There are some forms of assault in the criminal law, including but not limited to simple assault, sexual assault, assault with a weapon and aggravated assault
Assault is defined as the direct infliction of injury, force or violence upon a person. However, there can also be an assault even if there is no physical or actual contact with the victim. A threat to commit an unlawful act against the victim or an overt act that tends to produce in the mind of the victim a danger of an imminent character upon his person already constitutes the crime.
It is a crime Australians face the highest risk of victimisation from, out of all crimes against the person. The Australian Institute of Criminology (AIC) reported that in 2007, males aged between 15 and 24 years have the highest rate of victimisation, and females between 15 and 19 follow closely behind. Young males are most likely to be targeted by a stranger, while females are more likely to be assaulted by a family member.
In NSW, assault offences are the second most common type of offence that persons frequently charged within the Local Court of New South Wales and also second to the most common type of offence in Children’s Court. (NSW Bureau of Crime Statistics and Research, NSW Criminal Court Statistics 2012, p3; 8).
Types of assaults
Assault during public disorder | Assaulting or resisting police | Assault with Intent to Rape | Infliction of actual bodily harm in aggravated assault Sexual assault charges | A defence in sexual assault charges | Indecent assault
There are four (4) types of assaults under the Crimes Act 1900. The first type is a serious assault by the offender which involves actual and physical contact with the victim resulting to the latter’s injury or grave bodily harm. The second is a serious assault but does not involve an injury to the victim. The third is a common assault and lastly, the fourth is stalking. For purposes of this article, we will discuss the third type of assault – the common assault.
Common assault is defined and punished under the Crimes Act 1900 (NSW). Section 61 of Crimes Act 1900 provides that, “whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.”
Again, actual physical infliction of any harm upon the person of the victim is not necessary to commit this offence. A threat of imminent character directed to the victim is already sufficient to warrant conviction under Section 61. Often, individuals are charged when a person assaults someone else, but no injury is caused that could be considered bodily harm or grievous bodily harm.
The person charged with the offence of assault is not left without a remedy. In fact, like in any other criminal charge, the accused can set up defences available to him under the circumstances. These defences include self-defence and lawful correction. Any of these defences available under a particular case, when properly set up, can lead to an acquittal of the accused.
The most common penalty imposed on assault offenders is a bond, but the likelihood of a prison sentence increases with both the seriousness of the assault and the number of prior convictions. (NSW Bureau of Crime Statistics and Research, Crime and Justice Statistics: Bureau Brief September 2011, p11).
The penalty to be imposed upon the convict depends on whether he or she has a previous conviction. The penalty includes imprisonment, suspended sentence, community service order, bond, fine, and in some instances bond without conviction/no conviction recorded.
If the offender had only 0-3 previous convictions involving the same offence, he only suffered to pay a bond with or without conviction record. On the other hand, the offender will most likely suffer imprisonment as a penalty if he already has at least 4 convictions.
The penalty provided by the law upon the assault offender ranges from two (2) to fourteen (14) years of a prison sentence, depending on how the assault is committed and depending on who the victim is.
If there is no actual bodily harm inflicted upon the victim, the maximum penalty provided in the Crimes Act 1900 is two (2) years of imprisonment. However, under the same law, if the victim is a police officer, the maximum penalty is five (5) years. However, there is nothing to prevent the court from imposing imprisonment as a penalty even in the first instance if the assault is of serious character.
Being a convict of the offence of assault has an adverse effect. The seriousness of its effect depends on the job the convicted person normally does. Many jobs do not permit employees to work with a criminal conviction and so, in the case of an assault charge, the person could lose their job with no chance of further employment elsewhere.
If charged with assault you should not even consider representing yourself in court. It is an intimidating experience to say the least. It is only through the use of an experienced lawyer that you can expect to get a fair hearing. A lawyer knows how to present the facts and will always introduce any extenuating circumstances that might favour the accused and in some cases the penalty may either be reduced or dismissed.
The circumstances surrounding an assault are usually very personal, so it is imperative that you seek legal advice if you have been charged with assault.
This table deals with the key personal violence offences under the Crimes Act 1900. Common and recently enacted offences are listed below:
Assault occasioning actual bodily harm
Reckless wounding in company
Reckless infliction of grievous bodily harm
Reckless infliction of grievous bodily harm in company
Wound or inflict grievous bodily harm with intent
Use or possess weapon to resist arrest
Attempt to choke
Administer intoxicating substance
Assault causing death
Assault causing death when intoxicated
There are also specific offences of assaulting police while in execution of duty under ss 58 and 60, with penalties ranging from 5 to 14 years.
If you have been charged or are facing a police interview, contact our criminal lawyers today to make an appointment to see one of our lawyers.