Types of Assault Offences
Assault offences are one of the most commonly charged offences in NSW, so we deal with them on a day to day basis. Being charged with such an offence must be taken seriously as severe penalties can be imposed, such as imprisonment, weekend detention and community service orders.
Below are some of the most common Assault offences:
Common AssaultThe offence of Common Assault is the assault charge most frequently issued by the police. It is the least serious of the assault offences, and can be charged where it is alleged that one person assaults another, but the injury caused is not severe (i.e. does not cause any lasting injury or scarring), as set out within section 61 of the Crimes Act 1900 (NSW).
Penalties: The penalties for common assault can still be severe, with the maximum penalty at two years imprisonment.
Assault Occasioning Actual Bodily HarmAssault Occasioning Actual Bodily Harm is the second most serious assault offence after Assault Occasioning Grievous Bodily Harm. This offence can be charged where an injury arises out of an alleged assault that is not permanent, but results in a wounding, for example when a person’s skin is broken.
Penalties: The maximum penalty for this offence is five years imprisonment. Where the offender is in the company of another person or persons this increases to seven years.
Attempts to ChokeGenerally, the charge of Attempt to Choke may be laid when the accused has either (i) attempted to choke someone, or (ii) attempted to make the person insensible, unconscious, or incapable of resistance. The offence is taken very seriously by the courts, with a maximum penalty of 25 years imprisonment, and legal advice should be sought immediately upon being charged.
Penalties: As indicated above, a conviction of Attempt to Choke carries a maximum penalty of 25 years imprisonment, under section 37 of the Crimes Act 1900 (NSW).
Reckless Grievous Bodily Harm or WoundingThe offence of Reckless Grievous Bodily Harm or Wounding is generally charged when an act or omission has caused grievous bodily harm or wounding, but there was no intent. There are several different forms of this offence prescribed in section 35 of the Crimes Act 1900 (NSW). In determining which offence to charge you with, the Police will consider whether you wounded someone and/or whether you inflicted grievous bodily harm, as well as whether you were in the company of others at the time of the offence.
Penalties: Depending on the particular offence you are charged with, the maximum penalty can range from seven years imprisonment up to 14 years imprisonment. However, with proper legal representation, it is usually possible to avoid these severe penalties.
Assault PoliceThere are several offences that constitute an assault on a police officer, as prescribed by section 60 of the Crimes Act 1900 (NSW). Very broadly, the charge may be laid where the accused has assaulted or harassed a police officer, while the officer was in the execution of his/her duty. However, if such action is in reaction to actions undertaken by the police officer in the course of their duties, or simply because the person is a police officer, the offence still applies.
Penalties: The least severe of the possible offences does not involve any form of bodily harm, and carries a maximum penalty of five years imprisonment. An assault that causes actual bodily harm will carry a maximum term of seven years, while a malicious wounding or causing of grievous bodily harm involves a maximum penalty of 12 years. However, with proper legal representation, it is usually possible to avoid these severe penalties.
Assault Occasioning Grievous Bodily HarmThe charge of Assault Occasioning Grievous Bodily Harm may be laid where the accused has maliciously inflicted a very serious injury on someone.
Penalties: Under Section 33 of the Crimes Act 1900 (NSW), whoever wounds or causes grievous bodily harm with intent is liable to imprisonment for up to 25 years. However, with proper legal representation, these severe penalties can usually be avoided.
Assault during Public DisorderThis type of charge refers to any assault which occurs during a large-scale public disorder, as prescribed under section 59A of the Crimes Act 1900 (NSW). The charge can carry custodial sentences, so it is important to seek legal representation.
Penalties: Where the assault is not serious in nature, and does not lead to any actual bodily harm, the maximum penalty is five years imprisonment. However where actual bodily harm is caused as a result of the assault, the maximum penalty is imprisonment for seven years.
Legal Defences for Assault ChargesIf you have been charged with any type of assault, there may be a defence available to you, including: Self-defence, duress and necessity. In some instances intoxication is also a defence. Often charges of assault arise as a consequence of alleged violence between several people, which can lead to charges being laid against multiple individuals. Sometimes the alleged victim is also involved in perpetrating the violence and this causes confusion in determining ‘who started it’ and who was merely defending themselves. It will be necessary for the police in every offence to prove that the accused was the person who committed the offence.
Sexual Related Assaults
Indecent AssaultThe charge of Indecent Assault may be laid when the accused has assaulted someone in a way which carries a sexual connotation, or the intention to obtain sexual gratification. The charge is different to Sexual Assault, which requires penetration.
Penalties: A charge of indecent assault carries a maximum penalty of up to five years imprisonment. There is also a more serious charge of Aggravated Sexual Assault, which carries intensified maximum penalty of seven years imprisonment. The circumstances of aggravation are established when: The offence is committed in company, the victim is under the offender’s authority, the victim has a serious physical disability, or the victim has a serious intellectual disability. The elements for indecent assault need to be established first before considering these aggravating factors.
