Assault Charges and Penalties under Australian Law

Article Katrina Beltran 27 May 2024

An assault offence is defined as an act that intentionally or recklessly causes another person to apprehend immediate and unlawful violence.  At a time when violence appears to be on the increase in Australia, it is important to understand what constitutes assault - whether you are a victim or an alleged perpetrator - and what legal penalties and defences are in place for those who are charged.

 

What constitutes “assault”?

Assault can be categorised into various levels of severity, from common assault to aggravated assault, each carrying different legal implications and penalties. However the key elements of assault remain the same regardless of severity:

  1. Intent or Recklessness - the perpetrator must have intended to cause fear and/or harm or acted recklessly in doing so, knowing that their actions could cause harm.
  2. Apprehension of Violence - the victim must have been put in fear of immediate and unlawful violence. Physical contact is not necessary for an act to be considered assault; the threat alone can be enough to be considered an assault. The fear is the essence of the assault.
  3. No consent to the behaviour constituting the assault - that the victim did not consent to the conduct of the perpetrator.
  4. Unlawfulness - the act must be without lawful justification or excuse.

 

What are the different types of assault?

Common Assault

This is the most basic form of assault and involves actions that cause another person to fear immediate unlawful violence. It can include threatening behaviour, attempted physical violence, and minor physical contact (e.g. a shove or a slap).

The maximum penalty for common assault is two years’ imprisonment.  Other penalties that can be imposed for this offence include a fine or a Conditional Release Order or Community Corrections Order.  Under these orders, you are required not to commit a further offence for a period of time.  If you do commit a further offence, you can be resentenced for the original offence and have a harsher penalty imposed.

 

Assault Occasioning Actual Bodily Harm

Actual bodily harm includes any injury which interferes with the health or comfort of the victim, including scratches and bruises. It ranges from minor to severe physical interactions such as punching, kicking or hitting with an object.  It may also include serious and prolonged psychological injury, which is defined as mental harm that is more serious than temporary emotions or feelings.

Penalties that can be applied for actual bodily harm can vary depending on the severity of the injuries, the Court in which the case is heard and the individual circumstances of the offence.  Maximum prison sentences (in NSW) can range from 5 years, and 7 years if the assault is committed in company.

 

Causing Grievous Bodily Harm with Intent

Causing grievous bodily harm with intent is charged when:

  • The accused caused grievous bodily harm to another, and
  • They intended to cause grievous bodily harm.

Grievous bodily harm requires a serious or permanent injury, which will cause the victim ongoing problems, and can include:

  • The destruction of the foetus of a pregnant woman.
  • Any permanent or serious disfiguring.
  • Any grievous bodily disease.

If someone is found guilty of causing grievous bodily harm with intent, the maximum penalties (in NSW) can range from 7 to 14 years imprisonment depending on the type of grievous bodily harm charged.

 

Assault causing death

In NSW this offence replicates similar “one punch” offences in other jurisdictions, and creates an alternative offence to manslaughter. For this assault to be proven, the following must be proven :

  • the perpetrator assaulted the victim,
  • by intentionally hitting the victim with any part of the accused’s body or an object held by the accused,
  • that the assault was without authorisation or lawful excuse, and,
  • that the assault caused the victim’s death.

This offence can be aggravated by the perpetrator’s age (18 years or above) and if the perpetrator was intoxicated by alcohol, or drugs or both.

If someone is found guilty of assault causing death, the maximum penalty is 20 years, and 25 years if it is aggravated.

 

Aggravated Assault

Whilst there is no specific offence of “aggravated assault” in NSW, there are a number of aggravating factors which will be considered in sentencing including:

  • Use of a weapon
  • Assault causing significant injury and the extent of the injuries
  • Assault on vulnerable persons (e.g., children, elderly)
  • Assault in the context of family or domestic violence
  • Assault committed on a person working with the public or in a public space (such as a police and other law enforcement, frontline emergency and health workers, retail workers, at or near schools)
  • If the Assault was committed in breach of bail, parole, a good behaviour bond, or an AVO
  • If there is a criminal record for similar offending behaviour.

If an assault took place in circumstances of aggravation, the penalties applied will be more severe and imprisonment more likely.

 

What are the different defences that can be used against assault charges?

If an individual has been charged with an assault there are several defences that can be raised against the charges.  Depending upon the type and severity of the assault, the individual may claim that:

  • They acted in self-defence to protect themself or another person from harm.
  • They acted under ‘duress’, in that they were forced to commit the assault under threat of harm.
  • They were suffering from mental impairment and were not of sound mind, and could not understand the nature of their actions.

 

Have you been charged with assault?

Assault in Australia encompasses a wide range of behaviours and the penalties will vary according to the nature and severity of the offence.  Understanding the definitions and consequences of assault is crucial to navigate the legal landscape effectively. 

If you have been charged with assault, contact CDQ Solicitors for advice on ph: 02 8566 0130.  We can provide advice, assistance and representation when you need it most.

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