Complete Guide on Assault Charges, Penalties and Defences

Assault Charges NSW

What constitutes serious assault? What are the levels of assault charges, and what is the lowest form of assault? In this complete guide on assault charges we answer these questions, and more.

There are various types of assault charges, including aggravated assaults, bar fight assault charges, assault charges for first offences, non-physical and physical assault charges, verbal assault charges and so on.

In this complete guide, we also outline the defences to assault in NSW, how to drop assault charges against someone, and how to get simple battery charges dropped early.

Aggravated Assault

What is aggravated assault? An assault will be considered aggravated, in other words more serious, which will then warrant a heavier punishment on sentence where there are more aggravating factors present in an assault case.

The extent of violence used or the ferocity of an attack is relevant for a sentencing Magistrate or Judge to take into consideration when deciding on an appropriate penalty to impose on sentence.

What makes an assault aggravated? The objective seriousness of the assault is what guides a sentencing Judge as to whether there are, and if so how many aggravating factors there are present. This includes:

  1. Extent of injury caused to the victim
  2. Extent of premeditation and planning before committing the assault
  3. Degree of violence used
  4. Whether the assault was done with the intention to cause the harm or recklessness
  5. Whether there was any provocation by the victim

On the flip side, a penalty on sentence will likely be much lighter if an assault was spontaneous, involving provocation by the victim, with little to minimal level of violence and it was recklessly committed.

It is also critical to be aware of the De Simoni principal, which means that a Magistrate or Judge when deciding on an appropriate penalty on sentence, cannot take into account circumstance that would amount to a more serious offence as an aggravating factor.

For example, if you were being sentenced for a common assault offence, and the police facts say that the injury caused resulted in a broken bone to the victim. The fact the injury resulted in a broken bone would otherwise warrant a more serious offence of grievous bodily harm under the law. But the Judge is not allowed to then take this into account during sentence. The broken bone reference must be disregarded by the Judge.

This is reflected in the case of R v De Simoni (1981) 147 CLR 383 at 389.

What is the punishment for aggravated assault, and how many years can you get for aggravate assault really all depends on whether there are any and if so how many aggravating assault factors there are present in any one case.

The main difference between assault and aggravated assault is therefore the absence or presence of aggravating factors or objective seriousness of the assault.

Common Assault Charges | Penalties | Defences

Common assault NSW crimes act is a lesser serious type of criminal assaults. It can occur either with or without applying physical force on another person.

For a common assault sentence for a first offence, the penalty will usually be lighter than for a second or subsequence offender.

If found guilty, you could face serious penalties including jail, fine and a criminal record unless your charge gets dismissed or you plead guilty and manage to convince the Magistrate or Judge to impose a non-conviction section 10 sentence.

 

How Do You Prove Assault in Australia? | What the Police Must Prove in Court

You will be guilty of common assault if the prosecution can prove each of the following elements beyond reasonable doubt in court:

  1. You did something without consent, which caused the victim to either fear immediate and unlawful violence (where there was no physical force applied) or caused the victim unlawful physical force; and
  2. You did this either:
    1. Recklessly: where you realised the possibility of causing this, but did it anyway; or
    2. Intentionally: where you intended to cause this.

Can common assault charges be dropped? If you believe that there isn’t enough police evidence to prove any of the above elements, your lawyer can attempt to negotiate with the prosecution to get the charge withdrawn early.

 

Penalties

Type of Assault Maximum Penalty
 

Common assault: s61 Crimes Act

 

2-years jail and/or $5,500 fine

Common Assault Defences

YOUR COMMON ASSAULT CHARGE WILL BE DISMISSED IF:
  • If physical force is applied, it occurred as an inevitable conduct of everyday daily life, or it’s something generally accepted by society; or
  • The alleged victim wasn’t aware of the alleged assault; or
  • Self-defence: where due to fear, you responded for your protection, or for the protection of someone else, or property, if your response was a reasonable response in the circumstances perceived by you at the time.
  • Lawful Correction: where you disciplined your child or a child you were responsible for, provided your conduct was reasonable and warranted in the circumstances.
  • Citizen’s arrest: where you were using reasonable force to arrest the alleged victim.
  • Duress or Necessity.
  • The prosecution evidence is so weak that it’s incapable of proving any one of the essential elements of a common assault charge beyond a reasonable doubt.

Stalk or Intimidate Charges | Penalties | Defences

‘Intimidate’ is considered conduct that constitutes harassment, molestation, approaching someone via telephone, text message, email or other form of technology that causes fear of safety, or any behaviour that causes a reasonable apprehension of injury or violence to a person (or damage to a person’s property).

Words or actions can amount to ‘intimidation’.

The law recognises that some instances of threats may only be seen as bluster, not amounting to ‘intimidation’ (Kelly v R [2007]).

‘Stalking’ is conduct such as following a person or watching or frequenting the vicinity of (or approach to) a person’s home, work or business (or any place the alleged victim frequents for social or leisure activity).

In determining whether the current alleged conduct amounts to ‘intimidation’ or ‘stalking’ the Judge or Magistrate can take into account any past pattern of violence.

 

What the Police Must Prove in Court

You will be guilty of stalking or intimidating if the prosecution can prove each of the following elements beyond reasonable doubt in court:

  1. Your conduct is considered either ‘intimidating’ or ‘stalking’; and
  2. You either intended to cause fear of physical or mental harm or were aware that your conduct is likely to cause such fear in the other person.

If the prosecution is unable to prove each of the above, your charge will either get dismissed or withdrawn early through negotiations, saving costly legal fees and stresses of going to court.

There is no need for police to prove that the alleged victim actually feared physical or mental harm.