Sexual AssaultThe charge of Sexual Assault may be laid when the accused has sexual intercourse with another person, without the consent of the other person, and knowing that the other person does not consent to the sexual intercourse.
Penalties: The maximum possible penalty for the charge of Sexual Intercourse without Consent is 14 years imprisonment. Any person who attempts to commit a sexual assault-related offence may face the same penalties as if they actually committed the offence. However, the penalties vary depending on the gravity of the particular offence. Factors which determine the gravity include: Degree of violence, physical hurt inflicted, form of forced intercourse, degree of humiliation and duration of the offence
Aggravated Sexual AssaultIt is also possible to be charged with the more serious offence of Aggravated Sexual Assault, which carries penalties of up to 20 years imprisonment. Aggravating circumstances to a sexual assault offence include:
- At the time of, or immediately before or after the commission of the offence, the offender intentionally or recklessly inflicted actual bodily harm on the victim or any other person present or nearby
- At the time of, or immediately before or after the commission of the offence, the offender threatened to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument
- The offence was committed in the company of another person or persons
- Victim is under 16 years of age Victim is under authority of offender
- Victim has a serious physical disability
- Victim has a cognitive impairment
- Offender broke and entered into dwelling-house or other building with the intention of committing the offence or any other serious indictable offence
- Offender deprived the victim of their liberty before or after the commission of the offence
Aggravated Sexual Assault in CompanyThere is also a third charge called Aggravated Sexual Assault in Company, which can lead to life imprisonment. To be convicted of the charge, a person must have committed sexual assault in the company of another person or persons, and at the time of, or immediately before or after the commission of the offence, intentionally or recklessly inflicts actual bodily harm on the alleged victim or another who is present or nearby; or at the time of, or immediately before or after the commission of the offence, threatens to inflict actual bodily harm on the alleged victim or another who is present or nearby by means of an offensive weapon or instrument; or deprives the alleged victim of his or her liberty for a period before or after the commission of the offence.
Legal Defences for a Sexual Assault ChargeThere are several defences available to you, should you be charged with a Sexual Assault offence. A couple of the major ones are: Denying the intercourse and identifying a motive for the complainant to lie about it or admitting to having intercourse with the complainant, but claiming it was consensual. There are also a number of mitigating circumstances, which may lead to a reduced sentence, including: Youth of offender: for young offenders an emphasis is often placed on rehabilitation; the offender has good prospects of rehabilitation; remorse shown by the offender; early guilty plea; mental condition: may warrant a sentence other than full time custody; the offender does not have any record or significant record of previous convictions; punishment meted out by others, such as abuse and harassment and threats of injury to person and property, including personal harassment by media representatives
What is ‘Consent’?A person knows that another person does not consent to sexual intercourse if the person:
- Knows that the other person does not consent;
- Is reckless as to whether the other person consents; or
- Has no reasonable grounds for believing that the other person consents
- A person does not consent to sexual intercourse if the person:
- Does not have the capacity to consent due to age or cognitive impairment;
- Does not have the opportunity to consent because they are unconscious or asleep;
- Consents due to threats of force or terror; or
- Consents due to being unlawfully detained
- Self-induced intoxication is not relevant for the purposes of determining consent.
Apprehended Violence Orders
Apprehended Violence Orders are orders of the court designed to prevent physical violence, stalking, harassment and intimidation toward a person by another. The granting of an AVO can have drastic implications, and breaching an AVO may lead to criminal charges. If you believe the AVO was unnecessary, obtained by a false complaint, or obtained for some advantage (e.g. preventing one parent from seeing their children), it’s important that you seek legal advice immediately.
Action to Take
Successfully defending an application for an AVO sought by your spouse or former partner can sometimes be difficult for a number of reasons. Firstly, applications need only be proved on the balance of probabilities, rather than the higher criminal standard of beyond a reasonable doubt. Secondly, applications are often taken out by police on the behalf of the alleged Person In Need Of Protection (PINOP). This means you may find yourself in a position where the alleged PINOP is legally represented by a police prosecutor and you are not. Thirdly, most allegations occur where there are no witnesses, and so it is sometimes difficult to adequately support your point of view. For this reason, it is imperative that you seek legal representation in order to effectively navigate these many interlinked factors.
What the Police Must Prove
- In order for the Police to prove their case at Court, they must prove each of the following matters beyond a reasonable doubt.
- The accused contravened a prohibition or restriction specified in an order made against the person.
- The contravention was done or made knowingly.
- It will be necessary for the Police in every offence to prove that the accused was the person who committed the offence.
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