Affray in NSW is an offence against section 93C of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of ten years imprisonment.
What Constitutes As Affray?
An affray is where one or more persons uses, or threatens the use of, unlawful violence towards another person or group of people. Also, their conduct is such that a person of reasonable firmness, present at the scene, would fear for his, or her, personal safety.
Most affrays involve a fight between two or more people that cause people who are not involved in the fight to fear that they may be harmed.
It is important to note that the person of reasonable firmness is a hypothetical person and does not actually have to be present for an affray charge to be made out. It is simply enough that they are likely to be present. Where a fight takes place in a public place or somewhere that a member of the public would reasonably be present this is often enough.
What Must The Police Prove?
To be found guilty of an affray, the police must prove the following:
- That you, with or without other people, threatened or used unlawful violence
- That this use caused or would have likely caused a person of reasonable firmness to fear for their physical safety
The maximum penalty for an affray is a term of imprisonment for a maximum of 10 years if heard on indictment.
Affrays are most commonly dealt with summarily meaning the maximum penalty is subject to the jurisdictional maximum of 2 years.
Possible Defences For Affray
It is always a defence where you believe that an essential element of an offence can not be proved by the prosecution some specific defences to this type of offence include:
Self-Defence
In most matters involving a personal violence offence, self-defence is an available defence. Self-defence is a complete defence, meaning if it is made out you will be found not guilty. Self-defence is set out in section 418 of the Crimes Act 1900 (NSW).
When a person charged with a personal violence offence claims self-defence the Court has to ask itself two questions:
- Did you have a reasonable fear of an imminent attack?
- Was your response reasonable to the threat as you perceived it?
The first question is a basic one. Did you as the defendant, reasonably fear or apprehend that you would be physically attacked?
Where an assault is already taking place against you, this question will always be answered in the affirmative. The question also considers situations where an attack hasn’t taken place yet but you fear that one is imminent. In other words, a pre-emptive strike is capable of being an act of self-defence.
The question is always asked from view of you as the defendant. The question is if YOU believed that you were at risk of being physically attacked. This means all that needs to be shown to the court is that you, as the defendant, held this fear. It is not viewed from the lens of an outside person assessing the situation.
The second question is a touch more complex.
For the second question to be answered in the affirmative, it must be shown that your response was a reasonable one for what you perceived the threat to be. This question is not wholly answered from you, the defendant’s point of view. The question is asked to a hypothetical third person and if that person would have responded in the same, or similar matter to how you responded. It is important to understand that this hypothetical third person is responding to the same threat that was perceived by you. This means that if you perceived that your life was in danger, your response will be measured against that threat.
If the court finds that the answer to these two questions is yes, then you will be found not guilty.
Duress
It is a defence if the offending conduct was done under duress. Duress is where an offender is placed in a situation where they have no choice other than to commit an offence due to serious threats to either them or their family.
The defence of duress involves 3 critical elements. A person will not be held criminally responsible for an offence if the offence was committed:
- Because of threats of death or really serious injury to him or herself or to their family, and
- Those threats being of such a nature that a person:
- Of ordinary firmness and strength of will
- Of the same maturity and sex of the accused, and
- In the accused’s position,
- Would have given in to the threats and committed the offence
Element 1:
When looking at the first element, the question is whether a threat was made and if they were, what led the accused to believe they would happen.. These threats may be made expressly or impliedly. It does not matter if there is no real threat to the person or family. What matters is whether the person held a genuine belief that there is an imminent threat of death or serious injury to his or her self or family if he or she did not do what was demanded of them.
Element 2:
The second element is an assessment of the circumstances surrounding the threats. When considering this element the Court will have regard to, among others, the nature of the threat, the person making the threat, the accused’s knowledge of the person making the threat and all circumstances which may affect a reasonable person’s reaction to the threats.
Essentially the test for this second element is if you place an ordinary and reasonable person of the same maturity and sex of the accused in the exact same set of circumstances posed to the accused, would that reasonable person succumb to those threats and commit the offence.
