximum prison sentences ranging from 10 to 25 years, depending on the offender's intent and the circumstances of the assault.

4. Assaults with Particular Intention

Some assault offences involve specific intent, such as assault with intent to commit a serious indictable offence or assault with intent to resist arrest. These offences are considered more serious due to the offender's intention and may result in harsher penalties.

5. Assaults Against Specific Persons

Certain assault offences are committed against specific categories of people, such as police officers, emergency workers, or school staff. These offences may carry higher maximum penalties due to the victim's occupation and the need to protect these individuals while they perform their duties.

Penalties for Assault in Sydney

The penalties for assault offences in Sydney, NSW vary depending on the type of assault, the harm caused to the victim, and the offender's criminal history. Some of the maximum penalties include:

• Common assault: maximum penalty of 2 years imprisonment and/or a fine of $5,500
• Assault occasioning actual bodily harm: 5 years imprisonment (7 years if in company)
• Recklessly causing grievous bodily harm: 10 years imprisonment (14 years if in company)
• Intentionally causing grievous bodily harm: 25 years imprisonment

However, courts may impose non-custodial sentences for less serious assaults, particularly if the offender has no prior criminal record. These sentences can include fines, good behaviour bonds, or community service orders.

What are the Aggravating Factors for Common Assault in NSW?

Certain aggravating factors can lead to more severe penalties for assault offences, even if the offence itself is not a specific "aggravated assault" charge. These factors include:

• The use of a weapon
• The presence of another person (committing the offence in company)
• Gratuitous cruelty
• Abuse of a position of trust or authority
• The victim being vulnerable due to factors such as age, disability, or occupation

If an assault takes place in circumstances of aggravation, the court is more likely to impose a harsher penalty, including imprisonment.

Which Court Will I Need to Go to for a Common Assault Case?

Common assault and other summary assault offences are typically dealt with in the Local Court, while more serious assaults may be heard in the District Court. The choice of court can impact the maximum penalties available and the way the common assault case is conducted.

Your Options: Pleading Guilty or Not Guilty

When facing a charge of common assault, you will need to decide whether to plead guilty or not guilty. This decision should be made after careful consideration and consultation with an experienced criminal defence lawyer who can provide you with a thorough understanding of your case and the potential outcomes.

1. Pleading Not Guilty

If you decide to plead not guilty, the prosecution must prove beyond reasonable doubt that:

1. Your actions caused another person to fear immediate and unlawful violence, or you made physical contact with another person;
2. The other person did not consent to your actions; and
3. You acted intentionally or recklessly.

It is important to note that common assault may not always involve physical contact. For example, if you shout at someone and cause them to fear imminent violence, this can be considered common assault.

If you believe that the prosecution may not be able to prove beyond reasonable doubt these elements, pleading not guilty may be a viable option. Your criminal defence lawyer will assess the strength of the prosecution's case and advise you on the best course of action.

In the event of a not guilty plea, your common assault case will proceed to a hearing or trial, where the prosecution must prove the charge beyond a reasonable doubt. Your lawyer will work to build a robust defence strategy, which may include challenging the prosecution's evidence, presenting evidence in your favour, and arguing any relevant legal defences to common assault, such as self-defence, duress, necessity, lawful correction, consent, or accident.

If the prosecution fails to prove the charge beyond a reasonable doubt, you will be acquitted.

2. Pleading Guilty

If you choose to enter a plea of guilty to the common assault charge, you will need to admit to the offence of common assault in court. Pleading guilty of common assault at an early stage can demonstrate remorse and acceptance of responsibility, which may result in a more lenient sentence.

In some cases, your lawyer may be able to negotiate with the prosecution to reduce the charge or secure a more favourable outcome. Additionally, if you are a first-time offender and the assault was not severe, your lawyer may be able to argue for a section 10 bond or conditional release order, which can help you avoid a criminal conviction.

However, before entering a guilty plea, it is crucial to consult with a specialist criminal lawyer who can advise you on the potential consequences and ensure that you are making an informed decision.

If you are found guilty of common assault, the maximum penalty of 2 years imprisonment and/or a fine of up to $5,500 applies. However, the actual sentence you receive will depend on the specific circumstances of your case and any mitigating factors.

The court will take into account various penalties for common assault, such as:

• Section 10 dismissal or conditional release order
• Fine
• Community correction order
• Intensive correction order
• Imprisonment

Getting legal advice from knowledgeable common assault lawyers can help you present your case in the most favourable light and argue for a more lenient sentence if you decide to plead guilty.

