Common Assault is an offence under section 60 of the NSW Crimes Act and carries a maximum penalty of 2 years full time imprisonment. Common Assaults are one of the most common offences prosecuted in NSW.
What constitutes common assault?
There are two types of Common Assault in NSW. The first is where a person makes intentional unlawful physical contact with another person and the second is where a person makes another person apprehend imminent unlawful violence being used against them.
Assaults can occur intentionally or recklessly. Spitting on another person is a form of assault.
Common Assaults can be particularised as Domestic Violence related when the Offender and the Victim are in a domestic relationship. Where this is the case the offence is considered to be significantly more serious.
What the Police Must Prove
To be found guilty of an offence of Common Assault in NSW the police must prove the following:
- That you made unlawful physical contact with another person or made another person fear imminent unlawful violence against their person; and
- That you intended to do so or were reckless to doing so
Possible defences for common assault
It is always a defence where you believe that an essential element of an offence cannot be proved by the prosecution some specific defences to this type of offence include:
In most matters involving a personal violence offence, Self Defence is an available defence. Self-Defence is a complete defence, meaning if you make it out you will be found not guilty. Self-defence is set out in section 418 of the NSW Crimes act.
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 preemptive 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.
It is a defence to many offences where the offending conduct was done due to 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
When looking at the first element, the question is whether a threat was made, and if so, what led the accused to believe the threat would be carried out. 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.
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.
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 common assault in NSW
When sentencing an offender for Common Assault the courts have a number of options. 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.
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.
CROs can include conditions such as drug and alcohol abstention, requirements to attend programs, non-association requirements or place restrictions where appropriate. CROs can also have a supervision condition. Courts have discretion to not impose a conviction on a CRO, if they consider it appropriate. CROs 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 Corrections 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 Corrections Officers, community service work (up to 500 hours) and curfews, to hold offenders to account and reduce their risk of reoffending. CCOs can be imposed for a period of up to three years.
Intensive Corrections Order
An Intensive Corrections 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 Courts 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. ICOs 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 an 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 first offence Common Assault
Our Lawyers at First Offence Legal have represented many clients who have been charged with Common Assault, we are experts in these types of matters!! We can assist you in successfully defending the matter in court or help you get the best result possible on sentence.
If you or anyone you know has been charged with a Common Assault you should Contact First Offence Legal and book a free no obligation consultation. Remember to always make First Offence Legal your first defence!