What is Common Assault?
In New South Wales, the offence of a common assault is found in Section 61 of the Crimes Act 1900 (NSW). A common assault is an assault in which no injury is occasioned to the victim, or the injuries are merely transient or trifling. If an injury is occasioned, this would amount to a more serious charge of assault depending on the severity of the injury.
The charge of common assault does not in fact require the use of physical force. An offence of common assault can also include threats of violence with no physical contact, if the threat places the victim in fear of imminent harm.
Some examples of common assault include the following:
- Striking at another person, regardless of whether contact is made;
- Striking at a person with an object, regardless of whether contact is made;
- Spitting at another person, regardless of whether contact is made.
- Pushing an object that the other person is on, thereby causing the other person to fall off.
What does the Prosecution have to Prove to the Court?
To make out an offence of common assault, the prosecution must prove beyond reasonable doubt that:
1- That the accused person either:
a) 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; or
b) threatened conduct (threats of immediate violence) towards another person by placing them in fear of imminent harm;
2. That the accused did so intentionally or recklessly;
3. That the accused did so without the consent of the person;
4. That the accused did so without lawful excuse.
Defences to Common Assault
Although there are a range of defences available at law, the most common defence in cases of common assault is self-defence. If a person is genuinely acting only to defend themselves, they cannot be found guilty of common assault. However, self-defence is narrowly defined, and a person cannot do more than what is necessary to either stop the other person from continuing with the assault, or to enable themselves to escape.
Self-defence is set out in section 418(2) of the Crimes Act 1900 (NSW) as follows:
A person carries out conduct in self-defence if the person believes the conduct is necessary:
1- to defend himself or herself or another person;
2- to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person or;
3- to protect property from unlawful taking, destruction, damage or interference;
4- to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass.
The conduct is a reasonable response in the circumstance as he or she perceives them.
As per the legislation above, to successfully raise self-defence, an accused person must satisfy the court with respect to two tests. The first step is a subjective test that is solely relevant to the mind of the accused person at the time, being that, in the mind of the accused, he or she believed it was necessary to defend themselves, another person, or property from a perceived threat. The second test is an objective test, considering objectively whether the accused person’s conduct in the circumstances was reasonable.
There is a fine line between self-defence and retaliation, however the law does not excuse acts done in retaliation. An example of a person acting in self-defence might be pushing another person away who is rushing at them with their fists raised. However punching a person in the back of the head who had just spat at them and walked away would not constitute self-defence, but rather an act done in retaliation. At best the act originally committed by the victim may be considered as an element of provocation which would act as a mitigating factor on sentence. Provocation is considered in further detail below.
Which Court are Common Assault Cases heard in?
Common assaults are most commonly heard in the Local Court, unless the prosecution decides to have your case heard on indictment in the District Court. If the matter remains in the Local Court, the case is heard before a Local Court Magistrate alone. If heard in the District Court, the case is determined by a District Court judge and additionally a 12 member jury panel in circumstances of a plea of not guilty.
If I Plead Guilty What Factors will the Court take into Consideration in Sentencing?
There are many factors that the Court will take into account on sentencing. These include both objective and subjective features of the case. Based on those factors the Court will determine the appropriate penalty and whether or not to record a criminal conviction.
One of the most important factors at sentencing is how objectively serious the particular offence is when compared to other offences of common assault. In making that finding, the court can consider the following factors relevant to objective seriousness of a common assault:
Mode of Assault
How the assault was carried out and the form of striking that was used. For example, a push is considered less serious than a punch.
How long the assaulted lasted. The longer the duration of the assault the more serious it is generally considered to be.
Location of Assault
If the assault occurs in a public setting or at the home of the victim, it can be considered an aggravating factor.
Whether the decision to carry out the common assault was an unplanned or spontaneous reaction. The more planning involved, the greater the moral culpability of the offender.
As discussed above, provocation is not a defence at law in New South Wales, however it can be considered as a mitigating factor on sentence. The amount of weight given to provocation will depend on the severity of the provoking conduct.
Age of the Victim
If the victim is young, or if there is a large age gap between the offender and the victim, the objective seriousness of the assault may be increased.
The Court must also take into account the subjective factors of an offender at sentencing. 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.
Prior Criminal Record
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.
Good character can be demonstrated by community involvement, and general compliance with the law. It 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.
Must be considered 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.
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.
The steps taken by the offender towards rehabilitation play 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.
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 a Common Assault?
The maximum penalty for a common assault is 2 years imprisonment or a fine of $5,500.00 if the matter is dealt with in the Local Court. The maximum penalty is reserved for the most serious case of common assault.
Possible Penalties for Common Assault
The Court has a wide range of sentences available to it under the law. A person can receive a sentence where no criminal conviction is recorded or alternatively where a criminal conviction is recorded:
If the Court decides not to enter a criminal conviction, the court can impose the following sentences:
Section 10(1)(a) – No Conviction Recorded
A dismissal under Section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 is the lightest sentence that a Court in NSW can impose on an offender. It means that despite the Court finding the person guilty of the offence, the Court will discharge the person without recording a conviction on their criminal record and the Court will not impose any other penalty.
Section 9(1)(b) Conditional Release Order (CRO) without Conviction (formally known as a section 10 bond)
A Court may also sentence an offender to a CRO. A CRO is a good behaviour bond that can be imposed with or 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 CRO 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.
Outcomes with Conviction:
If the court determines that a conviction is necessary, the most common sentences that a court will impose in a case of common assault are as follows:
A section 10A is a sentence where a criminal conviction is recorded, however no other penalty is imposed.
Section 9(1)(a) Conditional Release Order (CRO) with Conviction
A CRO made under section 9(1)(a) is identical to the section 9(1)(b) bond as discussed above. However, under this section the bond is imposed with a conviction.
A Court can impose a fine on an offender charged with common assault, however a Court must record a criminal conviction if it decides to do so. 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 CCO is a more serious form of bond where in addition to standard conditions and supervision, the Court can also include a component of community service.
Courts can also impose a term of imprisonment for an offence of common assault. This can either be a fulltime imprisonment or a term of imprisonment that is served in the community by way of an Intensive Corrections Order. Our Sydney Criminal Law Team will advise you on the likelihood of a 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. This can be done by obtaining character references, writing a 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
Entering a plea of guilty at the earliest opportunity 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 common assault 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.