Assault Charges are some of the most common that are laid in NSW. Being charged with such an offence must be taken seriously as severe penalties can be imposed.
Offences range from Common Assault NSW (whether in a domestic setting or otherwise) to more serious forms of offences against the person, such as reckless wounding and inflicting grievous bodily harm. The range of offending covers anything from a mere touching of another to using a weapon to inflict serious injury.
Often, assaults are alleged to have occurred in circumstances where conflict has arisen between two or more people. In such circumstances, self-defence can often be raised.
In deciding to lay assault charges NSW Police generally rely heavily on a complaint made by the alleged victim, however, there are circumstances where someone can be charged with and found "guilty" of an assault even where a victim has not given a statement.
Prime Lawyers have vast experience in representing people accused of assault offences. We are experienced in successfully defending allegations and, where necessary, representing those who have pleaded "guilty" to an assault offence and obtaining a lesser penalty on sentence.
If you are facing assault charges (NSW) and require legal assistance, we invite you to contact your nearest Prime Lawyers office.
We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.
Common assault is the least serious of the assault offences and at the same time, the most common form of assault charge that comes before the Courts. Police often charge people with this offence and, in a domestic setting, it will always be accompanied by a domestic AVO. Despite being the least serious form of assault, it can sometimes result in a term of imprisonment upon a finding of guilt.
When charging someone with Common Assault Police often lay the charge as a "back up" charge to more serious assault charges.
The Law
A common assault offence can be committed in two ways and the elements of the offence are as follows:
1. By physical contact - this means that the accused person is alleged to have physically assaulted the victim, usually by some form of striking. The old, common reference to this type of assault is "battery".
2. By conduct - this is where the accused person's actions are alleged to have caused the victim fear of imminent physical harm.
Generally speaking, a common assault charge by physical striking is laid where the assault does not cause any lasting injury.
Penalties
The maximum penalty for common assault is imprisonment for 2 years.
Commentary
The obvious forms of common assault usually involve an intentional striking of another, without a lawful excuse. However, it is important to note that a physical assault can be committed in circumstances that most people would not normally consider to be an assault.
There is a misconception that there must be a form of striking or, at the very least, a physical act committed in anger. The law makes it clear that any unwanted form of touching can constitute an assault. The exception is where the touching is incidental to the ordinary course of our daily lives.
An example of a form of assault that can be committed where the touching is not in anger and there is no intention to hurt the other, is where a couple is arguing and, as one party turns to walk away, the other grabs that person's hand and tries to calm that person down.
The above example and various forms of that example of common assault often occur in a domestic setting.
It is important to take into account the relationship between the parties and the context of the circumstances of the touching to determine whether it can be argued that, despite the common approach taken by police and the Courts, an assault has still not occurred.
The other important aspect of common assault charges is that the prosecution does not need to prove that the accused person intended to physically assault the victim or, did not intend to place the victim in fear of imminent physical harm.
It is sufficient for the prosecution to prove that the accused person was reckless as to whether their actions could result in some form of assault. Although this may appear to be a low threshold to meet, it is important to have a proper understanding of the legal definition of recklessness and how it applies to assault offences.
Self Defence
It is common where allegations of common assault have been made for the accused person to admit to striking the victim, however, still argue that they are not guilty of the offence, due to acting in self-defence.
Pursuant to section 418 of the Crimes Act 1900,
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.
When an accused person relies on "self-defence", it is typically on the ground that they were defending themselves.
It is important to note that the accused person is not required to prove the defence to any requisite standard but instead, needs only to sufficiently raise it based on the evidence in the case. Once self-defence is sufficiently raised, then it is for the prosecution to prove that the accused person was not in fact acting in self-defence.
Despite the availability of the defence and that it may appear that it is an easy process to raise the defence and then succeed in doing so, it is a defence that often fails, particularly if the case is not run properly.
The Court has to first find that the accused person was acting for the purpose of defending themselves but more importantly, that it was necessary to do so. Although this is a subjective test (in other words, it comes down to whether or not in the circumstances the accused person themselves found it necessary to act the way they did), the circumstances may strongly suggest that it was not a necessary act and therefore, it may not be accepted that the accused's actions were in fact perceived as necessary. This part of the defence, however, is difficult to disprove beyond a reasonable doubt.
