Aggravated Assault

Aggravated assault is an assault committed in “circumstances of aggravation” which thereby constitutes a more serious assault. This means that it has features present in the assault that constitute an aggravation, heightening the seriousness of the assault, which ordinarily warrants a heavier punishment. There are three main features that can aggravate an assault, namely, the extent and nature of the injuries inflicted on the victim; the mental element of the offence between intention to commit it and recklessness; and the extent of violence used or ferocity of the attack.

An assault is the intentional and voluntary act that causes an apprehension of immediate and unlawful violence (or fear) or inflicts unlawful force without consent, either intentionally causing this or recklessly causing this without a lawful excuse. An assault can be committed without applying any physical force on a person or by applying physical force. The application of physical force for a common assault offence is a more serious common assault compared to an assault without the application of any physical force.

Aggravated assault include common assault, assault occasioning actual bodily harm, reckless wounding or grievous bodily harm assault, choking and many more, including aggravated sexual assault and murder. These offences are indictable and serious indictable offences in New South Wales which can result in a criminal conviction and in worst case scenarios, imprisonment. It is crucial to get timely and reliable legal advice from a lawyer experienced in criminal law.

What is Aggravated Assault vs Assault?

An aggravated assault is a more serious assault. An assault will turn into an aggravated assault if it occurs in circumstances of aggravation. Section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) outlines a list of non-exhaustive factors that can turn an assault into an aggravated assault, which include the following:

1. If the victim was a police officer, emergency service worker, health worker, teacher, community worker and the offence arose because of the victim’s occupation or voluntary work.
2. The offence involved the actual or threatened use of a weapon or actual or threatened use of violence.
3. The offence involved the offender causing the victim to take, inhale or be affected by narcotic drug, alcohol or any other intoxicating substance.
4. The offender has a record of previous conviction (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences).
5. The offence was committed in company of another one or more persons or the offence occurred in the home of the victim or any other person
6. The assault involved gratuitous cruelty.
7. The injury, emotional harm, loss or damage caused by the assault was substantial.
8. The assault was partially or wholly motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, gender identity, sexual orientation or age, or having particular variations of sex characteristics or a particular disability).
9. The offence was committed without regard for public safety.
10. The actions of the offender were a risk to national security.
11. The offence involved a grave risk of death to another person.
12. The offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence.
13. The offender abused a position of trust or authority in relation to the victim
14. The victim was vulnerable. For example, because the victim was very young or very old or had a disability, because of the geographical isolation of the victim or because of the victim’s occupation (such as a person working at a hospital), taxi driver, bus driver or other public transport worker, bank teller or service station attendance.
15. The assault involved multiple victims or a serious of criminal acts.
16. The offence was part of a planned or organised criminal activity.
17. The offence was committed for financial gain.

If the aggravating factor(s) listed above is an essential element of the assault offence, then it must not be taken into account as aggravating the assault.

What is Aggravated Sexual Assault?

Aggravated sexual assault is a sexual assault committed in circumstances of aggravation. Circumstances of aggravation includes a range of circumstances, including the following:

• At the time of or immediately before or after the sexual assault, the offender intentionally or recklessly inflicts actual bodily harm on the victim or any other person who is present or nearby, or
• At the time of, or immediately before or after the sexual assault, the offender threatens to inflict actual bodily harm on the victim or anyone else present or nearby by means of an offensive weapon or instrument, or
• At the time of, or immediately before or after the sexual assault, the offender threatens to inflict grievous bodily harm or wounding on the victim or any other person present o nearby, or
• The offender is in the company of another person or persons, or
• The victim is under the age of 16 years, or
• The victim is under the authority of the offender, or
• The victim has a serious physical disability or a cognitive impairment, or
• The offender breaks and enters into a dwelling-house or other building with the intention of committing the sexual assault or any other serious indictable offence, or
• The offender deprives the victim of his or her liberty for a period before or after the sexual assault.

Aggravated Indecent Assault

Indecent assault is when a person who assaults another person and at the time of or immediately before or after it commits an act of indecency on or in the presence of the other person. These offence were prescribed by section 61L of the Crimes Act 1900 (NSW). The offence of aggravated indecent assault was prescribed by section 61M(1) and 61M(2) of the Crimes Act 1900 (NSW). The indecent and aggravated indecent assault offences were repealed with effect from 1 December 2018 by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018. This has been replaced with a new offence called sexual touching under section 61KC and Aggravated sexual touching under section 61KD of the Crimes Act 1900 (NSW).