 

Penalties

Type of Assault Maximum Penalty
 

Stalk or Intimidate: s13 Crimes (Domestic and Personal Violence) Act

 

5-years jail or $5,500 fine, or both

Defences

YOUR INTIMIDATION OR STALKING CHARGE WILL BE DISMISSED IF:
  • Self Defence: You responded in a way to protect yourself, someone else or a property; or
  • The perpetrator is not you; or
  • You didn’t realise that your conduct is likely to cause fear to the other person at the time; or
  • Under the influence of drugs or alcohol: you were intoxicated from alcohol or drugs to a level that you weren’t able to form the necessary intent or awareness of causing fear in the other person (McIlwraith v R [2017] NSWCCA 13); or
  • Duress or Necessity; or
  • Citizen’s arrest by using reasonable force.

Assault Occasioning Actual Bodily Harm NSW | Penalties | Defences

It is a crime to intentionally or recklessly assault a person without consent where the assault causes ‘actual bodily harm’ to that person.

‘Assault’ is any act you do which causes unlawful force on the victim or causes the victim to apprehend immediate and unlawful violence.

To amount to ‘actual bodily harm’, the injury doesn’t have to be permanent, but it must be more than merely transient or trifling, and it includes bruises or scratches.

Actual bodily harm doesn’t include emotional harm, but it can if there’s evidence of psychiatric harm.

A person who recklessly assaults another person causing him/her actual bodily harm will generally receive a lighter sentence in court than someone who intentionally does this.

 

What the Police Must Prove in Court

You will be guilty of actual bodily harm assault if the prosecution can prove each of the following elements beyond reasonable doubt in court:

  1. You ‘assaulted’ the victim without consent (by either inflicting unlawful force or causing an apprehension of immediate and unlawful violence); and
  2. This caused the victim to sustain ‘actual bodily harm’; and
  3. You intentionally or recklessly did this:
    1. You recklessly did this: Where you realised the possibility of causing the victim to sustain unlawful force or an apprehension of immediate and unlawful violence; or
    2. You intended to cause the victim ‘actual bodily harm’.

If you believe the prosecution will be unable to prove 1 or more of the above elements, your defence lawyer can negotiate with police in an attempt to get the charge withdrawn early.

 

Penalties

Types of Actual Bodily Harm Maximum Penalty in Local Court Maximum Penalty in District Court
Actual bodily harm assaults59 Crimes Act 1900 2-years jail and/or $5,500 fine 5-years jail
Actual bodily harm assault in company Same as above 7-years jail

Defences

YOUR ACTUAL BODILY HARM ASSAULT CHARGE WILL BE DISMISSED IF:
  • The physical force applies is considered incidental in everyday life; or
  • The physical force applied was generally accepted by the community; or
  • Reasonable force was used while making a citizens’ arrest; or
  • The prosecution fail to prove any 1 of the essential elements of this offence in court (outlined above); or
  • Your conduct was out of a necessity or duress; or
  • The alleged victim consented.

Grievous Bodily Harm Assault or Wounding Charges | Penalties | Defences

‘Grievous bodily harm’ (GBH) is considered a really serious injury. It includes a permanent or serious disfiguring of a person (i.e. broken bone), and also includes the destruction of a foetus or any kind of grievous bodily disease (i.e. HIV).

‘Wounding’ is where the skin is broken (i.e. a split lip).

In NSW, it’s a crime to intentionally or recklessly inflict either of the following to a person:

  1. Grievous bodily harm (GBH); or
  2. Wounding.

A person will be guilty of recklessly causing GBH or wounding if he/she had realised the possibility of causing ‘actual bodily harm’ (bruise or scratch) at the time of the assault but committed the assault anyway.

A person will be guilty of intentionally causing GBH or wounding if he/she had intended to cause the GBH (i.e. broken bone) or wounding (broken skin) at the time of the assault, but committed the assault anyway.

A person who recklessly causes GBH or wounding on a person will generally receive a lighter sentence in court than a person who intentionally does it.

 

What the Police Must Prove in Court

You will be guilty of GBH or wounding if the prosecution can prove each of the following elements beyond reasonable doubt in court:

If charged with recklessly cause grievous bodily harm or wounding

  1. You did something to inflict either one of the following to a person:
    1. Grievous bodily harm: Really serious injury in the nature of a permanent or serious disfiguring i.e. broken bone; or
    2. Wounding: Penetrated the skin i.e. split lip; and
  2. You realised the possibility of causing actual bodily harm (i.e. bruise or scratch) at the time but went ahead and did it anyway.

If charged with intentionally cause grievous bodily harm or wounding

  1. You did something to inflict grievous bodily harm or wounding; and
  2. You intended to cause grievous bodily harm or wounding.

If you believe the prosecution will fail to prove any 1 of those elements, your defence lawyer can attempt to negotiate with police to get the charge withdrawn early.

 

Penalties

Types of GBH/Wounding Maximum Penalty Standard Non-Parole Period
Grievous bodily harm or wound (with intent) s33 Crimes Act 1900 25-years Jail 7-years
Grievous bodily harm (recklessly) s35(2) 10-years Jail 4-years
Grievous bodily harm in company (Recklessly) s35(1) 14-years Jail 5-years
Wounding (recklessly) s35(4) 7-years Jail 3-years
Wounding in company (recklessly) s35(3) 10-years Jail 4-years

Defences

YOUR GRIEVOUS BODILY HARM OR WOUND CHARGE WILL BE DISMISSED IF:
  • You acted in either self-defence or to defend someone else or your property.
  • The injury caused was from an intervening event or incident other than from your actions.
  • Mental illness defence.
  • Intoxication: If you were too drunk or drugged that you weren’t able to form the necessary criminal intention.
  • Duress or Necessity.
  • Citizen’s arrest (with reasonable force).
  • The injury does not legally amount to ‘grievous bodily harm’ or ‘wound’.
  • Prosecution can’t prove all of the essential elements of the offence.

