A Guide on Common Assault Offences in NSW

 

It is reported that 26-year-old Luke James Munday who was charged with assaulting his pregnant partner following an argument in their home, which was accidentally live streamed online as he was playing an online video game, has now pleaded guilty in court.

In December 2018, Luke, a Telstra engineer, was streaming his online video game Fortnite from his home in Oran Park when an argument erupted after his pregnant partner had requested that he stop playing so that he can have dinner with the family.

Following this, the webcam although failed to capture the actual assault, it managed to inadvertently record the audio.

While the live stream was still activated for viewing around the world. The audio could be heard.

“Can you not? I said I’d be out soon”.

“No computer. I’m sick of this s***”

“You f***ing woman basher.”

“The victim can be heard, yelling and screaming before a loud slapping sound is heard, followed by louder crying from the victim”, reflected in the agreed statement of police facts in court.

The incident is reported to have occurred in the presence of the couples 2 children.

The partner’s request for him to stop playing so that he can join them for dinner was ignored. It is reported that following this, she then approached him in the office area of the home where she made the same requests numerous times to no avail.

The partner then became so frustrated as to her ignored requests, she picked up and threw things at his computer and him.

He then reportedly alighted from his chair and slapped her face after having requested for her to stop.

After he sat back down on the chair, she commenced throwing more objects at him.

It was at this point in time, he took her to the ground before walking away.

He reportedly told police, “She went to grab my stuff and I got angry. I stood up ad slapped her on the cheek”.

“I grabbed her, and I thought I put her on the couch, but it must have been the floor”.

“I just held her down because I Wanted her to stop.”

Many people witnessed the video.

There were many negative comments that resulted from this, eventually leading to him being banned from the site.

While he pleaded guilty to a common assault charge on Monday at the Picton Local Court, Local Court Magistrate Ian Cheetham has adjourned his sentence to 26 August for sentence. Following the plea of guilty, Luke’s Apprehended Domestic Violence Order was made final for a period of 2 years to protect her.

She has also now been charged for assaulting him, facing charges of common assault, assault occasioning actual bodily harm and breaching an apprehended domestic violence order.

A Guide on Common Assault Offences in NSW

Committing a common assault offence will result in being required to appear in court where either a plea of guilty or not guilty must be entered.

If after hearing both sides of evidence, the Court finds you not guilty after you have pleaded not guilty in court, your charge will be dismissed, and you will be acquitted.

If after hearing both sides of evidence you’re found guilty by the Court or after you plead guilty in Court, you will be given a penalty as a sentence by the Court for committing the offence.

The offence of common assault carries a maximum sentence of up to 2-years imprisonment and/or a fine of up to $5,500 (section 61 Crimes Act 1900 (NSW)).

While this is a maximum penalty a court can impose for this offence, it is usually not imposed. There are other types of penalties which a court can impose other than full-time imprisonment.

While committing a common assault offence can result in a criminal conviction against your name, you can avoid a criminal conviction after pleading guilty to this offence if the court is convinced enough to impose a non-conviction penalty such as section 10(1)(a) dismissal or Conditional Release Order without conviction.

If charged with common assault, you will be acquitted (and the charge dismissed) either in court or before it reaches the hearing (through negotiations) if any one of the following defences to common assault apply to a case:

  1. If you acted in self-defence.
  2. If the physical contact was as a result of an inevitable contact or generally accepted by the community.
  3. If the person alleged to be the victim wasn’t aware of your actions that is said to be the assault.
  4. You used reasonable force considered warranted in the circumstances to exercise lawful correction to your child.
  5. You were exercising a lawful arrest, during which time the alleged assault occurred.

If charged with a common assault offence in NSW, the court will end up finding you ‘not guilty’ if the prosecution is unable to prove each of the following elements that make up the offence of common assault:

  1. Your voluntary actions caused either fear or caused an injury to the victim; and
  2. At the time of your actions, you either intended to cause such fear or injury or you foresaw the likelihood of causing ‘immediate fear or injury to the victim (but you ignored this risk and did it anyway).

Accordingly, common assault can even occur without physically touching the victim so long as your actions cause an immediate fear in the victim.

About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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