Last week, a four-month old baby and her grandfather were enjoying a peaceful afternoon stroll down Crown Street in Surry Hills when a man, completely unknown to them, approached the pair and spat in the baby’s face.
The man then attempted to flee the scene – but as karma would have it, was hit by a car on Foveaux Street. He was arrested a short time later and charged with common assault.
While the offence of assault often conjures up images of punches and kicks, many other actions such as throwing objects and spitting can also give rise to assault charges. In some cases, contact is not necessary for the offence to be proved.
Here is a quick guide to the offence of assault.
Categories of Assault
There are dozens of assault-type offences in NSW. Broadly speaking, four of the most common, from least to most serious, are:
- Common assault;
- Assault occasioning actual bodily harm,
- Reckless or intentional wounding, and
- Recklessly or intentionally causing grievous bodily harm.
There are significant differences between these categories in terms of the nature of the act, the type of injury inflicted and the required state of mind. That said, there are certain factors common to all assault charges.
Firstly, all assaults must be either intentional (deliberate) or reckless ie where the illegal act should have been foreseen.
Secondly, must also be some kind of act by the perpetrator which resulted in physical contact to the complainant or caused them to apprehend (or fear) immediate and unlawful personal violence.
Thirdly, the alleged victim (or ‘complainant’) must not have consented to the act.
Lastly, there must not be a lawful excuse for the act – such as self-defence, duress or necessity.
So, let’s start with the least serious type of assault – common assault.
To make out the offence of common assault, the prosecution must prove beyond reasonable doubt that the defendant ‘battered’ (created unauthorised contact) or otherwise caused another person to fear immediate and unlawful personal violence.
Accidental touching – for example, bumping into somebody in a crowded street – will not constitute assault, nor will other acts which are a necessary part of everyday life.
The maximum penalty for common assault is 2 years imprisonment.
Assault occasioning actual bodily harm (often referred to as ‘AOABH’) is the next most serious type of assault. It involves some kind of injury that is more than merely ‘transient or trifling’ – for instance, bruises, scratches and other injuries which take some time to heal. It can also involve some kind of psychological injury that goes beyond passing feelings and emotions.
The maximum penalty for AOABH is 5 years imprisonment – but if the charge is dealt with in the Local Court, the maximum penalty is 2 years imprisonment.
Next in the list are ‘wounding’ charges. While ‘wounding’ is not defined in the Crimes Act, various cases have interpreted it as meaning a breaking of both layers of the skin – ie the dermis and epidermis – or a cut lip.
A person can be charged with intentional wounding, reckless wounding, or reckless wounding in company (i.e. in the presence of other people).
Intentional wounding refers to a deliberate attempt to wound a person, while reckless wounding and grievous bodily harm (GBH) cases involve situations where a reasonable person would have realised that actual bodily harm could have occurred – but acted anyhow.
The most serious assault charges generally involve ‘grievous bodily harm’ – or ‘really serious harm’ – such as broken bones, disfigurement or internal organ damage.
The maximum penalties for wounding and GBH offences are as follows:
- Reckless wounding: 7 years imprisonment.
- Reckless wounding in company: 10 years imprisonment;
- Recklessly causing GBH: 10 years imprisonment;
- Recklessly causing GBH in company: 14 years imprisonment;
- Intentionally causing GBH: 25 years imprisonment;
- Intentionally wounding: 25 years imprisonment;
Standard non-parole periods (SNPPs) also apply for many assault charges. SNPPs are ‘guideposts’ or reference points that the judge must consider when deciding the amount of time a person can spend in prison before being eligible for release on parole.
But while these are the most frequently encountered assault charges, bear in mind that there are many other types of assault offences – e.g. assault police, or using a dog to inflict grievous bodily harm to name just a few.
Can I Downgrade my Assault Charge?
Where the prosecution evidence is strong and there is no defence to an assault charge, there may nevertheless be potential to ‘downgrade’ the original charge to a less serious one – for instance, downgrading an AOABH or wounding to a common assault.
Downgrading is a tactic used by experienced assault lawyers to help clients secure the most lenient penalty.
This may be done by writing ‘representations’ (formal letters) to the prosecution to the effect that the injuries sustained, or the defendant’s state of mind, are not consistent with the allegations.
Good lawyers will follow up their representations with charge negotiations with the relevant prosecuting body; fighting to get the best outcomes for their clients.
Assault Charges and AVOs
In many assault cases involving partners, former partners, friends, colleagues or neighbours – assault charges will be accompanied by an apprehended violence order (AVO).
As detailed in many of our blogs, an AVO is a type of court order which prevents a person from assaulting, harassing, molesting, threatening, or otherwise interfering with the complainant. Other conditions may include restrictions on contact and distance.
Generally speaking, if a person is guilty of an assault charge, any accompanying AVO will also become final – usually for a period of 12 months. However, unfair restrictions can often be removed.
Being charged with assault can have serious consequences for your future – so it’s important to get advice from an experienced criminal defence lawyer before fronting court.