Choke, Suffocate & Strangulation Charge | Penalties | Defences

It is a crime which carries heavy penalties to intentionally choke, suffocate or strangle another person without consent.

There are three types of this charge, each carrying different criminal penalties:

  1. Intentionally choke (suffocate or strangle) without consent.
  2. Recklessly causing another person to go unconscious, suffocate, strangulated, insensible or incapable of resisting.
  3. Suffocate, choke, strangle causing the other person to be incapable of resisting, become insensible or unconscious with the intention to commit an indictable offence.

 

What the Police Must Prove in Court

You will be guilty of a choke, suffocate or strangulation charge if the prosecution can prove each of the following elements beyond reasonable doubt in court:

  1. You intentionally choked, suffocated or strangled the alleged victim without consent; or
  2. You intentionally choked, suffocated or strangled the alleged victim; and
    1. This caused the alleged victim to be unconscious, insensible or incapable of resistance; and
    2. While doing this, you were aware of the possibility of causing the alleged victim to go unconscious, insensible or incapable of resisting.

If there isn’t enough evidence to prove the above elements, the court will find you ‘not guilty’, dismissing the charge.

If you can identify this earlier, then your lawyer may be able to negotiate with police in order to get the charge dropped earlier.

 

Penalties

Types of Choke/Suffocate/Strangle Assaults Maximum Penalty
Choke, suffocate or strangle with intent to do so without consent: s37(1A) Crimes Act 1900 5-years jail
Choke, suffocate or strangulate and recklessly cause person to go unconscious, insensible or incapable of resistance: s 37(1) 10-years jail
Intending to commit an indictable offence while choking, suffocating, or strangulating causing person to go unconscious, insensible or incapable of resistance: s37(2) 25-years jail

Defences

YOUR CHOKE, SUFFOCATE, OR STRANGULATE CHARGE WILL BE DISMISSED IF:
  • You did so in self-defence
  • Consent was given by the other person.
  • If reasonable force was used while conducting a citizen’s arrest.
  • It was done out of a Duress or Necessity.
  • Insufficient evidence to prove any 1 or more of the elements of this offence beyond reasonable doubt.

Using Carriage Service to Threaten, Harass, Offend or Menace Charges | Penalties | Defences

It’s a crime all across Australia to use a carriage service in a way (either from the contents or method of communication) that a reasonable person would consider offensive, harassing or menacing (s474.17 Commonwealth Criminal Code 1995).

A carriage service here includes texting, calling, social media post, email etc.

It’s also a crime to do this if the carriage service is used in a way to transmit, make available, publish, distribute, advertise or promote private sexual material (s474.17A).

It’s an even more serious crime to use a carriage service to threaten to kill or cause serious harm to a person if the threat was intended to cause the other person to fear that it will be carried out (s474.15(1) and (2)).

Finally, it is a crime to use a carriage service to send communication with an intention to induce a false belief that an explosive or dangerous (or harmful) substance has been (or will be) left in any place (s474.16).

If a person is found guilty of any such offence, he/she will face heavy penalties in court.

 

What the Police Must Prove in Court

You will be guilty of using a carriage service offence if the prosecution can prove each of the following elements beyond reasonable doubt:

  1. You used a carriage service; and
    1. You did this in a way that a reasonable person would consider offensive, harassing, or menacing (s474.17); or
    2. You did this in a way to transmit, publish, advertise, make available, or promote private sexual material (s474.17A); or
    3. You did this in a way to threaten to kill or cause serious harm to a person with the intention to cause that person to fear it will be carried out (s474.15(1) & (2)); or
    4. You did this in a way to send communication with the intent to induce a false belief that there is (or will be) an explosive or dangerous substance left in any place (s474.16).

If the prosecution are unable to prove any such essential element of this charge, a legal letter outlining this can be drafted and sent to the police in an attempt to get it withdrawn earlier.

 

Penalties

Criminal Code Section Type of Carriage Service Offence Maximum Penalty
s474.17 Use carriage service to offend, harass or menace. 3-years jail
s474.17A Use carriage service to offend, harass or menace involving private sexual material. 5-years jail
s474.16 Use carriage service for a hoax threat. 10-years jail
s474.15(1) Use carriage service to make a threat to kill. 10-years jail
s474.15(2) Use carriage service to make threat to cause serious harm. 7-years jail

Defences

YOUR USE OF CARRIAGE SERVICE OFFENCE CHARGE WILL BE DISMISSED IF:
  • You’re under the age of 10 at the time; or
  • You’re aged between 10 but under 14 at the time, and at the time you did not know that your offending conduct was wrong.
  • You did it out of a duress or necessity; or
  • You acted involuntarily from either mental illness, or intoxication (drugs or alcohol); or
  • You’re an internet provider, carrier, carriage service provider or internet content host; or
  • Mistaken identity.

Resist, Hinder or Assault Police Officer Charges | Penalties | Defences

It’s a crime to assault a police officer acting in the execution of his/her duty.

It’s equally a crime to hinder or resist a police officer who acts in the execution of duty.

Furthermore, it’s also a crime to incite someone else to assault, resist or hinder a police officer acting in the execution of duty.

The heavy penalties that attract these offences vary depending on the type of charge and injuries caused.