Element 3:
When assessing the third element, the question is whether there are any other alternatives other than committing the offence. A person will not be able to raise the defence of duress even if they held a reasonable belief that the threats would be carried out if he or she could have avoided the threats by alternative means other than committing the offence.
If the prosecution disproves any of the three elements listed above then that the defence will not be made out. If they are unable to disprove any of the elements then offender should be found not guilty.
Penalties For Affray In NSW
Affrays are a serious offence in NSW, this is reflected by their maximum penalty being a term of imprisonment for 10 years! Compare this to an offence of common assault which only carries a maximum penalty of 2 years imprisonment. Most commonly, for first offenders, the Court will impose a good behaviour order in the style of a conditional release order. It is open to the Court to impose a non-conviction where the offence is a trivial example of the type of offending or there are otherwise good reasons to do so.
The Court may impose any of the following conditions:
Conditional Release Order
Conditional release orders (CRO) are often used to deal with first time offenders and less serious offences where the offender is unlikely to present a risk to the community.
A CRO is an order of the Court that you are to be of good behaviour (not commit any other offences) for a specific period of time.
CRO’s can include conditions, such as, drug and alcohol abstention, requirements to attend programs, non-association requirements or place restrictions where appropriate. CRO’s can also have a supervision condition. Court’s have discretion to not impose a conviction on a CRO, if they consider it appropriate. CRO’s can be for a maximum period of 2 years.
The CRO acts as a warning and provides the option to divert less serious offenders out of the criminal justice system, freeing up resources to deal with the offenders who cause the greatest concern to the community. If an offender commits any further offences while on a CRO, subsequent penalties may be more severe.
Community Correction Order
Community correction order’s (CCO) are used to punish offenders for offences that do not warrant imprisonment or an intensive corrections order, but are too serious to be dealt with by a fine or lower level penalty.
CCO’s are a flexible sentence that the Court can tailor to reflect the nature of the offender and the offence. The Court can select from the range of conditions, such as, supervision by community correction officers, community service work (up to 500 hours) and curfews, to hold offenders to account and reduce their risk of reoffending. CCO’s can be imposed for a period of up to three years.
Intensive Correction Order
An Intensive Correction Order (ICO) is a custodial sentence that the Court decides can be served in the community. Community safety is the Court’s paramount consideration when making this decision. ICO’s can be for a maximum of 2 years for single offences and up to 3 years where there are multiple offences.
Supervision is a mandatory condition of an ICO. Further the Court’s must impose at least one additional condition. Conditions that can be included in an ICO are: home detention, electronic monitoring, curfews, community service work (up to 750 hours), alcohol/drug bans, place restrictions, or non-association requirements. Offenders may also be required to participate in programs that target the causes of their behaviour.
The ICO is the most serious sentence that an offender can serve in the community. ICO’s are not be available for offenders who have been convicted of murder, manslaughter, sexual assault, any sexual offence against a child, offences involving discharge of a firearm, terrorism offences, breaches of serious crime prevention orders, or breaches of public safety orders.
A person convicted of a domestic violence offence can only be sentenced to an ICO if the Court is satisfied that the victim or likely co-residents can be adequately protected. For example, a domestic violence offender is not eligible for an ICO with a home detention condition if they are intending to reside with the victim.
Full Time Imprisonment
Full time imprisonment is the most serious penalty a Court can impose. The sentence involves a period of time that will be spent inside a NSW correctional centre. When imposing a full time custodial sentence in most circumstances the court will apply a non-parole period, this is the minimum time that must be spent in a correctional centre. After the expiration of the non-parole period you will be eligible for release with the remainder of the sentence to be spent in the community on parole.
Book A Free Consultation For An Affray Charge
If you, or anyone you know, has been charged with an affray, it is important that you seek legal advice as early as possible. Our lawyers at First Offence Legal are experts in all types of assault matters and can give you advice on you appropriate plea and likely sentences if you are found guilty.
If you, or anyone you know, has been charged with an affray, you should call First Offence Legal and book your no obligation, free consultation. Remember to always make First Offence Legal your first defence.