Here is a run-down on what is common assault? In Australia, there are various types of assaults, from the lower end threats to murders and homicides, and everything in between. This articles outlines the law, penalties, and defences concerning common assault.

What is Common Assault?

The common assault definition is an assault to any person causing injuries that do not amount to actual bodily harm. This attracts criminal prosecution carrying heavy penalties prescribed by the common assault crimes act in section 61 of the Crimes Act 1900 (NSW). Common assault is amongst the lower end of seriousness of the range of assaults under the law.

An assault is a voluntary and intentional act, and not merely an accidental act, which cannot be committed by an omission to act, that an accused person intentionally or recklessly causes the victim to apprehend immediate and unlawful violence or sustain unlawful force, without consent and without a lawful excuse.

The victim must have that fear on reasonable grounds, and there is no requirement that the accused person had an intention to cause actual violence.

The case of Pemble v R (1971) 124 CLR 107 emphasises that there can be no assault if the intended victim is not aware of the accused’s offending action(s).

The case of Zanker v Vartzokas (1988) 34 A Crim R 11 empathises that the victim must at least fear relatively immediate imminent violence which may continue to have effect while being unlawfully imprisoned.

An assault is recklessly committed if the offender at the time of committing the act realised the possibility of causing that fear or unlawful force to the victim but went ahead regardless. The offence of reckless assault is generally considered less serious than an intentional assault.

An assault with no consent is no assault. The prosecution carries the burden to prove an unlawful violence, which is non-consensual violence. If the prosecution fails to prove beyond reasonable doubt that the alleged victim did not consent to the assault, then the prosecution will fail to prove the assault offence, and the assault charge will be dismissed.

Equally, if the prosecution fails to prove beyond reasonable doubt that the assault occurred without a lawful excuse, then the assault charge will be dismissed. Defences and lawful excuses to an assault are discussed further below.

Penalties for Common Assault NSW

Common assault carries a penalty of up to two years imprisonment, as prescribed by section 61 of the Crimes Act 1900 (NSW). The maximum penalties prescribed by the legislature are not normally imposed by the courts, as these are reserved for the most serious offenders. A first time offender of assault will generally not receive the maximum penalty.

A person guilty of common assault can go to jail, but this does not generally occur unless it is an aggravated form of common assault committing by a person with a lengthy criminal history with a high risk of re offending.

Will I Get a Conviction?

 While a conviction is a finding of guilt by a court, which generally gets recorded on a criminal history record under your name, impacting upon the prospects of a current or future employment and travel prospects, a court has the discretion to decide not to record a conviction against your name for an offence or offences that you have been found guilty for.

In New South Wales, a Magistrate sitting in court can impose a section 10 non-conviction sentence after a finding of guilt. This will therefore result in no criminal conviction recorded against your name for the offence.

While a section 10, which comes in the form of a section 10 dismissal or conditional release order non conviction with a good behaviour bond period, amounts to no criminal record or conviction, it will appear on a criminal history check showing the offence that you received a non-conviction for to reflect the trivial nature of it, which still allows you to remain conviction free.

A charge or offence will not result in a conviction and will also not appear on a criminal history check if the charge gets dismissed after a verdict of not guilty or a section 14 dismissal on mental health grounds (whether or not you plead guilty).

It is strongly recommended to get experienced legal advice if you are looking to get any of these outcomes. Our criminal defence lawyers Sydney team deal with these types of cases in court and offer a free first consultation.

Defences to Common Assault

An assault charge will fail, resulting in dismissal if the prosecution fails to prove beyond reasonable doubt that there is no lawful excuse to the assault offence. Put another way, in order for the prosecution to successfully prove the assault offence, they must negate any reasonable possibility of a lawful excuse to the assault.

One common lawful excuse to an assault is self-defence. The assault charge will be dismissed if there is a reasonable possibility that the accused did what he or she did for purposes of protection, and that response is considered by the court as reasonable in the circumstances that the accused person perceived it at the time.

Another lawful excuse to an assault is if the act was an incident of ordinary social intercourse such as patting another on the shoulder to attract attention or pushing between others to alight from a crowded bus.

Exigencies of everyday life being contact that invokes implied consent or constitutes physical contact which is tolerated as part of the conduct of daily life is also a lawful excuse to an assault.

