Regardless of whether this is your first offence or whether your previous criminal history means that you may be facing a possible custodial sentence, Bainbridge Legal can provide you with the advice and representation you require for your assault matter. Our lawyers have criminal law experience in both Commonwealth and State jurisdictions for a range of criminal matters such as assaults (including domestic violence and AVO matters), and a wide variety of more serious violent offences. We can make an application for bail (or for a variation of bail conditions) on your behalf.
The offence of common assault is provided for under Section 61 of the Crimes Act 1900 which states:
“Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.”
An assault is any act where a person intentionally (or recklessly) causes another person to apprehend immediate and unlawful violence. Assault includes the apprehension of injury and does not necessarily involve physical contact with the person assaulted. In other words, physical contact or violence is not an essential element of the assault. An element of assault is a lack of consent from the victim.
Common assault is punishable by a maximum term of imprisonment of 2 years.
The offence of assault occasioning actual bodily harm is contained within Section 59 of the Crimes Act 1900 which provides:
"Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years."
The legislation does not define what constitutes "actual bodily harm" - this is defined by reference to case law. In summary, actual bodily harm mean hurt or injury calculated to interfere with the health or comfort of the victim. It does not need to be a permanent injury, but it must be more than merely "transient or trifling". 'Actual bodily harm' is something less than ‘grievous bodily harm’ (which requires really serious physical injury) and ‘wounding’ (which requires breaking of the skin).
Assault occasioning actual bodily harm is punishable by a maximum term of imprisonment of 5 years, or 7 years if the offence was committed in company.
Defences to Assault
Section 418 of the Crimes Act 1900 (NSW) provides that a person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. Self defence is defined within the legislation as follows:
A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,
and the conduct is a reasonable response in the circumstances as he or she perceives them.
In New South Wales, provocation is not a defence to assault. This is different to other jurisdictions, such as Queensland for example, where a person is not criminally responsible for a provoked assault if the person is in fact deprived (by the provocation) of the power of self-control, and acts upon it on the sudden and before there is time for the person's passion to cool.
assaults - domestic violence related
Section 39 of the CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 provides that an apprehended violence order must be made on guilty plea or guilt finding for certain offences. Section 39 provides:
(1) If a person pleads guilty to, or is found guilty of, an offence against section 13 or a domestic violence offence (other than murder, manslaughter or an offence under section 25A of the Crimes Act 1900 ), the court hearing the proceedings must make an apprehended violence order for the protection of the person against whom the offence was committed whether or not an application for such an order had been made.
(2) However, the court need not make an apprehended violence order if it is satisfied that it is not required (for example, because an apprehended violence order has already been made against the person).
(3) A reference in this section to a court extends to the District Court when exercising jurisdiction apart from under section 91.