 

What the Police Must Prove in Court

You will be guilty of assaulting, resisting or hindering police if the prosecution can prove each of the following elements beyond reasonable doubt:

  1. You either assaulted, harassed, stalked, intimidated, resisted, hindered a police officer, or you threw a missile at a police officer (or incited anyone else to do any of these to a police officer); and
  2. The police officer suffered no actual bodily harm, or suffered actual bodily harm, or sustained a wound or grievous bodily harm (i.e. by recklessly caused actual bodily harm to the officer); and
  3. The police officer was acting in the execution of his/her duty at the time.

If the prosecution have insufficient evidence to prove each of these essential elements, the charge has potential to get dropped earlier. This can be done by negotiating before the hearing.

 

Penalties

Type of Police Assault Maximum Penalty Standard non-parole period
Assault, harass, stalk, intimidate or throw missile at police with no actual bodily harm caused: s60(1) 5-years jail Nil
Assault, harass, stalk, intimidate or throw missile at police with no actual bodily harm during public disorder: s60(1A) 7-years jail Nil
Assault police causing actual bodily harm: s60(2) 7-years jail 3-years
Assault police causing actual bodily harm during public disorder: s60(2A) 9-years jail 3-years
Wound or cause grievous bodily harm to police officer recklessly: s60(3) 12-years jail 5-years
Wound or cause grievous bodily harm to police officer recklessly during public disorder: s60(3A) 14-years jail 5-years
Resist or hinder police, or inciting someone else to assault, resist or hinder police: s546C 1-year jail and/or $1,100 Nil
Assault, resist, or wilfully obstruct police acting in execution of duty: s58 5-years jail Nil

Defences

YOUR POLICE ASSAULT CHARGE WILL BE DISMISSED IF:
  • The police officer was at the time acting illegally or outside his power as a police officer. i.e. illegal search or arrest; or
  • The injury caused was not contributed by your actions; or
  • In the case of assaulting police causing grievous bodily harm or wounding, you did not realise the possibility that your action may cause actual bodily harm at the time; or
  • Self-defence: where you acted to protect yourself, someone else, or your property; or
  • You acted out of a necessity or duress; or
  • Your actions were involuntary from either a mental illness or drugs and alcohol.

Affray Charges | Penalties | Defences

Affray is considered amongst the more serious type of assaults and is categorised as an offence against public order in order to protect the peace. This is in contrast to the other assault offences which are considered as offences against individual(s).

Affray is if person A uses or threatens to use unlawful violence towards another person, where person A’s conduct would cause any third person of reasonable firmness present at the scene to fear personal safety (i.e. upset or frighten) pursuant to section 93C Crimes Act 1900 (NSW).

 

What the Police Must Prove in Court

You will be guilty of affray if the prosecution can prove each of the following elements beyond reasonable doubt:

  1. You either use or threaten to use unlawful violence towards another person; and
  2. Your conduct would cause a third person of reasonable firmness present at the scene to fear personal safety.

This means that a person can be guilty of affray even if a 3rd person was not actually present at the scene to observe the alleged violence, and where hypothetically, if a third person of reasonable firmness were to be present at the scene, such person might reasonably be expected to have been terrified from the violence.

Affray can occur in private or public places whether or not a third person is even likely to have been present at the scene.

The case of R v Sharp [1957] 1 QB 552 at 559, Lord Goddard said, “if two lads indulge in a fight with fists, no one would dignify that as an affray, whereas if they used broken bottles or knuckle dusters and drew blood, a jury might well find that it was, as a passer-by might be upset and frightened by such conduct.

An affray charge can get dismissed or withdrawn earlier if the police have insufficient evidence to prove each of the essential elements of the charge. It is important to then negotiate with the prosecution early.

 

Penalties

Type of Assault Maximum Penalty

Affray: s93C Crimes Act 1900

10-years jail

Defences

YOUR AFFRAY CHARGE WILL BE DISMISSED IF:
  • You responded in self-defence, to defend someone else or to defend your property.
  • You acted involuntarily or you could not control your actions or did not know right from wrong due to a mental disorder at the time.
  • You were intoxicated to a level that you weren’t able to form the required intent required for affray.
  • You acted under a duress or necessity.
  • Your conduct was while attempting a citizen’s arrest using reasonable force.
  • You engaged in violence or threats, with a degree of violence not being to the extent that it might reasonably be expected to terrify a person of reasonably firm character to amount to affray.
  • Your conduct was only verbal threats.

Example Case on Affray

The case of Aouli v R [2012] NSWCCA 104 involved the offender who was a Comancheros motorcycle club member, who happened to be in the same flight as the president of the Hells Angels motorcycle club.

After the flight had landed at the Sydney airport terminal, a fight broke out between the two motorcycle club members in the terminal.

A Hells Angels member was stabbed and beaten to death with a metal post by an unknown person.

The offender here Mr. Aouli didn’t actual cause any injuries to anyone, however, he followed the instructions of his club president to arrange for more Comancheros members to the airport- which he did by making phone calls before the start of the flight, and after it landed.

The Court found that “significant fear was undoubtedly engendered in members of the public”.

Mr. Aouli, 28 years of age at the time, was charged and pleaded guilty to Affray and Manslaughter. He has previous criminal convictions of knowingly making a misleading statement, importing prohibited imports and assault occasioning actual bodily harm in company.

He was sentenced to 2 years and 5 months imprisonment for the affray charge, and for the manslaughter charge he was sentenced to a non-parole period of 3 years, with the balance of 2 years and 8 months on parole. The two sentences were to run partly at the same date.

Damage or Destroy Property Charges | Penalties | Defences

Damaging or destroying property belonging to another person, or damaging or destroying property that’s legally in the possession of another person is a crime in NSW. It becomes a criminal offence if a person does this either intentionally or recklessly.

