What does the prosecution need to prove in a case of Assault Occasioning Actual Bodily Harm?
The prosecution will need to prove a number of elements beyond reasonable doubt to make out a case of Assault Occasioning Actual Bodily Harm. There is no need for the prosecution to prove that the accused had a specific intent to cause actual bodily harm. The prosecution only needs to prove that the accused intentionally or recklessly assaulted the victim and that the victim suffered actual bodily harm as a direct result.
In summary, to make out an offence of Assault Occasioning Actual Bodily Harm, the prosecution must prove beyond reasonable doubt the following elements:
- That the accused committed a physical act (touching, striking or applying force to another) and that the physical contact was not touching in the ordinary course of life;
- The accused did so intentionally or recklessly;
- The accused did so without lawful excuse; and
- As a direct result of that physical act the victim suffered a physical injury that is more than “transient or trifling”.
What is “Actual Bodily Harm?”
The phrase “actual bodily harm” is not defined in the legislation and therefore the law requires the words to be given their ordinary meaning. Past cases have defined ‘Actual Bodily Harm’ as injuries that are more than merely transient or trifling. The injuries however do not require any form of permanency. Generally Actual Bodily Harm is an injury that interferes with the health or comfort of the victim.
Some examples of Actual Bodily Harm include the following:
What is the difference between common assault and Assault Occasioning Actual Bodily Harm?
The main difference between Common Assault and Assault Occasioning Actual Bodily Harm is the occasioning of injury. There doesn’t need to be any physical injury for the prosecution to make out a charge of Common Assault. However, an injury must be occasioned to make out a charge of Assault Occasioning Actual Bodily Harm. Our lawyers have in the past successfully defended charges of Assault Occasioning Actual Bodily Harm by arguing that the injuries alleged in the prosecution case did not amount to ‘Actual Bodily Harm’.
Although there are a range of defences available at law, the two most common defences in cases involving Assault Occasioning Actual Bodily Harm are that the injury does not amount to “Actual Bodily Harm,” or that the assault occasioning the injury was an act performed in self-defence.
Our Sydney Criminal Lawyers can give you legal advice on the defences that may be available to you and the prospects of successfully defending your case.
Which court are charges of Assault Occasioning Actual Bodily Harm heard in?
The charge of Assault Occasioning Actual Bodily Harm is usually dealt with in the Local court. However, both the prosecution and the defence may choose to elect to have the matter heard in the District court.
If I plead guilty to Assault Occasioning Actual Bodily Harm what factors will the Court take into consideration in sentencing?
There are many factors that the court will consider when sentencing an offender for Assault Occasioning Bodily Harm. This includes both the objective and subjective factors of the case. Based on those factors, the court will determine the most appropriate sentence, and in some circumstances, whether or not to record a conviction.
One of the most important factors at sentencing is how objectively serious the particular offence is in comparison to other cases of Assault Occasioning Actual Bodily Harm. The court amongst many factors can consider the following factors when determining objective seriousness:
- The nature of injuries caused
The more serious the injury the more objectively serious the offence will be. Example a scratch is generally considered less serious than a cut.
- The Mode of Assault – the degree of violence or force used in causing those injuries
How the assault was carried out, and the form of striking that was used is a relevant factor. For example, punching another person in comparison to a push is more serious.
- The Duration of the Assault
How long the assault lasted. The longer the duration and ferocity of the assault the more serious it is considered to be.
- The Location of the Assault
If the assault occurred in a public place or at the home of the victim. Depending on the circumstances of the case those factors may aggravate the offending.
Whether the decision to carry out the assault was an unplanned or a spontaneous reaction. The more planning involved, the greater the moral culpability of the offender.
Despite not being a defence at law in New South Wales, section 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 provides that provocation is a mitigating factor where the offender was provoked by the victim into committing the assault. Whether provocation is a mitigating factor depends on the nature and extent of the provoking conduct.
- Age and size of the victim
If the victim is young, or if there is a significant size difference between the offender and the victim, the objective seriousness of the Assault Occasioning Actual Bodily Harm may be increased.
The court must also take into account the subjective case of an offender when determining an appropriate sentence. This includes, but is not limited to some of the following factors:
- The attitude of the offender towards their conduct
The attitude of the offender towards their criminal conduct is a very important consideration for the sentencing court to take into account. This includes the offender’s willingness to accept their wrongdoing, expressions of remorse and contrition and insight into their offending behaviour.
The court must consider an offender’s criminal record. First time offenders or offenders with minimal criminal history will generally receive some leniency from the court. The presence of a criminal record however does not mean that the offence is aggravated, it simply means that the accused will not be able to rely on his or her record as a mitigating factor.
Good character can be demonstrated by community involvement, and general compliance with the law. Good character can also be evidenced by character referees.
Young offenders are generally given some leniency due to their immaturity and the fact that they may not be fully aware of the consequences of their actions.
Mental illness must be considered on sentence, particularly where there is evidence that the mental illness contributed to the carrying out of the offence. In some circumstances it may also be appropriate for the offender to be diverted away from the criminal justice system under a Section 32 application.
- The Availability of a Support Network
The fact that an offender has available to them a support network through family and friends is a relevant factor that a sentencing court can take into account on sentence. It is particularly important when the court considers the accused person’s prospects of rehabilitation and the likelihood of them re-offending.
