The offence of common assault is one of the less serious assault charges in NSW. So what exactly is this offence? Could you be liable? How is it prosecuted? What are the penalties?
Read on for a quick guide to common assault.
What is assault?
An assault is any unauthorised touching or any act that causes another to apprehend immediate violence.
The offence of common assault is defined in section 61 of the Crimes Act 1900. Two things must occur for a charge of common assault to be made:
- You must have assaulted another person.
- You must not have occasioned actual bodily harm to that person. That is, the person must not have received an injury that is more than ‘transient or trifling’.
If the other person has been injured to any significant extent, then you may face a more serious assault charge.
Common assault tends to be used in cases where there was little or no physical contact.
If the other person is significantly hurt, harmed or injured, the offence can be elevated to a more serious charge, such as:
- Assault occasioning actual bodily harm.
- Wounding or grievous bodily harm with intent.
- Reckless grievous bodily harm or wounding.
- Indecent assault.
Can I be charged with common assault?
There is no need for you to actually carry out violence against someone for you to be charged with common assault.
You can be guilty of an assault even if you did not touch that person.
It’s the fear that is felt by the other person that matters.
For example, if you feint towards someone suggesting an imminent punch or attack, that act alone amounts to an assault if the person to whom it was directed feared violence. It does not matter that you did not actually carry out a physical attack.
As another example, consider a road rage incident. If you decide to tailgate another driver, your intention is to instil fear in them, isn’t it? If that person does fear you hitting their car, it amounts to an assault.
You can also assault someone by certain types of stalking, harassment or intimidation, or filming them in a private situation, such as while they are showering, without their consent.
All of these actions can constitute assaults toward another person.
They may also constitute more serious criminal offences for which you may be charged, but common assault is the basic offence.
You cannot assault someone if they consent, unless the actual contact was intended to cause injury.
So in rugby, tackling someone else in accordance with the rules is not an assault, although elbowing them in that tackle is.
Prosecution of common assault cases
You can be prosecuted on indictment for the offence of common assault, if the prosecution elects to proceed that way. This means the matter could go before a jury.
Generally though, this offence is dealt with as a summary offence in the local court, before a magistrate. It is dealt with far more quickly in the local court than if you were to face a jury trial.
In order for assault to be proven, you also need to have intended the assault or at least been reckless about it. The road rage example above is a clear illustration of intending the assault – it’s a deliberate act of tailgating another.
Recklessness is a little more complex. Essentially, it means that you may not have intended the act at the start, but even having seen the person fear injury, you continued on with the behaviour.
Turning to the example of feinting towards someone like a boxer, if you did not initially intend to instil fear in the other person, that person clearly seemed scared, and then you continued, this would be an example of having a reckless attitude in the assault.
This can be a confusing area of law, and if you have been charged with common assault, a specialist criminal lawyer can dissect your case and defend you as best as possible.
Penalties for common assault
The maximum penalty for common assault is a fine of up to $2,200, or a maximum prison sentence of two years.
Sentencing for this offence varies, you can also face a community service order or intensive corrections order.
It is possible to receive a good behaviour bond, a suspended sentence, or even avoid a conviction altogether by getting a ‘section 10 finding of guilt with no conviction’.
A conviction can be entered against you for common assault.
Convictions can have an ongoing impact on your personal life, travel or business, so it’s a good idea to get specialist legal advice if you feel you may be able to get a section 10 in your case.
If you wish plead guilty to common assault, it is recommended that you good representation at your sentencing hearing because of the fact that the penalties vary so widely.
A good defence lawyer can advocate for your interests in court with the aim of achieving the most lenient penalty in your case. In many cases, they can even help you avoid a criminal record altogether.