Aggravated indecent assault carries a sentence of up to 7 years imprisonment.

Aggravated indecent assault committed on or in the presence of a person under the age of 16 years carries a sentence of up to 10 years’ imprisonment.

Sexual touching carries a sentence of up to 5 years imprisonment prescribed in section 61KC of the Crimes Act 1900 (NSW). While aggravated sexual touching carries a sentence of up to 7 years imprisonment prescribed by section 61KD of the Crimes Act 1900 (NSW).

Sentences and Penalties for Aggravated Sexual Assault

The offence of sexual assault is when any person has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to a maximum penalty of up to 14 years imprisonment prescribed by section 61I of the Crimes Act 1900 (NSW). When sexual assault occurs in circumstances of aggravation the offender is a section 61J offence of aggravated sexual assault under the Crimes Act 1900 (NSW) which carries a maximum sentence of up to 20 years’ imprisonment.

The offence of aggravated sexual assault in company under section 61JA of the Crimes Act 1900 (NSW) carries a maximum sentence of life imprisonment. This is when a person has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse, and who is in the company of another person or persons, and who:

1. at the time of, or immediately before or after, the sexual assault, intentionally or recklessly inflicts actual bodily harm on the victim or any other person present or nearby, or
2. at the time of, or immediately before or after, the sexual assault, threatens to inflict actual bodily harm on the victim or any other person present or nearby by means of an offensive weapon or instrument, or
3. deprives the victim of his or her liberty for a period before or after the sexual assault.

Aggravated Assault Sentences and Penalties | Minimum Sentences for Aggravated Assault

The follows are prescribed penalties for each of the following types of assault offences in New South Wales:

• Common assault carries up to 2 years imprisonment.
• Assault with intent to commit a serious indictable offence carries up to 5 years imprisonment.
• Assault occasioning actual bodily harm carries up to 5 years imprisonment.
• Assault occasioning actual bodily harm in company carries up to 7 years imprisonment.
• Reckless wounding carries up to 7 years imprisonment with a 3 year standard non-parole period.
• Reckless wounding in company carries up to 10 years’ imprisonment with a 4 years standard non-parole period.
• Reckless infliction of grievous bodily harm carries up to 10 years’ imprisonment with a 4 years standard non-parole period.
• Reckless infliction of grievous bodily harm in company carries up to 14 years imprisonment with a 5 years standard non-parole period.
• Wound or inflict grievous bodily harm with intent to cause grievous bodily harm or resist arrest carries up to 25 years imprisonment with a 7 years standard non-parole period.
• Use or possess weapon to resist arrest carries up to 12 years’ imprisonment.
• Assault causing death carries up to 20 years’ imprisonment.
• Assaulting causing death when intoxicated carries up to 25 years’ imprisonment.
• Choke, suffocate or strangle carries up to 5 years imprisonment.
• Choke, suffocate or strangle being reckless as to rendering other unconscious carries up to 10 years’ imprisonment.
• Choke, suffocate or strangle and render unconscious, with intent to commit serious indictable offence carries up to 25 years’ imprisonment.
• Administer intoxicating substance carries up to 25 years’ imprisonment.

Assaulting law enforcement officers and frontline emergency and health workers carry heavy penalties ranging up to 14 years imprisonment.

Defences for Aggravated Assault

The available defences to an aggravated assault include:

1. Self-defence
2. Lawful Correction
3. Duress
4. Necessity

A common defence to an aggravated assault in criminal proceedings is self-defence. This defence is a lawful excuse to an assault and results in the acquittal of the charge(s) against the accused person if the accused person committed the aggravated assault for their own protection (or protection of another or property) and it is considered a reasonable response by the accused person in the circumstances that he or she perceived them at that time, not taking into account any self-induced intoxication when making that assessment. The test for self-defence is fairly straight forward but needs to be applied to the circumstances of the case to determine the prospects of success. An experienced criminal defence lawyer will be able to advise this.