Where the defence typically fails is during consideration of the second part of the defence - namely, that the accused's actions were reasonable under the circumstances. This is an objective assessment (in other words, it comes down to whether the Court believes that the conduct was reasonable, not the accused), however, must still take into account how the accused person actually perceived the circumstances (even if the circumstances turned out to not be as perceived by the accused).
Careful consideration needs to be given to whether a set of circumstances could give rise to a strong self-defence argument when defending a common assault charge, particularly where a court comes to its own determination as to whether certain actions are a reasonable response to a perceived threat. An argument needs to be carefully crafted to persuade a Court to find that the conduct was first necessary and then reasonable under the circumstances.
Prime Lawyers have experience in successfully defending common assault charges, either by discrediting the prosecution case or after having argued the availability of self-defence.
If you have been charged with a common assault offence, our experts at Prime Lawyers - Criminal Law Division can help. Contact us to make an appointment with a criminal lawyer at your nearest Prime Lawyers office.
We have criminal lawyers located at Sydney, Parramatta, Chatswood, Sutherland and Wollongong.
Assault occasioning actual bodily harm is the second most serious form of assault. It is applicable where an alleged assault has resulted in injury which usually is not permanent, for example where a person’s skin is broken. It is possible that you can be imprisoned for assault occasioning actual bodily harm and thus you should take this charge seriously. The basic elements of the offence and matters to be taken into account when considering whether or not an assault has occurred are the same as those for Common Assault. Of course, the additional element to this offence is that there needs to be some form of actual bodily harm.
The Law
Pursuant to section 59 of the Crimes Act 1900, whosoever assaults any person, and thereby occasions actual bodily harm, has committed an offence.
An aggravated (or more serious) form of the offence is where the person assaults another person, occasioning actual bodily harm and does so in the company of another (Assault Occasioning Actual Bodily Harm in Company).
Penalties
The maximum penalty for assault occasioning actual bodily harm is imprisonment for 5 years.
The maximum penalty for assault occasioning actual bodily harm in the company of another person or persons is imprisonment for 7 years.
If the charge is finalised in the Local Court, where most of these charges are finalised, the maximum penalty is imprisonment for 2 years.
Commentary
It does not take much for "actual bodily harm" to be occasioned. The law holds that to amount to bodily harm, there must be an injury that, although not being permanent, is more than "merely transient or trifling". This means that a feeling of pain is not of itself enough. Common examples of injury such as scratches and bruising are considered to amount to actual bodily harm. Somewhat surprisingly, the Courts have even found that psychological harm, to a substantial degree, can amount to actual bodily harm.
It is also not necessary for the prosecution to prove that the accused person intended to cause any harm to the victim to be found guilty of the offence. As long as it is proved that there was an intention to assault the victim or that the accused was reckless as to whether their actions would amount to an assault, if actually bodily harm is occasioned as a result of the assault, then the accused is guilty of the offence.
Just like other forms of assault where some harm is occasioned, the Court must take into account the seriousness or viciousness of the assault, along with the resulting injury, as important factors when determining what penalty to impose on an offender when sentenced.
If you have been charged with assault occasioning actual bodily harm, our experts at Prime Lawyers - Criminal Law Division can help. Contact us to make an appointment with a criminal lawyer at your nearest Prime Lawyers office.
We have offices in the Sydney CBD, Parramatta, Chatswood, Sutherland and Wollongong.
Reckless wounding (or malicious wounding) and recklessly causing grievous bodily harm (GBH) are serious offences. The difference between the two types of offences is the injury that is inflicted. There are also different maximum penalties that each type of offence attracts.
4. Recklessly inflicting grievous bodily harm in the company of another
Penalties
The maximum penalty for reckless wounding is a term of imprisonment for 7 years.
The maximum penalty for reckless wounding in company is imprisonment for 10 years.
The maximum penalty for recklessly causing grievous bodilyharm is a term of imprisonment for 10 years.
The maximum penalty for recklessly causing grievous bodily harm in company is imprisonment for 14 years.
