An assault is any unauthorised touching or any action that causes another person to fear immediate and unlawful personal violence.
It can be stressful and upsetting being charged with common assault, but you can trust the experienced defence team at Sydney Criminal Lawyers® to go above and beyond to ensure that you get the best possible outcome in your case.
To be found guilty of assault, the prosecution must prove three things beyond a reasonable doubt:
While assault may involve touching another person without their consent, there can be a common assault even if there was no touching at all.
For example, shouting at another person and causing them to fear violence is enough to constitute a common assault.
However, if you feel that the prosecution will be unable to prove these two elements beyond a reasonable doubt, you may wish to plead ‘not guilty’ to the charges.
Our lawyers are vastly experienced at defending and winning common assault cases at court, and can force the prosecution to prove the charges beyond reasonable doubt.
If the prosecution are unable to do so, you will be found not guilty.
Alternatively, our lawyers may identify a legal defence that you have and get your case ‘dropped’ at an early stage or thrown out of court on that basis.
Some of the defences to common assault include:
If you agree with the charge of common assault, you may wish to enter a plea of guilty at an early opportunity.
Once you have entered a guilty plea, you will usually proceed straight to sentencing which is where the magistrate determines the appropriate penalty for your actions.
By pleading guilty at an early stage, you will be spared the time and expense of a defended hearing.
You may also receive a more favourable outcome, as you will demonstrate to the court that you are accepting responsibility for your actions by pleading guilty.
You may even avoid a criminal conviction altogether by persuading the magistrate to make a ‘section 10 dismissal or conditional release order‘ – which means guilty but no conviction is recorded against you.
However, before entering a plea to any criminal offence, it is important to speak to an experienced criminal lawyer who will be able to advise you about your options.
If you are willing to plead guilty, you may be wondering what kind of penalties you could face once convicted.
The maximum penalty of common assault is 2 years’ imprisonment and/or a fine of up to $5,500.
It is important to remember that these are maximum penalties only, so they will only apply in the most serious of cases.
The magistrate will determine the appropriate penalty in your case after considering all the facts and circumstances of your case.
If you are a person of good character and the offence is not very serious, you may be able to avoid a criminal record altogether.
The penalties that the court may impose include:
If you’ve been charged with common assault, you may be wondering what the prosecution needs to prove, and what kind of penalties you could face.
We have included some additional detailed information on these topics below.
What does the prosecution need to prove?
To be found guilty of assault, the prosecution must prove beyond a reasonable doubt that:
1. That you acted in a way that caused another person to fear immediate and unlawful personal violence OR that you touched another person without their consent;
The central feature of assault is that your actions must have caused another person to fear some form of personal violence. This means that no physical contact needs to occur in order for there to be an assault.
Furthermore, the threat must be immediate – a verbal threat of future violence will not constitute an assault, for example, ‘I’m going to ruin your life.’
2. That the other person did not consent to your actions
If there is physical contact, then it must be shown to be non-consensual – that is, the other person must not have given you permission to touch them.
3. That you acted intentionally or recklessly
Assault will not include situations where you accidently came into contact with another person, for example in large crowds.
The prosecution must prove that you intended to cause the other person to fear immediate personal violence, or that you did so recklessly; in other words, that you knew that your actions would cause the other person to fear immediate violence.
If your actions were reckless and resulted in physical contact, the prosecution has to prove that you realised that your actions may have resulted in some form of physical contact, however slight.
4. That you did not have a lawful excuse for your actions
It must be shown that you did not have some reasonable and lawful excuse for your conduct. For example, if you tackled someone whilst playing football and it was within the rules of the game, it would not constitute an assault.
What kind of penalties could I face?
The type of penalty that you will face depends on a wide range of factors, including the court that you matter is heard in.
Generally, common assault matters are heard in the Local Court before a magistrate, however in some situations the prosecution may request that the matter be heard in the District Court in front of a judge.
The maximum penalty for common assault is 2 years’ imprisonment and/or a fine of up to $5,500.
However, these are maximum penalties only, which means that they will only apply in the most serious of cases. In most cases, you will get a much lesser penalty.
Statistics indicate that the most common penalty for common assault was a section 9 good behaviour bond, which is a bond with a criminal conviction, followed by a section 10 bond (now conditional release order without conviction) which is a bond without conviction.
A good behaviour bond means that you must not commit any further offences as long as the bond is in place.
Section 10 bonds (now conditional release order without conviction) can last up to 2 years and section 9 bonds can last up to 5 years.
The bond may also impose additional conditions upon you – for example, you may be prohibited from entering a particular area.
If you breach a bond, you may be called back to court and a more severe penalty may be applied.
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