- Rehabilitation undertaken
The steps taken by an offender towards rehabilitation plays a significant part in sentencing. An offender’s willingness to reform and change is a matter which the court has to give weight to. This will also in turn be relevant on the sentencing court’s findings with respect to the offender’s prospects of rehabilitation and the likelihood of the person re-offending.
- The likelihood of re-offending
Based on the offender’s age, criminal history, the offender’s attitude and the rehabilitation undertaken the court is also required to make a finding as to the likelihood of re-offending. The likelihood of re-offending can be significantly reduced through the undertaking of rehabilitation and showing insight and acceptance.
What is the Maximum Penalty for Assault Occasioning Actual Bodily Harm?
The maximum penalty that applies to Assault Occasioning Actual Bodily Harm is 5 years imprisonment, or a fine of $5,500.00.
It is important to note however that if the matter is dealt with in the Local Court, the maximum penalty that the Local Court can impose is 2 years imprisonment. That is because of the jurisdictional limit of the Local Court which applies to all offences dealt with in the Local Court.
What are the possible penalties for Assault Occasioning Actual Bodily Harm?
For first time offenders or offenders with no criminal or limited criminal history, the most likely penalties are as follows:
Section 9(1)(b) Conditional Release Order (CRO) without conviction (formally known as a section 10 bond)
A Conditional Release Order is a good behaviour bond that can be imposed without recording a conviction. The bond carries standard conditions which include: (1) being of good behaviour and (2) appearing before the court if called upon to do so at any time during the duration of the bond. The court can also add additional conditions such as supervision.
The maximum term of a Conditional Release Order is 2 years and starts on the day that it is made. If the person breaches the good behaviour bond the court may revoke the bond and re-sentence the offender to a harsher form of punishment.
Section 9(1)(a) conditional release order (CRO) with conviction:
A Conditional Release Order made under section 9(1)(a) is identical to section 9(1)(b) bond above, however, under this section it is imposed with conviction which results in the offence appearing on the offender’s criminal history.
A court can also choose to fine an offender for an offence of Assault Occasioning Actual Bodily Harm. Unfortunately in doing so, the court must record a conviction if it decides to fine the offender. When deciding the amount of the fine, the court must consider the offenders financial circumstances and their ability to pay the fine.
Community Correction Order (CCO):
A Community Corrections Order is a more serious form of good behaviour bond than a Conditional Release Order. In addition to the standard conditions that apply to all bonds, the court can also include a component of community service with a Community Corrections Order.
Community Corrections Order can be made for a period of up to 3 years.
In more serious cases of Assault Occasioning Actual Bodily Harm, or repetitive offending, the court may impose harsher sentences including the following:
Intensive Correction Order (ICO):
An Intensive Corrections Order is a term of imprisonment, however instead of the offender going to prison, they serve the sentence within the community whilst under the supervision of Community Corrections.
As part of the Intensive Corrections Order the court can add a number of conditions including, community service, house arrest, alcohol abstinence, counselling or treatment and amongst other conditions a curfew.
Although it is not common, a sentencing court can impose a term of full-time imprisonment for an offence of Assault Occasioning Actual Bodily Harm. Our Sydney Criminal Law Team will advise you on the likelihood of a full-time custodial sentence being imposed.
What should I prepare for my sentence?
It is in the offender’s best interests to put before the court all relevant information that the court will need to consider on sentence. This can be done by obtaining character references, writing an letter of apology, obtaining reports and other relevant documents. It is helpful to also explain any personal circumstances or recent events that may have led to the commission of the offence. The following is some of the material that should be obtained:
Character references can be written by friends, family members or work colleagues and they can help express to the court that the offender’s actions were out of character. They can also assist in corroborating the offender’s attitude towards their offence and the other subjective factors in their case.
- Write a Letter of Apology
A letter of apology can help express the offender’s genuine remorse, shame, embarrassment and acceptance. It is also an effective way of detailing the offender’s subjective circumstances, including the impacts of a criminal conviction.
- Enter a plea of guilty at the earliest opportunity
If a plea of guilty is inevitable, entering a plea of guilty at the earliest opportunity is in the offender’s best interests as it shows the offenders willingness to accept responsibility for their actions and it requires the court to give the offender the maximum discount of 25% on the sentence.
- Take part in rehabilitation
Participating in voluntary rehabilitation programs such as anger management sessions or seeking professional help through a psychologist is a good way of showing the court that an offender is willing to change and better themselves. The sentencing court must give weight to the rehabilitation that an offender has undertaken.
Why should I choose Australian Criminal and Family Lawyers?
Our highly experienced Sydney Criminal Defence Lawyers are experts at dealing with offences of Assault Occasioning Actual Bodily Harm charges. We appreciate how important it is for our client’s to avoid the burden of a criminal conviction and we fight to keep our clients records clean. Our familiarity and knowledge of the laws are second to none which means that you can rest assured that you are getting Sydney’s Best Criminal Law Team on your side.
Our Sydney Criminal lawyers are ready to take calls 24 hours, 7 days a week. Call us now on 1300SILENT (1300-745-368) or alternatively 0448 142 113 to get immediate legal advice.