The maximum criminal penalty for this offence varies, depending on the value of the property that was damaged.

 

What the Police Must Prove in Court

You will be guilty of damage/destroy property if the prosecution can prove each of the following elements beyond reasonable doubt under section 195(1) Crimes Act:

  1. You either ‘damaged or destroyed’ property that belonged to someone else, without consent; and
  2. You did this ‘intentionally’; or
  3. You did this ‘recklessly’ by realising that the kind of damage that has resulted, might have resulted at the time of your actions in causing it.

If the evidence is weak in being able to prove any of these elements of the charge, then through negotiations with the prosecution, the charge can get withdrawn earlier if these weaknesses in the police evidence is identified early enough.

 

Penalties

Types of Damage Property Offences Local Court Maximum Penalty District Court Maximum Penalty
Intentionally/recklessly damage/destroy property if value is more than $5,000: s195(1)(a) Crimes Act 2-years jail and/or $11,000 fine 5-years imprisonment
Intentionally/ recklessly damage/destroy property if value is $5,000 or less, but more than $2,000: s195(1)(a) Crimes Act 2-years jail and/or $5,500 fine 5-years imprisonment
Intentionally/ recklessly damage/destroy property if value is $2,000 or less: s195(1)(a) Crimes Act 2-years jail and/or $2,200 fine 5-years imprisonment
If destruction/damage is by fire or explosive where value of property is more than $5,000: s195(1)(b) Crimes Act 2-years jail and/or $11,000 fine 10-years imprisonment
If destruction/damage is by fire or explosive where value of property is $5,000 or less, but more than $2,000: s195(1)(b) Crimes Act 2-years jail and/or $5,500 fine 10-years imprisonment
If destruction/damage is by fire or explosive where value of property is $2,000 or less: s195(a)(b) Crimes Act 2-years jail and/or $2,200 fine 10-years imprisonment
If destruction/damage is done in company of another person where value of property is more than $5,000: s195(1A)(a) Crimes Act 2-years jail and/or $11,000 fine 6-years imprisonment
If destruction/damage is done in company of another person where value of property is $5,000 or less, but more than $2,000: s195(1A)(a) Crimes Act 2-years jail and/or $5,500 fine 6-years imprisonment
If destruction/damage is done in company of another person where value of property is $2,000 or less: s195(1A)(a) Crimes Act 2-years jail and/or $2,200 fine 6-years imprisonment
If destruction/damage is done in company of another person by fire or explosive where value of property is more than $5,000: s195(1A)(b) Crimes Act 2-years jail and/or $11,000 fine 11-years imprisonment
If destruction/damage is done in company of another person by fire or explosive where value of property is $5,000 or less, but more than $2,000: s195(1A)(b) Crimes Act 2-years jail and/or $5,500 fine 11-years imprisonment
If destruction/damage is done in company of another person by fire or explosive where value of property is $2,000 or less: s195(1A)(b) Crimes Act 2-years jail and/or $2,200 fine 11-years imprisonment
If destruction/damage is done during a public disorder where value of property is more than $5,000: s195(2)(a) Crimes Act 2-years jail and/or $11,000 fine 7-years imprisonment
If destruction or damage is done during a public disorder where value of property is $5,000 or less, but more than $2,000: s195(2)(a) Crimes Act 2-years jail and/or $5,500 fine 7-years imprisonment
If destruction or damage is done during a public disorder where value of property is $2,000 or less: s195(2)(a) Crimes Act 2-years jail and/or $2,200 fine 7-years imprisonment
If destruction/damage is done during a public disorder by fire or explosive where value of property is more than $5,000: s195(2)(b) Crimes Act 2-years jail and/or $11,000 fine 12-years imprisonment
If destruction/damage is done during a public disorder by fire or explosive where value of property is $5,000 or less, but more than $2,000: s195(2)(b) Crimes Act 2-years jail and/or $5,500 fine 12-years imprisonment
If destruction/damage is done during a public disorder by fire or explosive where value of property is $2,000 or less: s195(2)(b) Crimes Act 2-years jail and/or $2,200 fine 12-years imprisonment

Defences

YOUR DESTROY/DAMAGE PROPERTY CHARGE WILL BE DISMISSED IF:
  • You acted under a duress or necessity. i.e. you were forced to or you did it to avoid serious injury.
  • You did it in the process of trying to protect yourself, another person or your property. Your reaction is required to be a reasonable response to succeed in this defence.
  • The cause of damage to the property was from someone or something other than your actions.
  • The damage complained of does not fall within the legal definition of ‘damage or destruction’ according to law.
  • You did not foresee at the time that your conduct might result in the damage that resulted.

The Legal Definition of ‘Damage’

‘Damage’ under the law can mean either one of the following types of ‘damage to property’:

  1. Temporary functional derangement
  2. Physical harm or impairment to the value or usefulness
  3. Imperfect or inoperative
  4. Alteration to physical integrity of the property

 

Type of Damage: Temporary Functional Derangement

The case of Samuels v Stubbs (1972) 4 SASR 200 said that, damage caused to the police officer’s hat by the offender kicking it three times before jumping on top of it, was described as “temporary functional derangement” to the cap.

The police officer’s cap was in that case held to have been damaged due to it being “injured or harmed in such a way to cause temporary derangement of its function and of the purpose which it was normally to serve.”

 

Type of Damage: Physical Harm or Impairment to Value or Usefulness

The case of Morphitis v Salman (1990) Crim Law Reports 48 held that ‘damage’ under the law includes not just permanent or temporary physical harm, it also includes permanent or temporary impairment of value or usefulness.

