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Affray in NSW

Affray in New South Wales

Affray is a serious criminal offence that carries a maximum of 10 years in prison.

People are most often charged with Affray when they have behaved in a violent or threatening manner in a public place.

However, people are often incorrectly charged with Affray, when instead they should have been charged with a less serious form of assault or intimidation.

What is Affray?

The offence of Affray is found in Section 93C of the Crimes Act 1900 (NSW). In summary, a person will be guilty of Affray if:

  1. The person uses or threatens to use unlawful violence;
  2. In a private or public place; and
  3. The behaviour of the person would cause a person of “reasonable firmness” to fear for his or her personal safety.

We discuss each of these elements in greater detail below.


Uses or threatens to use unlawful violence

Unlawful violence is defined as any sort of violence that is not excused by law.

However, the use of words alone is not enough. The behaviour must also include some form of physical action.

The possession of weapons in addition to words is also not enough. This is unless the weapon is visible or being held openly.

It has been held that throwing objects can amount to unlawful violence for the purposes of Affray. This is the case even if the object does not hit anyone.

In cases of Affray, the prosecution does not have to prove that the person intended to use unlawful violence. If the prosecution is able prove that the person was reckless, this is sufficient to find a person guilty of Affray.


In a private or public place

A common misconception is that Affray can only occur in a public place. This is incorrect. In New South Wales, a person can also be found guilty of Affray in a private place.


Causes a person of “reasonable firmness” to fear for their safety

Who is a person of “reasonable firmness”?

In cases of Affray, the law is referring to a hypothetical reasonable person when deciding whether or not a person would have been in fear for their safety.

There is no legislative definition of a “person of reasonable firmness”. However, courts have held this person to be an ordinary or average person and someone who is not particularly fearless or courageous.


Does a person of reasonable firmness need to be present for it to be an Affray?

In Affray cases, whether or not a person of reasonable firmness was present at the time is not relevant. A person can be found guilty of Affray even if there is no one present at the time.

However, if there are people present at the time, they can be relevant to the court’s determination of whether a person of reasonable firmness would have feared for their safety.


What does fear mean in Affray cases?

Fear is something more than nervousness, discomfort or annoyance. It must make the hypothetical reasonable person feel terrified for it to be considered an Affray.


Does the prosecution need to prove that each person’s behaviour was an Affray?

If there is more than one person using or threatening to use unlawful violence, it is the behaviour of all of them taken together that the court will consider in determining whether there has been an Affray.

Therefore, the prosecution does not have to prove that each individual person’s actions placed the public in fear. This gives the prosecution a significant advantage in Affray cases.


If the prosecution fails to prove any of the elements above, beyond reasonable doubt, a person cannot be guilty of Affray.


Defences to Affray


The most common defence to Affray is Self-Defence. That is, that the person acted out of a genuine fear for their safety and acted proportionately.

There is a very fine line between self-defence and retaliation. Your lawyer will advise you on self-defence if it is available to you.


Downgrading a charge of Affray

People are very often incorrectly charged with the offence of Affray when they should have been charged with an offence of common assault or assault occasioning actual bodily harm.

This often occurs when police charge people with Affray simply because they had a fight in public.

Where the violence is limited between two parties and there is no violence directed or threatened towards the general public, it is arguable, that the behaviour does not constitute an Affray.

If the law intended that all violence between people in public will amount to Affray, it would make all the other assault offences in the law useless.

Affray is more concerned with indiscriminate violence in public.

Our lawyers have had a great deal of success downgrading Affray charges to common assault which carries a maximum of 2 years imprisonment instead of 10 years.


Which Court determines Affray cases?

Affray cases are dealt within the Local Court unless an election is made by either the prosecuting authority or the defendant.

If the matter is elected, it will then go to the District Court, although Affray charges are very rarely elected to the District Court.

In the event the the matter remains in the Local Court, it will be heard by a Local Court Magistrate alone.

If the matter is elected to the District Court, it will be determined by a District Court Judge and 12 members of a jury panel.


What is the maximum penalty for Affray?

In New South Wales, the maximum penalty for an Affray offence is 10 years imprisonment.

However, if the matter stays in the Local Court, the Local Court cannot impose a prison sentence of more than two years.

The Local Court will still have to take into account the maximum penalty prescribed when considering the appropriate sentence.


What factors will the Court take into account if I plead guilty to Affray?

The court will need to consider both the objective factors of the Affray offence and also the subjective factors of the person being sentenced.