Commentary
The distinction between the two types of offences is the type of injury occasioned or received. "Wounding" is not defined in the legislation but instead finds its legal definition in the common law (ie, cases determined by Judges). A wound occurs when there is breaking of the skin; essentially, a cut. For that reason, different degrees of injury can fall into the category of a wound; some more serious than others and some, relatively minor. The Courts have also held that the injury does not need to be caused by a weapon or implement to amount to a wound when considering the offence of reckless wounding.
The term "grievous bodily harm" is defined at section 4(1) of the Crimes Act to include any permanent or serious disfiguring of the person, the destruction of a foetus, and any grievous bodily disease. The "definition" in the legislation is not all-inclusive and the Courts have held that the words “grievous bodily harm” should be given their ordinary and natural meaning. It has been held that "grievous" simply means "serious". Just like a reckless wounding offence, the way that grievous bodily harm is inflicted can vary and the Courts have held that overall, the seriousness of a wounding of reckless grievous bodily harm offence can be assessed by the viciousness of the attack and the severity of the injuries.
To be found guilty of any of these offences, the prosecution must prove that there was an intention to assault the victim, however, it does not need to prove that the accused intended on wounding the victim or causing grievous bodily harm, nor that the accused was aware that the type of harm would be caused. The prosecution previously had to prove that the defendant turned his or her mind to the possibility of the type of harm (eg, wounding or grievous bodily harm of some sort) occurring, but acted anyway.
Since amendments were made to that aspect of the law, the prosecution now needs to only prove that the defendant turned his or her mind to the possibility of actual bodily harm being inflicted, and still proceeded to act. This has lowered the threshold of what needs to be proved by the prosecution, considerably. In most cases where wounding or grievous bodily harm is inflicted, if it is due to the force of the assault itself, then it will be more likely that a Court or a jury would find that the defendant did in fact consider the possibility of at least actual bodily harm being inflicted.
Of course, aside from the prosecution still being required to prove all the elements of the charge beyond a reasonable doubt, the defendant still has available the possible defence of "self-defence".
If you have been charged with reckless wounding or recklessly causing grievous bodily harm, our experts at Prime Lawyers - Criminal Law Division can help. Contact us to make an appointment with a criminal lawyer at your nearest Prime Lawyers office.
We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.
Our Assault Lawyers Sydney have represented hundreds of clients facing various types of assault charges over the years.
We are experiencedCriminal Lawyers Sydney and NSW based that are known for successfully defending assault charges in Courts all throughout the Sydney Metro and broader NSW.
We have assisted many clients in avoiding criminal convictions, either by successfully defending charges or negotiating lesser charges and then obtaining a non-conviction on sentence.
Charges vary from common assault, to assault occasioning actual bodily harm to more serious assaults such as malicious wounding. Often, when laying a charge of common assault NSW Police do so as a "back up" charge to more serious offences, which often means that clients originally face multiple charges as a result of one incident.
In those circumstances, our experienced criminal solicitors have the ability to defend more serious charges through self-defence or by showing that the police cannot prove that our client caused the alleged injury. Sometimes, we are able to persuade the police before the matter goes to Court that they cannot prove the more serious offence and are able to negotiate a plea of "guilty" to common assault, instead. This can often prove the difference between going to gaol and at times, avoiding a criminal conviction.
Most assault charges are dealt with in the Local Court, however, it must be understood that all assault charges are conspired to be serious in nature and it is therefore important to obtain the services of an experienced criminal lawyer when going to Court.
Our criminal lawyers have the necessary knowledge, experience and advocacy skills to defend the most difficult allegations and also, competently represent people charged with the most serious of assault offences. (For further information on the services we provide, feel free to peruse our section on Assault Charges NSW)
Assault offences often go hand in hand with AVOs and domestic violence. We employ criminal lawyers with special expertise in AVO matters. When a domestic AVO Application is combined with an assault charge, there is an added level of complexity when it is being defended, so it is important to obtain the services of an experienced domestic violence lawyer in these circumstances.
Our lawyers work from our Sydney head office and are also available from our other various office locations. This means that we can meet with clients at various locations for their convenience and attend most major NSW Courts.
If you have been charged with an assault offence of any kind, we invite you to contact us to speak to one of our Assault Lawyers Sydney, Parramatta, Chatswood, Sutherland or Wollongong.
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