As an example, the blanket and police cell will be considered ‘damaged’ if a person inside a police cell flushes the toilet after having thrown a police supplied blanket inside it. This is because, the blanket can no longer then be used until it dries, and the police cell will be out of action as a result of the flooding at least until the water clears.

On this basis, property can be labelled as temporary or permanent ‘damage’. The damage does not necessarily need to be permanent or irreparable.

 

Type of Damage: Imperfect or Inoperative

The case of Zischke (1982) Qd. R. 240 involved an offender who had painted political slogans onto the surface of buildings, footpaths and walls in public places. The offender here was guilty of ‘damaging’ property because, the paint on those properties rendered the property “imperfect or inoperative”.

This means, that damage can occur if the ‘injury’ to the property or object is not permanent yet able to be remedied or fixed, even if it’s done so by spending money to fix it.

In Zischke’s case, the objects that were painted on by the offender were considered to be ‘imperfect’ even though there wasn’t a requirement to spend money to remove the paintings. If money was required to be spent to remove the paintings, then that may be enough to establish the extent of the ‘imperfection’ caused to the property.

The case of Hardman & Ors v The Chief Constable of Avon and Somerset Constabulary (1986) Crim. L Rev. 330 said that ‘damage’ did result because of the ‘mischief to property’ which had caused expense and inconvenience to the local authority. In Hardman’s case, damage was caused to a pavement during a nuclear disarmament demonstration. An unstable whitewash was painted on the pavement which was expected to wash away with rain over time. The local authority had decided to clean the pavement using high pressure water jets.

The case of “A” (a juvenile) v The Queen [1978] Crim L Rev 689 held that property will be considered to have been ‘damaged’ if it can be considered as either “inoperative” or “imperfect”.

By way of an example, a property will be considered as ‘damaged’ due to being “imperfect” if its physical appearance changes as a result of the act, despite reasonable attempts at cleaning it so that it may be described as “imperfect”.

Property will also be considered as ‘damaged’ due to being “inoperative” if as a result of the act, the property is rendered “inoperative”, or unable to be sued for its ordinary functions for a period while its imperfections were being eliminated.

 

Type of Damage: Alteration to Physical Integrity of Property

The case of Grajewski v Director of Public Prosecutions (NSW) [2019] HCA 8 held that, in order for property to be considered as “damaged or destroyed”, there must be conduct that causes an alteration to the physical integrity of the property (whether relatively minor or temporary), which causes it to be permanently or temporarily inoperable.

This case was a High Court decision clarifying the position that interference with functionality of property alone, without physical harm or derangement does not amount to “damage” under section 195 of the Crimes Act.

This essentially means, that the High Court has rejected the approach that was previously taken in Hammond’s case mentioned earlier, which said that interference with functionality without physical harm or derangement may amount to damage.

In Grajewski’s case. The defendant Paul Olaf Grajewski was protesting in May 2016. He did this by attending the Carrington Coal Terminal.

He then approached a ship loader machine, and did so by climbing the stairs to get to the top of the ship, and used a harness and roping device to then lock himself to the ship loader. Due to safety concerns, the ship loader machine had to be shut down.

While the machine was shut down, the machine was inoperable for about two hours while he remained in that position.

Mr. Grajewski was then charged with damaging the machine pursuant to section 195(1)(a) of the Crimes Act 1900 (NSW). He first found guilty. He then appealed to the High Court, and the High Court said that his actions, although caused the machine to be inoperable for about two hours, his actions did not constitute “damage” to the machine because there was nothing done to the machine that actually caused about any alteration to its physical integrity.

The decision to shut down the machine was because of safety concerns, and because of such concerns, the machine remained shut until Mr. Grajewski was removed from it. As a result, his conviction and sentence for the charge of damage property was quashed by the High Court of Australia.

What if I want to Plead Guilty to Assault?

Before pleading guilty and proceeding to a sentence in court, it’s advisable to speak to a specialist criminal defence lawyers experienced in assault law.

If you decide to plead guilty, it’s important to know that you can increase your chances at getting the lightest possible penalty, by avoiding a conviction or avoiding jail, by doing the following:

  1. Negotiate the police facts and charges. You may be able to change the police facts to reflect more of the truth of what really happened. This may put you in a much better light when the Magistrate reads the police facts right before sentencing you. This will certainly increase your chances of getting a lighter punishment. Sometimes, you may even be able to negotiate to get other charges dropped upon pleading guilty to affray if you are also facing more charges. Being sentenced for one offence would likely result in a better outcome than multiple offences.
  2. Psychologist or counsellor’s report. If you have a drug or alcohol problem, or if you may be suffering a mental condition or illness such as depression, anxiety, schizophrenia etc, then getting a report expressing this with a treatment plan can significantly improve your court outcome. The court will be interesting to know whether you’re getting treatment for it.
  3. Pleading guilty to a charge at the first court date will land you a 25% discount off the punishment the Magistrate ends up giving by law. The later you plead guilty, the more that discount drops. This can produce a more lenient court outcome.
  4. Good character reference for assault cases for court: Getting properly structured powerful letters from family and friends expressing your character, any remorse, insight and shame of committing the offence can also help reduce the penalty in court.

FAQ

How much is a simple assault charge?

A simple assault charge can include common assault or stalk/intimidate. The penalties for these range from a maximum of 2-years imprisonment and/or $5,500 fine for common assault, and up to 5-years imprisonment and/or $5,500 fine for stalk or intimidation.

What are the types of assault?

Types of assaults include aggravated assaults, common assaults, stalk/intimidate, actual bodily harm, grievous bodily harm, wounding, choke/suffocate, sexual assault, murder, manslaughter, destroy/damage property, distributing intimate images, using a carriage service to harass and threaten or offend.