The less commonly used defence to an aggravated assault is the defence of lawful correction which is an excuse to an assault that will result in the accused person being acquitted. Lawful correction is where physical force is applied to a child, and that force was applied for purposes of punishment; and the force was applied by the parent of the child or by a person acting for a parent of the child; and the force was reasonable having regard to the child’s age, health, maturity, or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances, pursuant to section 61AA(1) of the Crimes Act 1900 (NSW).

The application of physical force is not reasonable if the force is applied to any part of the head or neck; or the force is applied to any other body part in such a way as to be likely to cause harm to the child that lasts for more than a short period.

Other defences to an aggravated assault which are not very commonly used in duress and necessity. Duress is when you are forced to commit the act constituting the assault caused by threats of serious injury or death. Necessarily is when an act of assault is committed to escape an emergency.

Examples of Aggravated Assault

A common assault involving the application of physical force on the victim is considered an aggravated version of common assault in contrast to a common assault that does not involve the application of physical force on a victim. An example of a common assault that does not involve the application of physical force is a threat that causes an apprehension of immediate and unlawful fear to the victim. An example of an aggravated common assault is the application of physical force to the victim multiple times over a long period of time where the intention was to cause about the injury.

An assault occasioning actual bodily harm is aggravated where the injury caused was intentionally caused to the victim in contrast to being caused recklessly. If the injury has caused ongoing complications to the victim after the assault, then this will generally constitute an aggravated assault.

Multiple bruises left on the victim caused by an actual bodily harm assault will constitute an aggravation generally warranting heavier punishment by the courts.

Committing an assault within the victim’s home in the presence of other people amounts to a circumstances of aggravation which will usually result in a heavier penalty if the offender is convicted.

Pleading Not Guilty to Aggravated Assault Charges

If you are innocent, your lawyer will attend court to formally enter a plea of not guilty to the charge(s) of aggravated assault. This then requires the prosecution to prove the offence against you beyond reasonable doubt. If the prosecution fails to prove this due to inadequate evidence or because of the strength of your defence then you will be acquitted of the charge(s) and your case will be dismissed.

If you take the option to plead not guilty then your case will be listed for a trial before either a judge alone or a 12 member jury panel who will hear all the evidence before being required to decide on a verdict of “guilty” or “not guilty”. It is vital to have an experienced criminal defence lawyer to represent you through these criminal proceedings from start to end.

A good lawyer will keep you updated throughout the course of your case and make you feel like you are part of a team working together to put you in the best position to get a successful outcome.

Pleading Guilty to Aggravated Assault Charges

You may instruct your lawyer to attend court to formally enter a plea of guilty to the charge of aggravated assault on your behalf for the Judge to then impose a sentence when the Judge will listen to further evidence before imposing an appropriate sentence.

Pleading guilty means that you accept committing the offence alleged and take responsibility for it but you want the court to take into consideration an explanation for your actions, your personal circumstances such as mental health, dependants, job, and any other factors that can reduce the sentence such as provocation from the victim, extent of injuries you caused and extent of hits you made to the victim, which may be different to what the police allege. This will usually require the need for your lawyer to negotiate the facts sheet before you are sentenced in court- to change the facts sheet to reflect more accurately as to what really happened and how it happened which can significantly reduce the sentence.

If pleading guilty, it is equally important to enter this plea at the right time to ensure you get the full 25% discount on the sentence for pleading guilty early in the case. Other discounts may be available on your sentence, including a discount for providing assistance to authorities and facilitating the course of justice.

Will I Get a Criminal Record from an Aggravated Assault Charge?

The Sentencing options available for a Judge to impose as a penalty upon a plea of guilty to an aggravated assault charge include any one of the following:

1. Dismissal without a conviction under section 10 or a Conditional Release Order with a good behaviour bond period.
2. Fine with conviction.
3. Conditional Release Order with conviction and a good behaviour bond period.
4. Community Correction Order with conviction and more stringent conditions including community service and supervision and treatment.
5. Intensive Correction Order with conviction and stringent conditions with supervision.
6. Full Time Imprisonment with conviction.

The sentence an offender received by the sentencing Judge will depend on the subjective and objective features of the case that can mitigation and aggravate the offence.

Speak to our criminal lawyers Sydney team to book a confidential consultation for more on this type of charge.

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