Kara Sears
Common assault in Australia is a criminal offence that can result in a maximum penalty of two years imprisonment, although these penalties are usually reserved for the worst offenders. Common assault can include threatening behaviour, attempted physical violence, and minor physical contact, such as a push, punch, or slap. It can also include acts that do not involve physical touch, such as raising a fist towards another person or throwing an object in their direction. The key elements of assault are intent or recklessness, and the victim must have been put in fear of immediate and unlawful violence. The punishment for assault in Australia varies based on the severity of the offense, with aggravated assault carrying more severe penalties and imprisonment being more likely.
| Characteristics | Values |
|---|---|
| Definition | An act that intentionally or recklessly causes another person to apprehend immediate and unlawful violence. |
| Severity | Common assault is categorised as a less severe form of assault. |
| Intent | The perpetrator must have intended to cause fear and/or harm or acted recklessly, knowing their actions could cause harm. |
| Apprehension of Violence | The victim must have been put in fear of immediate and unlawful violence. |
| Physical Contact | Not necessary; even raising a fist towards another person or spitting at them can be considered assault. |
| Defences | Self-defence, duress, mental impairment, etc. |
| Penalties | Maximum penalty of two years' imprisonment, fines, community orders, good behaviour bonds, etc. |
| Aggravated Assault | Assault against law enforcement officers, frontline emergency and health workers carries higher penalties. |
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What You'll Learn
Common assault penalties
In Australia, common assault is the most frequent assault charge and can result from a simple scuffle or argument. It is defined as an act that intentionally or recklessly causes another person to apprehend immediate and unlawful violence. It is important to note that you don't have to make physical contact to commit common assault; even raising your fist towards another person or spitting at them can be considered common assault.
The penalty for common assault in Australia can vary depending on factors such as the state or territory in which it occurs, its severity, the extent of any harm, and the past criminal history of the offender. The maximum penalty for common assault is two years' imprisonment. However, these penalties are typically reserved for the worst offenders. Other penalties that can be imposed include a fine, a Conditional Release Order, or a Community Corrections Order. Under these orders, the offender is required not to commit any further offences for a period. If the offender does commit another offence, they can be resentenced for the original offence and face a harsher penalty.
If an assault took place in circumstances of aggravation, the penalties applied will be more severe, and imprisonment is more likely. For example, if the offence involved the use of a weapon or the threat of a weapon, the charge can be upgraded to aggravated assault occasioning bodily harm, which carries more severe penalties.
It is important to note that each case of assault is unique, and the penalty imposed will depend on the specific circumstances surrounding the offence. Seeking legal representation is advisable to understand your rights and options if facing charges of common assault.
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Self-defence
To raise the defence of self-defence, you need to enter a plea of not guilty. Your matter will then proceed to a hearing or trial, in which you can raise self-defence as the reason for your conduct. The prosecution will then need to prove that you were not acting in self-defence.
Examples of cases where self-defence can be successfully raised include:
- Punching a person who is hitting and punching you to get them to stop
- Walking down an alleyway and tackling a man who is beating and sexually assaulting a woman
- Pushing someone in the chest because they are walking towards you aggressively, yelling, "I'm going to kill you!"
- Telling someone who has just poured petrol around a house not to set it on fire, then pushing them over and grabbing the lighter from their hand
It is important to note that self-defence cannot be used as a defence if the accused applied physical force that resulted, either intentionally or recklessly, in death, and the conduct was done to protect property or prevent criminal trespass.
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Mental impairment
In Australia, assault is defined as an intentional or reckless act that causes another person to fear or apprehend immediate and unlawful violence. It is important to note that physical contact is not necessary for an assault charge; threatening behaviour such as raising a fist or spitting at someone can constitute assault.
Assault charges can vary in severity, from common assault to aggravated assault, each carrying different legal implications and penalties. The maximum penalty for common assault is two years' imprisonment, although this is typically reserved for the worst offenders. Other penalties can include fines or community orders.
The defence of mental impairment can be raised at any time during a trial by either the defence or the prosecution. The accused person must provide evidence, typically in the form of medical reports prepared by experts, to support their claim of mental impairment. The evidence must demonstrate that, at the time of the offence:
- The accused person did not know the nature and quality of their conduct due to their impaired capacity to comprehend cause and effect and understand the characteristics and significance of their surroundings.
- The accused person did not understand that their conduct was wrong, meaning they could not reason with a moderate degree of sense and composure about the wrongness of their actions.
If the defence of mental impairment is successfully established, the person must be found not guilty by reason of mental impairment. The standard of proof required is the balance of probabilities, which means it is more probable than not that the accused person was suffering from a mental impairment when the offence occurred.
It is important to note that the defence of mental impairment does not apply in all cases and may vary across different states or territories in Australia. The specific legal provisions and definitions related to mental impairment as a defence may differ based on the jurisdiction.
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Aggravated assault
In Australia, common assault is the most frequent assault charge and can result from a simple scuffle or argument. Common assault can be committed by threatening another person, or causing minor injuries such as scratches, bruises, or a slap. It can also include spitting on another person or throwing an object at them. The maximum penalty for common assault is two years' imprisonment, although this is usually reserved for the worst offenders.
The penalties for aggravated assault are higher due to the nature of the offence and the offender's criminal history. All aggravated assault offences carry a possible term of imprisonment, with some sentences exceeding ten years. Other sentencing options may be available, such as fines, good behaviour bonds, probation, community correction orders, or a suspended sentence.
It is important to note that assault cases are treated with severity by the court, especially in aggravated circumstances or for repeat offenders. If charged with aggravated assault, seeking legal advice from a criminal lawyer is crucial to understand the prospects of bail, the likely penalty, and whether to contest the charge or plead guilty.
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Sexual assault
In New South Wales, the Crimes Act 1900 sets out a range of sexual offences, including sexual assault, sexual touching, and sexual acts without consent, as well as offences involving children under 16. The age of consent in Australia is 16 years or above, and it is a crime punishable by imprisonment to have sex or engage in any sexual activity with anyone under 16, even if they consent.
Each state and territory in Australia has its own legislation regarding sexual offences and their penalties. For example, in Tasmania, sexual offences against adults include rape, indecent assault, incest, and bestiality, while in South Australia, sexual offences are governed by the Criminal Law Consolidation Act 1935, which includes offences involving lack of consent, such as rape and indecent assault.
The maximum penalties for sexual offences vary depending on the state and the nature of the offence, ranging from 5 to 25 years in prison, with some offences carrying a maximum penalty of life imprisonment.
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Frequently asked questions
Common law assault in Australia involves an intentional or reckless act that causes another person to fear or apprehend immediate violence. It can include threatening behaviour, attempted physical violence, or minor physical contact, such as a shove, punch, or slap. It's important to note that even raising your fist towards someone or spitting at them can be considered assault.
The penalties for common law assault vary depending on the severity of the offence and the offender's criminal history. The maximum penalty is typically two years of imprisonment, but these severe penalties are usually reserved for the worst offenders. Other penalties include fines, community correction orders, good behaviour bonds, probation, or a suspended sentence.
There are several defences that can be raised against common law assault charges. These include self-defence, acting under duress or mental impairment, and defending property. The key consideration is whether the level of force used was reasonable and proportionate to the threat faced.