Another defence to common assault is lawful correction of children or a lawful citizen’s arrest.

Consequences of a Common Assault Conviction

The consequences of a common assault conviction can be far reaching. It can affect your ability to maintain or obtain employment prospects. Others may be affected in the form of travel limitations and obtaining permanent residency or citizenship in Australia due to the impact it can have on the character test.

A common assault conviction will be considered spent after passing the 10 years crime free period. Click here for more on spent convictions and background checks.

Understanding the consequences is important as it helps in the way you prepare your case in court and plan for future, especially if you have dependants who rely on you.

Factors Influencing Assault Sentencing

Factors that influence an assault sentence in court include the following summarised factors:

  • The quality and experience of your lawyer. You can find out how many years your lawyer has been practising as a lawyer for by visiting the law society website. Preparation is key to getting the best possible outcome in the situation. This may include negotiating with the prosecution, preparing evidence in support of leniency and getting a good lawyer who cares about your case that also provides you with regular enough updates about it.
  • Whether a plea of guilty was entered early enough to attract the full 25% discount on penalty that the law offers and the timing of the plea of guilty. The sooner you get legal advice the sooner you can receive this discount.
  • Good character letters. These letters should come from carefully selected people who will write and express certain important points with each letter giving a different type of value in your favour without duplication. A good lawyer can guide you on this, review each letter, and give feedback before finalising it.
  • Expert psychologist or psychiatrist report. If there may be underlying mental health issues concerning the offender, then an expert report from an experienced psychologist or psychiatrist should be obtained to explore that further which may provide a compelling explanation for the offending behaviour. The report can also significantly assist in expressing remorse, contrition, insight and assessment of the prospects of rehabilitation with a strong treatment plan. This can significantly reduce the sentence.
  • Co-operation with the prosecution. Providing assistance to police in their investigation can also improve the sentence outcome. This assistance can come in many different types of forms.

Assault and Violence Offences

Assault and violence offences include intimidate, common assault, assault occasioning actual bodily harm, assault occasioning grievous bodily harm, wounding, choke, suffocate and strangulation offences, use of carriage service to threaten, harass, offend or menace, assault police, affray, manslaughter, murder and homicide.

Each type of assault offence carries with it a maximum penalty that reflects the seriousness of the offence. This ranges from 2 years to life imprisonment.

The prosecution is required for each type of assault offence to prove the elements of the offence beyond reasonable doubt before an accused person is found guilty for it. If the prosecution fails to prove this, or if the prosecution fails to negate a lawful excuse to the assault offence, then the charge will be dismissed in court.

 Is Spitting Common Assault?

Spitting at a person without consent is considered an application of unlawful force and amounts to a common assault if it was don’t voluntarily and intentionally and without a lawful excuse. The penalty for spitting at a person is up to two years imprisonment in New South Wales.

Is Common Assault a Minor or Serious Offence?

Common assault is usually dealt with summarily which means that it is dealt with from beginning to end in the local court proceedings. However, it is an indictable offence which means that it can be elected to be dealt with in the District Court instead.

Common assault WA

Common assault in Western Australia (WA) is a crime that is prescribed a maximum penalty of up to 18 months’ imprisonment and/or $18,000 fine.

Common Assault Victoria

Common assault committed in Victoria carries a maximum penalty of up to three months imprisonment and/or 15 penalty units.

Common Assault Qld

Committing a common assault offence in Queensland carries a maximum penalty of up to three years imprisonment.

Common Assault Canberra

A person who assaults a person without consent is guilty of an offence punishable with a penalty of up to two years imprisonment. An aggravated common assault offence in the Australian Capital Territory carries a maximum penalty of up to three years imprisonment.

Common Assault Tasmania

Common assault in Tasmania carries a maximum penalty of up to 12 months’ imprisonment and/or 20 penalty units, according to the Police Offences Act. an aggravated common assault offence in Tasmania carries up to two years imprisonment and/or 50 penalty units.

Need Legal Advice for Common Assault Charges?

CDLA are a team of lawyers exclusively working in criminal law. They also offer a free first confidential consultation for advice and guidance if you have been charged by the police and are looking for legal representation in court. Call their office on 8606 2218 to book a lawyer now.

Published on 24/06/2024

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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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