A run down summary of the law on assault occasioning actual bodily harm in New South Wales…  

What is Assault Occasioning Actual Bodily Harm?

An assault occasioning actual bodily harm is any assault that thereby occasions actual bodily harm on a victim. An actual bodily harm is any injury calculated to interfere with the health or comfort of a person. The injury or hurt does not need to be permanent but must be more than merely transient or trifling. The actual bodily harm can also include psychiatric injury, but not mere emotions such as fear or panic, or states of mind that were not themselves evidence of some identifiable clinical condition. 

The offence of actual bodily harm occasioned by assault is found in section 59 of the Crimes Act 1900 (NSW), which prescribes up to five years imprisonment. 

To be found guilty of a charge of section 59 of assault occasioning actual bodily harm in New South Wales, the prosecution must prove, beyond reasonable doubt, the following elements: 

  1. The accused assaulted a person, by committing an intentional and voluntary act, not merely accidental. Keep in mind here that an assault cannot be committed by an omission to act, and 
  2. The accused caused the victim to apprehend immediate and unlawful violence (fear) or sustain unlawful force. The complainant must at least fear relatively immediate imminent violence which may continue to have effect while being unlawfully imprisoned. The victim must have feared on reasonable grounds. there cannot be an assault if the victim is unaware of the accused’s act, and 
  3. The accused intentionally or recklessly caused this. Recklessly causing this occurs if you realised the possibility of causing it but continuing with your actions regardless, and 
  4. The accused did this without consent of the victim, and 
  5. This was done without a lawful excuse such as self-defence, lawful correction, exigencies of everyday life or an incident of ordinary social intercourse.

Will I Go to Jail for Assault Causing Bodily Harm? 

Not all offenders who commit an assault causing actual bodily harm will go to jail in Australia. The Judge or Magistrate presiding over the case has lots of discretion when sentencing an offender in court. Factors that will affect the ultimate decision as to whether or not you will be sentenced to full time imprisonment are outlined in the Crimes (Sentencing Procedure) Act 1999 (NSW), which include the following: 

  • If it is a domestic violence offence, then it triggers section 4A which requires full time imprisonment or supervision, which increases the chances of jail, 
  • Whether this is your first or subsequent offence, 
  • The objective seriousness of the assault, which includes the extent of the act(s) of assault, any planning, premeditation, motivation, provocation, extent of injury causes and how long lasting it is, and recovery time of the victim, 
  • Your good character, criminal record or history of violence, 
  • If you were on a good behaviour bond or on bail at the time, 
  • Your mental health at the time of the offending,  
  • Your prospects of rehabilitation and chances of re-offending,  
  • Whether an early plea of guilty was entered or you were found guilty after defending the charge(s), 
  • Any assistance provided to police in their investigation, 
  • Any remorse and insight you have demonstrated since committing the offence,  
  • Effect of you going to jail on any dependants you have who rely on you. 

Minimum Sentence for Assault Causing Bodily Harm

There is no minimum sentence for assault causing bodily harm other than a sentence of a section 10 non conviction penalty. The Local Court can sentence an offender to no more than 2 years imprisonment and/or $5,500 fine for any one offence, or up to 5 years for multiple offences. In contrast, the District Court is not restricted to this. All Courts are restricted by the maximum penalty that is prescribed by the legislation.  

The maximum sentence for an assault causing bodily harm is 5 years imprisonment. The maximum sentence for the same offence committed in the company of another person or persons is 7 years imprisonment. 

First Offence Assault Causing Bodily Harm

First time offender who commit an assault causing bodily harm will not necessarily receive a jail sentence by a court. A first offence will be considered generally less serious than if it is a second or subsequent offence of violence. However, this dynamics will change depending on the objective seriousness of the assault, whether or not it is a domestic violence assault offence, and if you were on bail or a good behaviour bond at the time. 

Every assault case will have its plus points and negative points to argue in court that will either reduce or increase the sentence imposed by the court. 

Often, a good criminal lawyer will guide you along the right path in the preparation of your case by asking lots of questions. While assault cases can be similar, they will always have differences that can make a big difference in the outcome in court. 

Amongst the most important factors the court will want to know for a first time assault causing bodily harm offender is their prospects of rehabilitation and chances of re-offending if placed back into the community. To address this directly, it is important to explore your mental health through getting a psychologist report prepared which may provide insight and explanation, not a justification, for your actions. This report may also provide a thorough treatment plan prepared on time for your sentence to show to the Judge or Magistrate. 

Actual Bodily Harm Examples

Actual bodily harm injuries can include a bruise or scratch on the surface of your skin noting that the definition of actual bodily harm is any harm or injury calculated to interfere with a person’s health or comfort, being more than merely transient or trifling, which need not be permanent.  

It is possible for an uncomplicated fracture of any limb, nose, jaw or cheekbone would on its own amount to actual bodily harm without it turning into a more serious assault of grievous bodily harm. 

Redness on the skin, without a scratch or bruise, will not amount to actual bodily harm. 

Where the hurt or injury amounts to a really serious injury even if not permanent, or any permanent or serious disfiguring of the person, or even any grievous bodily disease the offence turns into grievous bodily harm, constituting a more serious assault than actual bodily harm under the law. Grievous bodily harm examples include significant fracture(s). 

Unlawfully Assault and Thereby did Bodily Harm with Circumstances of Aggravation

An assault in the form of intentionally and voluntarily committing an act, either intentionally or recklessly causing an apprehension of immediate and unlawful violence or sustain unlawful force, without consent and without a lawful excuse in circumstances of aggravation, will warrant heavier sentence penalties, and greater chance of jail. Circumstances of aggravation include: 

  • If the victim is a police officer, emergency service worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official exercising public or community functions and the offence arose because of the victim’s occupation or voluntary work, 
  • The offence involved the use of a weapon, 
  • The offence occurred in the home of the victim, 
  • The offender has a record of previous conviction, especially if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences, 
  • The offence was committed in the presence of a child under the age of 18 years of age, 
  • The offence involved gratuitous cruelty,  
  • The injury, emotional harm, loss or damage caused by the offence was substantial,  
  • The offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged, 
  • The offence involved a grave risk of death to another person(s), 
  • The offender abused a position of trust or authority in relation to the victim, 
  • The offence was part of a planned or organised criminal activity.

Grievous Bodily Harm with Intent

Grievous bodily harm with intent prescribes a maximum penalty of 25 years imprisonment under section 33(1) Crimes Act 1900 (NSW). This offence occurs a person causes grievous bodily harm to any person and does so with the intent to cause grievous bodily harm to that or any other person. 

Grievous bodily harm is considered a really serious injury and includes permanent or serious disfiguring of a person. This may include a broken bone or HIV disease. 

You will be guilty of grievous bodily harm with intent if you intended to cause grievous bodily harm to a person at the same time of committing the assault that caused the grievous bodily harm. 

The offence of grievous bodily harm with intent also carries a standard non-parole period of 7 years. The non-parole period is the minimum period of jail time required to be served by an offender before being eligible for release on parole. The standard non parole period applies if the offence falls within the mid-range of objective seriousness for this type of offence and is used only as a yardstick or guidepost. The court is not obligated by law to impose the 7 years standard non-parole period. 

Published on 14/06/2024

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AUTHOR 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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