If you have been charged with assault, you should obtain legal advice immediately. There are many types of assault, involving different elements, penalties and procedures. Contact us for a free initial consultation.
Assault is an offence at common law. It is also supplemented by Section 61 of the Crimes Act 1900 (NSW). It is an indictable offence, though it is generally prosecuted summarily before the Local Court unless the prosecutor elects otherwise. When dealt with in the Local Court, the maximum penalty is 2 years imprisonment and/or 50 penalty units. When dealt with on indictment, the maximum penalty is 2 years imprisonment.
The prosecution must establish the following elements to prove a common assault charge:
- The accused touched/applied force, or threatened immediate violence, to another; and
- The conduct was intentional or reckless; and
- The act was non-consensual; and
- The act was done without lawful excuse.
ASSAULT OCCASIONING ACTUAL BODILY HARM
Section 59 of the Crimes Act 1900 (NSW) sets out the offence of assault occasioning actual bodily harm. It provides for a maximum penalty of 5 years imprisonment, or 7 years if the offence is committed in the company of another person or persons. If the matter is dealt with in the Local Court, the maximum penalty is 2 years imprisonment and/or 50 penalty units.
The prosecution must establish the elements of common assault, as well as the additional element of ‘actual bodily harm’. Actual bodily harm is injury that is more than merely transient or trifling.
ASSAULT CAUSING DEATH – MANDATORY MINIMUM SENTENCE MAY APPLY
Section 25A was inserted into the Crimes Act 1900 (NSW) in 2014, as part of the Government’s ‘coward punch’ or ‘one punch’ laws. It is followed by a Section 25B, which provides for a mandatory minimum sentence attaching to an offence under Section 25A(2). Mandatory minimum sentencing is a new development in New South Wales – and a controversial one. It takes considerable power from the Courts and exposes defendants to inflexible sentencing outcomes. As such, legal representation should be promptly sought.
The offence requires proof of the following elements, set out in Section 25A(1):
- The accused assaults another person by intentionally hitting the other person with any part of the person’s body or with an object held by the person; and
- The assault is not authorised or excused by law; and
- The assault causes the death of the other person.
The maximum penalty for an offence against Section 25A(1) is imprisonment for 20 years.
Section 25A(2) adds the following element:
- The person is of or above the age of 18 years and is intoxicated when committing an offence against Section 25A(1).
The maximum penalty for an offence against Section 25A(2) is imprisonment for 25 years. The MINIMUM penalty is imprisonment for 8 years.
As such, it is important to obtain legal advice to maximise your chances of a good outcome at Court.
If you are seeking legal advice, contact us for a free initial consultation.