What is the Law and Penalties for Assaulting Police in NSW?

By Sahar Adatia and Jimmy Singh.

When it comes to the criminal justice system, police are regarded as the gatekeepers and the most visible representation of the state’s power to both protect citizens and control them.

They are generally fair and reasonable when performing their duties, and yet in some circumstances, members of the public have been seen to react with excessive force and offensive language in order to defend themselves.

Sometimes, this reaction results in being confronted by police acting in an overbearing and aggressive manner. Here, the situation often escalates, spiralling in hostile behaviour between both parties, and the individual is eventually arrested.

One such case that has found its way repeatedly making headlines is that of Instagram star and indigenous activist, Leilani Clarke, who on 2 November 2018 faced court for her fourth assault on police charge this year.

It is reported that Clarke, who describes herself as a proud Aboriginal advocate, allegedly spat on a police officer as they appeared at a domestic disturbance in Sydney’s inner-west back in June. At the time, she was allegedly high on illicit substances and damaged furniture in a suburban house.

In fact, the incident occurred merely two days after she reportedly kneed another police officer in the testicles and marked the third time she has spat on an officer.

One case of these cases involved her reportedly screaming out to police, “F**k you white dogs” and shoving a paramedic out of the way. In another incident, Clarke also allegedly kicked a female police officer from Queensland and labelled her a “sl*t”.

Overall, her alleged offences have now totalled to six police assaults in two states.

Clarke Convicted of Assault in Incident Where She Stole a $7 Chicken Curry from a 7-Eleven

Perhaps Clarke’s most excessive case of applying undue force situates itself back on June 26 when the glamorous activist kneed an officer in the testicles after allegedly stealing a curry meal from a 7-Eleven store.

In September, the glamorous campaigner pleaded guilty to assault of an officer in the execution of duty and resist arrest in the execution of duty.

According to news.com.au, on 26 June, Clarke and two males appeared at Marrickville’s 7-Eleven store in Sydney’s inner west.

Shortly after midnight, upon entering the shop, Clarke and one of the men placed a Butter Chicken Curry meal in her handbag, while the man put a Big Bite hotdog down his jeans. The curry was worth 7 dollars.

Court documents reveal that the shopkeeper, Kentankumar Khush Chaudhar, requested Clarke expose her handbag, in which he saw the chicken curry meal. He then retrieved it.

The two men then assaulted the shopkeeper before leaving with Clarke. The merchant then activated his security alarm.

At 12:10am, police arrived on the scene, and while viewing CCTV footage of Clarke and the two men, the three happened to walk past the 7-Eleven once more.

Police then arrested the two males for the alleged assaults, while Clarke was cautioned over stealing the Butter Chicken Curry, describing her behaviour as “highly erratic and unpredictable”. They believed this was a result of her being distinctly affected by alcohol.

In the process of removing the activist’s jewellery along with anything which may have caused her to harm herself, they handcuffed her. During that time, she allegedly attempted to lunge forward at police.

It was at this point that Clarke “coughed and spit up some phlegm in the mouth before spitting forward in the direction of police”.

It is reported in the court papers that police then asked the accused why she was upset, to which the former university student said, “I know how you white dogs go. You would never get that because you’re little white dogs, aye”.

Subsequently, police attempted to remove a scarf that Clarke was wearing around her neck. As a result, a struggle ensued. It is reported then that at this point Clarke “lifted her right knee suddenly into the victim’s groin causing intense pain in his testicles”.

Clarke was then taken to Newtown police station where she was entered into a time out for intoxication. As a consequence of her unceasing aggressive behaviour, in conjunction of being very intoxicated, she was not offered an interview.

Clarke Claims to Suffer from Self-Diagnosed “Transgenerational Trauma”

Proud of her Aboriginal activist background, Clarke also claims on her Instagram that she suffers from self-diagnosed “transgenerational trauma” inherited through her indigenous DNA.

Speaking of the trauma on Instagram, she has written that she is “battling with this thing I’m going to start calling trauma brain” that she believes no doctor or psychologist “knows how to work with”.

Of such childhood trauma, she also writes that “every f**king day in this country, especially to Aboriginal people … affects the literal DNA of an individual”.

As such, she claims she often listens to a TED talk by Dr Nadine Burke, an American paediatrician who discusses childhood trauma. Referring to the lecture, she has written that it has helped her “more than sitting parallel in a box to some random old white person sitting on a six-figure income to prescribe you antidepressants”.

Clarke has also claimed to suffer from post-traumatic stress disorder and has previously lapsed into mental health episodes.

Clarke Pleads Guilty to Spitting on Police Officers Three Times in Less Than 12-Months

On 2 November this year, appearing at Downing Centre Local Court, Clarke pleaded guilty to spitting on police officers three times in less than 12 months. Her history of calling them “white dogs” was also brought to light.

According to Magistrate Erin Kennedy, while assaulting police is considered an “extremely serious offence”, she accepted Clarke has a history of mental health issues and had possibly been self-medicating with illegal drugs.