What happens when I press charges for assault?

Once the alleged victim complains to police that he/she has been assaulted by an accused person, the police will decide to press charges against the accused person after conducting their investigations. Once the police press charges, they will issue the accused person with a ‘Court Attendance Notice’ (CAN) which outlines the court, court date, and specific assault charge under the law.

The accused person who is served with the CAN will then be required to attend court to plead guilty or not guilty to the allegation (charge(s)).

Before the police charge the accused, the police will usually ask the alleged victim to provide a video interview, which they try to conduct upon attendance at the scene using their body worn camera. This video statement then becomes part of the police evidence against the accused person.

The accused will also be asked to provide a recorded interview, which if he/she agrees to will be used to form part of the evidence by police against the accused person when the matter comes to court. Before replying to police, the accused person should be given an opportunity to speak to a criminal lawyer for advice.

Should I press charges for assault?

Pressing charges for assault is ultimately up to police. Only after a complaint is made to police, do the police then investigate further. After the investigation process, they will then decide whether or not to press charges against an accused person.

Charges will usually be pressed if there is sufficient evidence to substantiate the alleged assault. This evidence is usually either already in existence and/or forms at the time of investigation. It can be already in existence if there is CCTV footage. It can come into existence if any witness or complainant gives a statement to police at the time of police investigation. It can also come into existence if the accused person provides police with an interview.

What constitutes serious assault?

A serious assault is a persona violence offence, which encompasses both physical and non-physical forms of assault, including intimidation, stalking, to assaults that cause death, grievous bodily harm, wounding or death.

To constitute serious assault, the elements of the specific assault charge must be present by proof in a court of law. For example, an intentional grievous bodily harm assault charge requires proof of an act by the accused causing the infliction of grievous bodily harm, and an intention by the accused to cause this.

What are the levels of assault charges?

The levels of assault charges from least serious to most serious are generally, common assault, stalk/intimidate, assault occasioning actual bodily harm, grievous bodily harm, wounding, using carriage service to offend or harass, choke or strangulate, damage property, sexual assault, manslaughter to murder.

For each type of assault, there are varying degrees of seriousness or levels as well. The extent of the seriousness depend upon the objective criminality of the offending conduct. This includes the extent of injuries, premeditation, planning and motive for the assault.

What is the lowest form of assault?

One of the lowest forms of assault are common assault carrying a maximum penalty of two years jail as compared to stalk/intimidate which carries a maximum of 5-years jail. The maximum set penalties are not usually applied by courts when sentencing an offender. They are a reference point to guide the courts as to how serious the offence is generally considered by Parliament and general community expectations.

What is worse, common assault or ABH?

Common assault is amongst the lowest forms of assault with a maximum sentence of two years imprisonment, while actual bodily harm assault (ABH) has a maximum penalty of 5-years imprisonment. ABH is generally a more serious type of assault than common assault.

ABH requires the application of physical force causing the actual bodily type of harm. Whereas, common assault can occur without the application of physical force. For this reason, common assault is also often seen as less serious than ABH.

How long will you be in jail for aggravated assault with a deadly weapon?

As an aggravated assault is the presence of one or more aggravating features of the assault, the period of jail time for an aggravated assault with a deadly weapon can range from a maximum of 2-years to 25-years in jail. The maximum is usually not imposed, and the actual jail time depends on the objective and subjective features of the aggravated assault with a deadly weapon.

The objective features, include the use of a deadly weapon, injury caused, level of planning and premeditation, extent of violence used etc. The subjective features include the presence and extent of remorse, insight, contrition and prospects of rehabilitation, as well as the offenders mental health. These factors can increase or decrease the sentence.

Is aggravated assault a felony or a misdemeanour?

An aggravated assault is a more serious type of assault offence because it involves a greater level of criminality/seriousness due to its nature than a simple assault, and is therefore a felony and a serious crime according to law. For example, an aggravated assault such as an assault that occurs in the victim home is more serious attracting a heavier sentence than an assault arising in a pub.

Can an aggravated assault charge be dismissed?

An aggravated assault charge can be dismissed in any one of the following ways:

  1. Negotiating with the prosecution to drop the charge early
  2. Successfully defending the charge in a defended hearing after pleading ‘not guilty’
  3. Pleading guilty to the charge, and convincing the sentencing Judge or Magistrate to dismiss the charge without recording a conviction.

How do you fight an assault charge?

A domestic violence charge can be successfully fought if any one of the following defences to assault apply to an assault case:

  1. Self-defence.
  2. Duress or necessity.
  3. The accused person’s actions were involuntary due to a medical condition.
  4. The accused person did not understand the right or wrong of his/her conduct due to a mental disorder.
  5. Mistaken identity.
  6. The prosecution fail to prove any of the essential elements of the assault charge beyond reasonable doubt in court.

How do you know if someone pressed charges?

You will know if charges are either going to be or have been pressed against you because:

  • The police will physically arrest you where you are found before issuing you with a ‘court attendance notice’ form outlining the specific charge, court, and court date; or
  • The police will ask you to come to the police station to arrest you and hand you the CAN; or
  • The police will mail you with a CAN.

How do you get all charges dropped?

To get assault charges dropped or withdrawn, there must be enough ‘holes’ in the police brief of evidence either at the beginning, during or towards the end of the proceedings.

The first step in maximising the chances of getting charges dropped is for an experienced specialist criminal lawyer to carefully read the police evidence to pick out all their weaknesses, know their strengths, and then conduct a detailed consultation with the accused person as to what occurred in order to figure out how best to strengthen the defence case.