Defences to a Common Assault Charge in NSW

There are several legal defences available to those charged with assault in NSW, including:

1. Self-defence: If the accused acted in self-defence or defence of another person or property, and their actions were reasonable in the circumstances, they may be found not guilty.
2. Duress: If the accused committed the assault under serious threats (duress) and an ordinary person would have yielded to those threats, they may have a defence.
3. Lawful correction: Parents or caregivers may use reasonable force to discipline a child, as long as the force is not excessive or cruel.
4. Consent: If the victim consented to the physical contact, and the contact was not unlawful or likely to cause serious harm, the accused may have a defence.
5. Accident: If the assault occurred due to a genuine mishap or misfortune, and not due to the accused's negligence or recklessness, they may be found not guilty.
6. Mental impairment: If the accused was mentally impaired at the time of the offence and did not understand the nature or wrongfulness of their actions, they may have a defence.

Penalties for Common Assault as a First Offence

If you are charged with common assault and it is your first offence, you may be able to avoid criminal charges and imprisonment. In some cases, the court may deal with the matter by way of a section 10 dismissal or conditional release order, which allows you to avoid a formal conviction if you adhere to certain conditions, such as good behaviour for a specified period.

However, the availability of a section 10 dismissal or conditional release order will depend on the circumstances of your case, including the severity of the assault and any aggravating factors. Common assault lawyers in Sydney can advise you on the likelihood of avoiding a conviction and the steps you can take to improve your chances of a favourable outcome.

Is Intoxication a Defence for Assault?

Intoxication is not a defence to assault charges in most cases. However, it may be relevant in some circumstances, such as where the offence involves a specific intent that the accused was too intoxicated to form.

In some cases, intoxication may be treated as an aggravating factor in sentencing, particularly if the offender has a history of alcohol-related violence or if the intoxication was self-induced and led to reckless or dangerous behaviour.

Assault vs Domestic Violence

Assault charges are often laid in the context of domestic violence incidents. If the assault was committed against a current or former partner, family member, or someone with whom the offender has a domestic relationship, it may be treated as a domestic violence offence. Sydney law firms that handle criminal law may also be able to assist with related family law matters.

Domestic violence offences can attract additional penalties and consequences, including the imposition of apprehended domestic violence orders (ADVOs) to protect the victim. A conviction for a domestic violence offence can also have significant impacts on the offender's ability to work in certain occupations, travel overseas, and maintain custody of their children.

The Impact of a Criminal Record

If you are convicted of a common assault offence, you will receive a criminal record that can have long-lasting consequences for your future. A criminal record can affect your ability to find employment, travel overseas, and access certain services and opportunities.

In some cases, a criminal record for a common assault offence may also lead to the imposition of a firearms prohibition order, which can restrict your ability to possess or use firearms for a specified period.

It is important to understand the potential impact of a criminal record before deciding how to proceed with your common assault case. Assault lawyers in Sydney can advise you on the likely consequences of a conviction and the steps you can take to minimise the impact on your future.

The Role of an Assault Lawyer

If you are charged with a common assault offence, it is crucial to seek the advice and representation of an experienced criminal defence lawyer as soon as possible. A specialist criminal lawyer can:

• Advise you on the strengths and weaknesses of the prosecution's case
• Help you understand your legal options and the potential consequences of each
• Negotiate with prosecutors to try to have criminal charges reduced or withdrawn
• Gather evidence and witnesses to support your defence
• Represent you in court and advocate on your behalf
• Present mitigating factors and arguments to help you achieve the best possible outcome

Sydney criminal lawyers who specialise in assault cases can make a significant difference in the outcome of your case, whether you choose to plead guilty or not guilty.

What to Do Next if Charged with Assault

If you are arrested or charged with assault, it is essential to remain calm and exercise your right to silence. You should contact an experienced criminal defence lawyer as soon as possible to discuss your case and begin building your defence.

Your lawyer will guide you through the legal process, help you understand your options, and work to protect your rights and interests at every stage of the case. They can also assist with bail applications, negotiate with prosecutors, and represent you in court.

Conclusion

Common assault charges in New South Wales can have serious consequences, including the possibility of imprisonment and a criminal record. If you are facing a charge of common assault, it is crucial to take the matter seriously and seek the advice and representation of an experienced criminal defence lawyer.

By understanding the different types of assault offences, the available defences, and the court processes involved, you can make informed decisions about your case and work with your lawyer to achieve the best possible outcome. Remember, early intervention and a strong legal defence can make a significant difference in the outcome of your common assault case.

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