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What do I do if I am charged with assault?
Assault covers a broad range of offences, from merely touching a person to murder. Offences that can be charged under the banner of “assault”:
- Common assault
- Assault occasioning actual bodily harm
- Reckless wounding
- Reckless grievous bodily harm
- Intent to cause grievous bodily harm
- Assault of a police officer
- Assault causing death – ‘one punch legislation’
- Attempt to choke
- Administer intoxicating substance.
Any assault conviction can appear on your criminal record.
Common assault may be charged where there has been no bodily harm. There are many acts that may constitute a common assault, these include touching someone, punching a person but it has not resulted in bodily harm and spitting on a person. Even threatening a person can constitute common assault, even without physical contact. The maximum gaol term for common assault offences is 2 years. However, there may be aggravating factors (for example if the person assaulted is a police officer) that could increase the maximum penalty.
Assault Occasioning in Actual Bodily Harm
Assault occasioning actual bodily harm is available where there has been an assault and the victim has suffered an injury. What injuries come within this offence is not defined by the legislation but it generally includes where there are scratches or bruises to the victim. It can also include psychological injuries.
The maximum gaol term for this offence is 5 years or 7 years if committed in company. There is no need for the police to prove that the offender had the intention to assault the victim. They will only need to prove there was an assault, the assault caused actual bodily harm and that the offender committed the assault.
“Wounding” is not defined under the legislation but the courts have defined it at common law as an injury that breaks the skin. This does not require a weapon and at times the injury might be quite minor. The seriousness of this offence will depend on the wounds of the victim, obviously the more serious the wound, the more serious the offence. The court will also look to the nature of the attack, for example, the number of blows the victim received and the circumstances of the attack. The maximum gaol term for reckless wounding is 7 years or 10 years if committed in company.
(Reckless) Grievous Bodily Harm – what is grievous bodily harm?
There is no list of injuries that come under this offence, however, ‘grievous bodily harm’ includes any serious injury and any permanent or serious disfigurement. Even if the victim makes a full recovery, grievous bodily harm will be available, there is no requirement that the offence be permanent. It will be a matter for the court to determine whether the injury amounts to grievous bodily harm.
The maximum gaol term for this offence is 10 years or 14 years if committed in company.
What constitutes recklessness?
This is a consideration of the mental state of the offender at the time of the offence. The prosecution will need to prove that the offender understood that some type of harm could result from their actions. For example, if the accused understood that punching a person in the face could result in a broken nose then they have been reckless as to that harm and they will come within the requirements of this offence.
Intent to cause grievous bodily harm
Like the above offence, the court will be required to determine whether the injury constitutes ‘grievous bodily harm’. However, as the title suggests the police will be required to prove that the offender injured the victim with the intent to do so. The maximum gaol term for this offence is 25 years.
Assault police officer in the execution of their duties
An assault of a police officer is a serious offence and will attract an equally serious punishment as deterrence will be a consideration for the court. The maximum gaol term for this offence is 5 years. There are other offences that deal with the assault of police, they include:
- Assault, throw missile at, stalk, harass or intimidate – maximum penalty is 5 years imprisonment
- Assault occasioning actual bodily harm – maximum penalty is 7 years
- Wound or inflict grievous bodily harm – maximum penalty is 12 years.
Assault causing death
This is the offence brought in by the O’Farrell government in an attempt to redress the one punch assaults.
This offence prescribes a mandatory minimum sentence of 8 years, but the offender is liable for 20 years imprisonment or 25 if they are intoxicated. The elements required to be proved by the police are as follows:
- There was an assault and the offender intentionally hit the victim with either their body or an object held by them
- This assault was not authorised or excused by law
- The victim died as a result of the assault
- This offence is largely unnecessary as one punch assaults can be adequately dealt with under the offence of manslaughter, but it does seem to provide for heavier penalties.
Attempt to choke
It is an offence to attempt to choke, suffocate or strangle a person. The maximum gaol term for this offence is 25 years imprisonment.
Administer intoxicating substance
This legislation has to do with drink spiking. ‘Intoxicating’ includes alcohol, narcotic drugs or any other substance that affects a person’s senses or understanding. The court considers this to be a very serious offence. It is an offence to administer an intoxicating substance with the intent to commit an indictable offence (for example, sexual offence). The offence is further aggravated if the substance that is administered has the potential to injure the victim. The maximum gaol term for this offence is 25 years imprisonment.
Factors the court will consider in assault matters
To determine the gravity of a personal violence offence, the court will consider the following:
- Extent and nature of the injuries of the victim. The nature of the victim’s injuries will determine the seriousness of the offence committed and the appropriate sentence to be imposed. Generally, the more serious the injury the more serious the offence and harsher penalty
- Degree of violence inflected by the offender. This will influence the sentence that is to be imposed on the accused. The more ferocious the attack, the harsher the penalty will be
- Intention/mental element. This factor is generally dealt with by the statute setting out the offence.
When it comes to assaults there are aggravating factors that will make the offence more serious. Some of the below aggravating factors are fairly common in personal violence offences. Where there are aggravating factors the sentence imposed on the offender is likely to be more severe. Aggravating factors include:
- Weapons – actual use or threatened use in the commission of the assault. This includes weapons such as knives, firearms, syringes, glasses or broken bottles
- Premeditation – Where premeditation or planning is a factor, the court will look to the degree of premeditation when determining the seriousness of the offence committed
- Unprovoked offence – Where the attack is unprovoked and unjustified
- Offence committed in company – Where the offence is committed in the company of others
- Vulnerable victim – Where the victim is vulnerable (for example, due to age, disability or occupation i.e. a service station attendant or bus driver or security officer)
- Commission of offence in victim’s home – for example during a robbery or where the accused has entered the property of the victim and then assaulted them
- Gratuitous cruelty – This is where the offence goes beyond just being violent in nature, it includes situations where the offender has gone beyond having no justification for causing pain. An example of gratuitous cruelty is found where the offender tortured the victim or the offender punches or kicks a pregnant woman in the stomach, causing a miscarriage. Another example of gratuitous cruelty was where a victim (who was 3) suffered 57 injuries including internal injuries and dehydration as well as bite marks
- Substantial harm – Where the injury, emotional harm, loss or damage caused by the offence was substantial, for example where the victim has suffered ongoing medical problems and not been able to work as a result of the assault
- Intoxication – Intoxication can be a result of either alcohol or drugs.
Just as there are factors that may increase the severity of the offence committed and result in a harsher penalty being imposed on the accused, there are also mitigating factors which serve to lessen the severity of the offence committed by the accused. Mitigating factors include:
- Injury or harm not being substantial – for example if the victim’s wounds are healed or were not substantial in the first place
- Provocation – where the offender was provoked by the victim into committing the offence
- Sexual assault
- Indecent assault
- Drug possession and supply
- Fraud charges
- Money laundering
- ASIC offences
- Insider trading
- Theft charges
- Firearms offences
- Land and Environment Court prosecutions
- Local Council prosecutions
- Local Court, District Court and Supreme Court trials including homicide charges.
Our team is led by a former police officer and prosecutor, Patrick Schmidt. He is available 24/7 to help you. Call him today on 0410 593 059 to discuss your case.
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