Once that is done, the lawyer can draft a detailed letter to police outlining the reasons why the assault charge(s) should be dropped, on a “without prejudice save as to costs” basis. This is called a letter of legal representations, and it is the legal document required for the police to begin the process of negotiations and consider withdrawal of charges. This process can and sometimes also includes telephone and in-person face-to-face conversations with the prosecution and defence team to convince them to drop charges.

Depending on the case, an experience lawyer will consider revealing the defence strengths to the prosecution, but does not have to and sometime will not for strategic reasons. This part of negotiations must be carefully thought through beforehand.

Can felony assault charges be dropped?

Felony assault charges can be dropped at any stage of the criminal court proceedings. It is better to try to get these dropped earlier than later to save legal costs and stresses of going to court. Felony charges can be dropped by strategically negotiating with the prosecution side, usually done by pointing out the weaknesses of the prosecution case. If a felony assault charge isn’t dropped earlier, it can also be dropped by the prosecution on the morning of the hearing or trial in court before it begins.

Misuse of Affray by Police?

In 2010, 2,835 charges of affray were finalised in the Court in NSW, 815 in Children’s Court, and 93 in the Higher Courts.

Affray is an often misunderstood and misused charge which can lead to devastating consequences for the accused person.

Whilst an affray offence carries a maximum penalty of up to 10 years imprisonment, in comparison, an assault occasioning actual bodily harm charge carries a maximum penalty of up to 5 years.

A common assault charge carries a penalty of up to 2 years imprisonment.

These assault charges are considered offences against an individual and normally require the police to go through the hurdles of having a witness available to come to court to give evidence so that the police can prove the elements of the offence.

These types of assault charges normally require police to prove who the actual victim was, the absence of consent, any injuries the victim sustained, and the alleged conduct constituting the assault.

Without the alleged victim and/or witnesses to prove those things, the police will generally be unable to prove those assault charges against you.

For affray charges, the police don’t need to go through the hurdles of producing a victim who was subject to the alleged violence, nor do the police need to produce that third person to attend court as a witness to give evidence of being frightened from viewing your alleged behaviour.

All that the prosecution needs to prove for an affray is evidence of your violent conduct towards another person- usually done by showing video evidence without the need to identify an alleged victim.

Unfortunately, Affray appears to be increasingly used as a charge by the prosecution against individuals for minor assaults against other individuals where the prosecution doesn’t have enough evidence to prove an assault.

For those reasons a charge of affray is easier to prove and more attractive to prosecute than other perhaps more appropriate assault charges that carry far less maximum penalties than affray.

Affray is intended to be used by the prosecution for serious breaches of the peace to protect people nearby from the fear of violence.

This raises concerns of why individuals should be charged with a far more serious offence of affray, be faced with the prospects of a criminal conviction and much heavier sentence in circumstances the more appropriate approach by police should have been a lesser serious assault charge with the prospects of a much lighter sentence.

Arguably, the police convenience in prosecuting shouldn’t dictate which charge police decide to proceed with against an individual.

What is Intentional and Reckless Common Assault?

Where no physical force is applied

Reckless common assault (without the use of physical force) is when a person does something with the realisation that his/her actions might cause the other person to fear immediate and unlawful violence, but takes that risk anyway.

Intentional common assault (without the use of physical force) is when a person does this with the intention of causing fear of immediate and unlawful force.

Where physical force is applied

Reckless common assault (with the application of physical force) is when a person does something with the realisation that the other person might end up being subject to unlawful force, but takes that risk anyway.

Intentional common assault (with the application of physical force) is when a person does this with the intention of causing the unlawful force.

What is recklessly causing actual bodily harm?

“Recklessly” assaulting a person causing actual bodily harm occurs if:

You do something to a person with the realisation that it will possibly cause unlawful force, or a fear of immediate and unlawful violence to that person.

What is Intentionally causing actual bodily harm?

To “intentionally” assault a person causing actual bodily harm, means to intentionally apply physical force (or intentionally cause fear of immediate and unlawful violence) on that person.

What is considered ‘Offensive’?

Monis v The Queen [2013] HCA 4 says that conduct will be ‘offensive’ if it is ‘calculated or likely to arouse significant anger, resentment, outrage, disgust or hatred in the mind of a reasonable person in all the circumstances’.

A ‘reasonable person’ is someone the law considers as ‘reasonably tolerant and understanding, and reasonably contemporary in his/her actions

Just because it merely hurts or wounds the feelings of the alleged victim does not necessarily mean the conduct is ‘offensive’.

What is ‘assault’?

Assault is the application of unlawful force on another person or where you cause another person to fear immediate and unlawful violence without applying force.

What is ‘recklessly’ cause GBH or wounding?

To wound or cause grievous bodily harm recklessly, means you were aware of the possibility of causing the officer ‘actual bodily harm’ at the time of your actions but you committed the act regardless.

What is ‘actual bodily harm’?

‘Actual bodily harm’ is a type of injury considered to be more than merely transient or trifling, but not necessarily permanent injury. i.e. bruise or scratch.

What is ‘wounding’ or ‘grievous bodily harm’?

‘Grievous bodily harm’ (GBH) is another type of injury which is really serious. i.e. a broken bone or grievous bodily disease such as HIV.

‘Wounding’ is also a type of injury, which is a permanent or serious disfigurement. i.e. cut to the interior layer of skin.

What is the ‘standard non-parole period’?

The standard non-parole period is the minimum period of prison time required to be spent by an offender before he/she can be eligible for release on parole if the offence is categorised by the court as fitting in the mid-range of objective seriousness for this type of offence.

The standard non-parole period is only applied by courts as a guide. It’s not applies strictly to all offenders.

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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