In the local court’s assault cases are quite commonly heard. In NSW, they are the second most common offences brought before the courts. Drunk and drug driving offences take out first place. So this would indicate that far too many people find themselves facing assault and battery charges or coming to court as the victim of a physical assault. For this reason, it is good to have an understanding of legal rights concerning assault offences, the various types of outcomes, charges, and the impact of a criminal conviction. To get the best result, seek advice from a lawyer or law firm.
What is assault?
There are two meanings to the word assault. The first, making a physically violent attack on someone, physically hitting, striking, smacking, or beating, or making unwanted physical contact, is specific to assault charges. The second meaning is when someone makes a real effort to do something. For example, Jane assaulted the mountain.
In the legal world, the definition can vary from one jurisdiction to another; however, the generally accepted definition is to put another person in a position where they experience reasonable apprehension of intentional harmful or offensive contact. The difference here is that physical injury is not required for an event to be considered an assault.
The fundamental elements include:
a. An act that is intended to make the person feel apprehension about harmful or offensive contact. It is where a threat causes the receiver anxiety, uneasiness, or dread.
b. Someone saying they will cause you some harm is not enough to be considered assault. However, if the assaulter comes forward with some action that shows the person has the ability to carry out the threat, that may be acceptable. The intent, in this case, is essential.
c. An attempt to commit the action.
The act of an assault is always intentional.
Tort Law And Criminal Law
It is helpful to have a basic understanding of the meaning of tort law and criminal law.
Tort refers to a legal wrong committed against one person by another, where the outcome leads to an award of damages. Tort law covers most assault harms that are not criminal. For example: If a person attacks another person, scratching their face and punching the person in the mouth, it may be seen as an intentional tort of battery. Some torts cause harm or damage to property, like a broken window, while many relate to a person’s physical injury.
Criminal law considers punishment for a person who commits a crime. In criminal law, the two people involved would dispute their rights. In Australia, the purpose of criminal law is to bring about and enforce criminal penalties. These can include fines, imprisonment, or community service, depending on the severity of the crime.
Types of Assault
There are different types or levels of assault considered by the law. For example, if the assault is inflicted using a weapon, it may be regarded as aggravated assault. So, what are the variances?
A common assault is when a person intentionally threatens to apply force or applies force to another person without the person’s consent. It is the seriousness of the assault that differentiates the type of assault. In a common assault, the physical attack leads to little or no bodily harm or injury.
The following actions would be considered common assault, threatening to cause someone harm, spitting on a person or hitting, punching, slapping, or kicking a person without causing the person any bodily harm.
Assault and Battery
With regards to assault and battery, it is the combination of the two. In an assault and battery charge, the assault aspect refers to the act of recklessly or intentionally making a person fear the imminent infliction of an attack or violent action against them. Battery refers to the actual infliction of force or violent act. Interestingly, you can have one without the other. You can have a battery without the assault or vice versa.
You will find assault and battery in both tort and criminal law. The critical difference between a battery charge and an assault charge is that harm has been inflicted in a battery charge, whereas the threat of harm constitutes an assault.
An assault is both a crime and a tort and can lead to criminal prosecution or civil liability.
Assault Occasioning Actual Bodily Harm
If the person attacked is injured to the extent that they suffer from bruising or swelling and the injury requires the person to seek medical treatment or take time off work, it is referred to as an assault occasioning bodily harm. The court will consider if the injury has interfered with the health and comfort of the victim. It will not be considered assault, occasioning actual bodily harm if the victim suffers only pain and discomfort. There needs to be some bodily evidence of the attack.
So, a physical injury, whether temporary or permanent, is considered actual bodily harm.
An assault that leads to wounding is defined as unlawful wounding. Unlawful wounding is where the interior layer of skin is cut or broken. A superficial cut, where only the outer layer of skin is damaged, is unlikely to be deemed unlawful wounding. Medical evidence would be relied upon to justify a charge of wounding.
Grievous Bodily Harm
Grievous bodily harm is a severe form of assault where the person attacked:
a. Suffers the loss of a distinct part of an organ, including broken teeth or bones.
b. Suffers severe disfigurement.
c. Suffers from an injury that, if not treated, would cause permanent injury or endanger the person’s life.
Three things are considered when deciding the seriousness of the grievous bodily harm charge. The first is the nature of the harm inflicted and if the injury is permanent, severe, life-threatening, or has led to significant and life-changing disability. Secondly, they will consider if it was a single or repeated act and, thirdly, the circumstances and background that led to the action.
What is an aggravated assault? It is an assault in which a weapon or the threat of a weapon is used to cause serious bodily injury. Such injury can be purposely caused, knowingly, or recklessly. If the injury makes an extreme difference to the value of the person’s life, or the perpetrator attempts to cause injury with a deadly weapon, it would be aggravated assault. It will be considered aggravated assault occasioning bodily harm if the person is badly injured.