Speaking of the Aboriginal activist, Magistrate Kennedy described her as a “wonderful” young person with a bright future.

“The worst thing we see happening to wonderful people like you who have a great future ahead of them is if you don’t get the proper treatment and you start taking something to self-medicate and we lost you,” Magistrate Kennedy said.

The 20-year-old walked away without a conviction recorded. Instead, the Magistrate put Clarke on a 10-month good behaviour bond.

Clarke was studying environmental science at Sunshine Coast University, however, she now lives in Sydney.

She has spent a considerable amount of time over the year in and out of courts after repeated episodes of assaulting police.

Arguably, it is critical for police to be trained and educated on the law and various treatments that are available for vulnerable people suffering mental health issues.

One such approach police could take is to convey vulnerable people who have been arrested to an appropriate hospital for treatment instead of the police station cells. The key to being in a position to do this is perhaps in the ability to be trained well enough to identify the signs of mental health illnesses and conditions as early as possible.

The law and Penalties for Assaulting a Police Officer in the Execution of Duty in NSW

In NSW, it is against the law to assault a police officer, and these offences are taken very seriously, chiefly because of the position of vulnerability that police are placed in.

Equally, these offences are taken very seriously in order to send a message to the community that the courts will not hesitate to treat assaults on police sternly.

In fact, quite often, the slightest contact with a police officer in the execution of their duty can result in you getting charged for assaulting police.

A person who assaults, stalks, harasses or intimidates a police officer if no actual bodily harm (i.e. bruising or scratches) is caused to the police officer will face a penalty of up to 5 years imprisonment.

A person who does this to a police officer in circumstances of a public disorder will face a penalty of up to 7 years imprisonment.

A person who assaults a police officer causing him/her actual bodily harm (i.e. bruising or scratches) will face a penalty of up to 7-years imprisonment. This offence also carries a 3-year ‘standard non-parole period’.

This means that if a particular case is seen as falling within the middle of the range of objective seriousness for offences of this section, then the Judge or Magistrate is required to consider imposing the standard 3-years Full-Time Imprisonment (non-parole period) before being eligible for release on parole.

That standard non-parole period is only a guide or yardstick for the Judge or Magistrate to consider in assisting in the sentence. It is not mandatory.

A person who does this to a police officer in circumstances of a public disorder will face a penalty of up to 9 years imprisonment.

The penalties are heavier in more aggravating circumstances, for example, a person who wounds or causes grievous bodily harm (i.e. broken bone) to a police officer, and is reckless as to causing ‘actual bodily harm’ to the officer at the time (i.e. bruising or scratching) will face a penalty of up to 12 years imprisonment- this offence also carries a ‘standard non-parole period’ of 5 years imprisonment.

Wounding can include any permanent or serious disfiguring or cut of the interior layer of the skin.

Being ‘reckless’ includes a situation where, at the time, you had realised that the bodily harm caused might have been caused on the alleged victim by your actions- but you went ahead and did it anyway.

If this is done in circumstances of a public disorder, the penalty is up to 14 years imprisonment.

This is reflected in section 60 of the Crimes Act 1900 (NSW).

A person can face these penalties on a charge of assaulting a police officer even if the police officer was off duty at the time as long as he/she was acting as a police officer in the execution of duty as a police officer pursuant to section 60(4) of the Crimes Act 1900 (NSW).

You will be guilty of assaulting a police officer under section 60 if police can prove each of the following elements beyond reasonable doubt in court:

1. You either assaulted, stalked, harassed, intimidated, caused actual bodily harm, wounded or caused grievous bodily harm to a police officer; and
2. You had an intention of causing this or were reckless as to causing ‘actual bodily harm (in the case of causing grievous bodily harm, all that the police need to prove is that you either intended to or had turned your mind to the possibility that your actions might cause actual bodily harm even if it ends up causing grievous bodily harm); and
3. The police officer’s actions in the circumstances were lawful. This means that the officer was acting in the execution of his/her duty as a police officer when the alleged assault took place.

For an outline on what can amount to an assault other than actual bodily harm or grievous bodily harm or wounding, see our blog on what is common assault?

Here is more on assault charges.

What are the Defences to Assaulting a Police Officer in NSW?

If any one of the following defences to assaulting police apply to your case, your charge will be dismissed in court:

1. The police officer was acting outside his power as a police officer. i.e. where police were conducting an illegal arrest or illegal search.
2. The injury sustained to the police officer was not caused by your actions.
3. In the case of a charge of assaulting police causing grievous bodily harm or wounding, you will be not guilty if the police cannot prove that you at least turned your mind to the possibility that your actions might cause ‘actual bodily harm’.
4. You were acting in self-defence to protect yourself or someone else- provided that your actions are considered a reasonable response in the circumstances you perceived at the time.
5. You were acting under duress or necessity.

Our assault lawyer Sydney team are happy to help if you have any questions arising from this article.

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