Based on those factors, the Court will determine the most appropriate sentence. We discuss these factors below.


Objective seriousness in Affray cases

Determining objective seriousness involves comparing the particular Affray offence before the court with other examples of Affray.

This allows the court to determine how serious this particular case of Affray is. The most common factors for considering objective seriousness in Affray cases are:


  • The degree of violence involved in the Affray
    How the Affray was carried out and the form of unlawful violence that was used is a relevant factor.

How the affray was carried out and the form of unlawful violence that was used is a relevant factor.


  • Whether the Affray involved the use of weapons

The use of weapons will make the Affray more serious. It can also lead to the person being charged with further offences.


  • Whether any injuries were caused

If someone is injured, the offence will be significantly more serious. The more serious the injury, the more objectively serious the offence will be.


  • The Duration of the Affray

The longer the duration of the Affray, the more serious it is considered to be. An Affray could last anywhere between a matter of seconds or several hours.


  • Location of the offence

Depending on the circumstances, the location of the Affray can make the case more serious. For example, if there are children present or at the grocery store during a pandemic.

Generally, the more people that are present at the scene, the more serious the Affray will be.


  • The amount of planning involved

A planned Affray is considered to be significantly more serious than someone who has acted spontaneously to a situation.

A person who plans an Affray has more time to consider the impact of their actions.


  • Provocation

Despite provocation not being a defence in New South Wales, if a person is provoked into the behaviour, the court must take that into account.

If a person is provoked, the offence will generally be considered to be less serious. Your lawyer will advise you on provocation.


Subjective Considerations

The court must also consider all of the personal matters of an individual when sentencing them. Some of the most important factors are the following:


  • The age of the person

Younger people are afforded some leniency due to their immaturity.


  • The attitude of the person towards their actions

If a person expresses regret and shame for their behaviour and shows genuine remorse, the court must take that into account.


  • The person’s criminal history

First time offenders or people who have a limited criminal history will generally receive some leniency from the court.


  • The person’s upbringing

If a person has a difficult or tough upbringing the court must give some weight to that when sentencing them for Affray.

Especially, if the person has had a violent upbringing.


  • The person’s education and employment

Education and employment can be relevant in a number of ways, such as the likelihood of a person losing their job or career if they are convicted. It can also be relevant to the upbringing of the person.


  • Whether the offence is out of character

Showing the court that this type of behaviour is out of character will help reduce the seriousness of the sentence.

The law recognises that, occasionally people act in a way that is completely out of character and some leniency is afforded to them.


  • Mental health

A person’s mental health must be considered when sentencing a person for Affray. Offences of Affray are very commonly committed by people who suffer with mental illnesses.

In some circumstances, the court can also refer the person for treatment instead of dealing with them under the criminal justice system.


  • Rehabilitation undertaken

Rehabilitation can be in the form of anger management or any other type of program that deals with violence.

This shows the court that the person is wanting to change. It also gives the court comfort that the person will not re-offend.


What are the most common sentences for Affray?

It is not common for a person to avoid a criminal conviction for Affray, unless the Affray was trivial, or the person has a very strong subjective case.

The most common sentences for Affray are:


Community Correction Order

A Community Corrections Order is a type of good behaviour bond. It carries a criminal conviction.

The standard condition of the bond is that the person should not commit any further offences.

However, in addition to the standard condition, the court can also add supervision and community service work.

The bond can be made for a period of up to 3 years.


Intensive Correction Order

An Intensive Corrections Order is a term of imprisonment. However, instead of the person going to prison, they serve the prison sentence within the community whilst under the supervision of Community Corrections.

As part of an Intensive Corrections Order, the court can also add a number of conditions including community service work, house arrest, alcohol abstinence, counselling or treatment and a curfew.


Full-time Imprisonment

Although it is not common, a court can sentence a person to full-time imprisonment for an offence of Affray. Our Criminal Law Team will advise you on the likelihood of full-time prison if necessary.


What should I prepare for my sentence?

Our expert team will give you all the guidance that you need to help you prepare for your sentence. Including, what documents you need to obtain and what programs you need to enrol in.


Why should I choose Australian Criminal and Family Lawyers?

Our highly experienced Sydney criminal defence lawyers are experts at dealing with charges of Affray.

We have a strong track record of successfully defending people charged with Affray by either having cases dismissed or having Affray charges downgraded to less serious offences.

Call us today on 1300SILENT (1300-745-368)  to book your free first legal consultation.