Sexual assault refers to:
a. an incident when someone is touched inappropriately
b. when someone is forced to commit an act of gross indecency. (Gross indecency is any sexual act that does not lead to penetration. It includes such things as being forced to touch someone’s genitals or to watch someone masturbate.)
c. When a perpetrator uses force to make someone observe an act of gross indecency.
d. Rape – this is an assault where the perpetrator forces intercourse on someone without their consent. It is the most severe type of sexual assault.
If the perpetrator uses a weapon or threatens to use the weapon during the sexual assault, it is called aggravated sexual assault.
There is quite a range of penalties for the various types of assault, depending on the situation’s complexity and seriousness.
A conviction or charge of common assault in NSW brings a maximum penalty of two years in prison. There are several elements taken into account when deciding on a conviction. These include:
a. The severity of the assault.
b. The circumstances that led to the assault.
c. If the perpetrator has a criminal history.
There is a range of penalties depending on severity, including:
a. A good behaviour bond. (A good behaviour bond in the Australian legal system is a non-custodial sentence – meaning not including prison time – which involves the offending being of good behaviour for a set period.
b. A fine.
c. A community service order where you have to undertake a period of unpaid community work. The court sets the period.
d. A suspended sentence. This term means a set term of imprisonment, but instead of serving that term, the defendant gets a period of probation. In these cases if they complete the probationary period successfully, the sentence will be suspended indefinitely.
e. Intensive Correction Order (ICO). An ICO is the most severe sentence served in the community. It is imprisonment, served intensively in the community rather than in prison. It is done under direct strict supervision by a community corrections officer. An ICO is a sentence of two years or less and is only available to eligible offenders as determined by the legislation.
f. Prison sentence.
A person charged with common assault and convicted receives a criminal conviction that will be placed on record, giving them a criminal record. It is advisable to get legal advice if charged with assault.
Assault causing actual bodily harm
As with common assault, there is a range of penalties depending on the severity of the assault. In NSW
1. The maximum penalty is 5 years imprisonment.
2. If the assault occurs in front of another person, it carries a maximum penalty of 7 years imprisonment.
3. Where the assault leads to wounding, there is a maximum of 7 years in prison.
4. If the assault leading to wounding took place in front of someone, it carries a maximum penalty of ten years imprisonment.
As with common assault, the penalty will depend on the perpetrator’s criminal history, the severity of the act, and the circumstances. The range of penalties is similar to those for a common assault charge.
a. A fine.
b. A good behaviour bond.
c. Community service order.
d. Suspended prison sentence.
e. Intensive correction order.
f. Home detention, which means the person is confined in an approved residence under electronic surveillance.
g. Prison Sentence.
Proof Of Common Assault
The police officer must provide proof to show a defendant is guilty of common assault. The burden for the conviction means the police officer needs to provide sufficient evidence that the defendant is guilty of the charge. They have to prove that the defendant did intend to injure, threaten someone with violence, or did strike with the intention of causing injury. They need to prove that the defendant acted intentionally or recklessly and that the accuser did not give their consent. Finally, they have to show that the act did not occur due to self-defence and not an accident.
Proof of assault occasioning actual bodily harm
As with common assault, the onus is on the police to obtain the required evidence to prove the guilt of the defendant. They have to prove beyond a reasonable doubt that the defendant did injure the person physically and that their intention was to do so or that the act was due to reckless actions. They must show no consent was given, the defendant did not act in self-defence, and the harm was not the result of an accident.
What defences are used for an assault charge in these cases? You can choose to defend yourself or to gain the support of a lawyer. It is certainly worth getting advice from a lawyer before proceeding, as self-defence is extremely difficult. You may be able to use some of the following defences:
a. Self-protection or defending yourself or protecting another person.
c. It was an accident, and you have no intention of causing harm.
d. You were under duress. Duress means that someone is threatening, coercing, or compelling you to act against your wishes.
e. You were in a position where you believed that you or someone else was facing immediate impending danger, so you had to act.
In Australia, charges of assault are serious. It is an offence, and even if you believe the matter is minor, the charges are not taken lightly. Assault offences differ depending on the seriousness of the incident. There is a range of resulting penalties. Striking, touching, moving, applying force without consent, threatening, and causing bodily injury are all forms of assault. The significant thing to remember is that no physical injury has to occur for an assault charge against someone. If a person feels threatened and fears for their safety, assault charges can arise. A criminal law firm will be able to provide you with the best possible advice and support, and legal representation in an assault case may prevent you from serving a jail sentence.
Frequently Asked Questions
- What injuries are “bodily harm’?
A range of injuries will be considered, from minor abrasions to broken bones, bruising, swelling, black eyes, etc.
- What injuries are considered grievous bodily harm?
Again, a broad range of injuries come under the heading of grievous bodily harm, from a broken jaw to severe head injuries. If the injury endangers the person or their life or causes permanent damage to the person, it is considered grievous bodily harm. Assault occasioning bodily harm is another term utilized.
- What does causation mean?
The word causation is not the same as the intention of the offender. The prosecution does not need to show that the offender intended to cause significant harm but rather that they ’caused” the damage that the victim suffered.