Common assault is the least serious assault-category offence and is normally brought in cases where no serious injuries have occurred.
Common assault is generally dealt with in the local court, but the prosecution may elect to take it up to the district court if it is of the view the overall circumstances are particularly serious.
The maximum penalty for common assault in New South Wales is a prison sentence of 2 years and/or a fine of $5,500.
If you plead guilty or are found guilty, the magistrate or judge has a range of sentencing options at his or her disposal, including good behaviour bonds, a fine or even allowing you to avoid a criminal conviction altogether.
What penalty will I get for common assault?
The applicable penalty for any particular common assault offence will depend on a number of different factors.
A good behaviour bond or a fine may be given for common assault in NSW if you plead guilty, or if the prosecution can prove that you are guilty.
Alternatively, the court may dispose of the case without a conviction. Prison is always the last resort.
What does the prosecution need to prove?
For you to be guilty of common assault, the prosecution needs to prove each of the following matters beyond reasonable doubt:
1. That there was an act by the accused which intentionally, or recklessly, caused another person (the complainant) to apprehend immediate and unlawful violence.
2. That such conduct was without the consent of the complainant.
3. That such conduct was intentional or reckless in the sense that the accused realised that the complainant might fear that the complainant would then and there be subject to immediate and unlawful violence and none the less went on and took that risk.
4. That such conduct was without lawful excuse.
When can a common assault occur?
A common assault can occur where there was physical contact e.g. pushing or hitting may be treated more severely than an alleged common assault where there was no physical contact, e.g. spitting. They can also occur where one person puts another in fear for their immediate physical safety, even if there is no contact at all.
Can I avoid a fine for a common assault charge?
If the charges are withdrawn or thrown out of court, you will not receive a penalty.
But it’s important to be aware that you may be able to avoid a conviction altogether, and therefore a fine, if you are guilty but are able to convince the court not to place a conviction on your criminal record.
Alternatively, the court may decide to impose another form of penalty after a finding of guilty, including a fine.
When deciding how much a fine for common assault should be, the magistrate will consider the maximum penalty – which is a fine of $5,500 – and take your personal financial circumstances into consideration.
If paying a fine would cause severe difficulties, your lawyer can make sure the magistrate is aware of this and it may be taken into consideration when deciding your penalty or the amount of the fine.
The best way to avoid a conviction for a common assault charge is to have a good defence, and to present yourself in the most positive light possible in court.
This can mean obtaining character references, writing a letter of apology if you are pleading guilty, and explaining any personal circumstances or recent events that may have contributed to the offence.
Seeking advice from an experienced lawyer can help you get a positive outcome for your common assault charge.