Keith Mack
Common law assault in Victoria is a criminal offence that carries a maximum penalty of 5 years imprisonment. It is committed when a person makes unlawful contact with another person or threatens to do so. Common law assault is a more serious charge than common assault, which is governed by the Summary Offences Act 1966 and carries a maximum penalty of 3 months imprisonment. The prosecution must prove beyond reasonable doubt that the accused intentionally or recklessly applied force to the victim's body. If you are facing charges for common law assault in Victoria, it is important to engage a lawyer who understands the nuances of this area of law to secure the best outcome.
| Characteristics | Values |
|---|---|
| Penalty | Maximum of 5 years imprisonment or a fine of 600 penalty units |
| Common assault penalty | Maximum of 3 months imprisonment or a fine of 15 penalty units |
| Prosecution requirements | Must prove the case beyond a reasonable doubt |
| Common assault definition | Intentionally or recklessly applying force to another person or causing them to fear that such force will be applied |
| Common law assault definition | Making unlawful contact with another person or threatening to do so |
| Examples | Pushing, punching, slapping, raising a fist, throwing an object at a group of people |
| Jurisdiction | County Court or domestic violence cases in the magistrates court |
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What You'll Learn
Common assault vs common law assault
In Victoria, most assault offences are provided for under the Crimes Act 1958, while some are also provided for under the Summary Offences Act. The seriousness of an assault usually determines which law police decide to prosecute under.
Common assault, or unlawful assault, is generally considered the least serious assault offence and is usually dealt with summarily in the Magistrates Court or Children’s Court. It is committed if a person assaults or beats another person. The maximum penalty for common assault is a fine of 15 penalty units or three months' imprisonment.
Common law assault, on the other hand, carries a maximum penalty of five years' imprisonment or a maximum fine of 600 penalty units. The base offence for common law assault is liable to level 6 imprisonment, with a maximum penalty of 5 years imprisonment. Common law assault is committed by a person who makes unlawful contact with another person or threatens to do so. The prosecution must prove several elements beyond a reasonable doubt to establish common law assault:
- The accused applied force to the alleged victim's body
- The application of force was intentional or reckless
- The application of force was without lawful justification or excuse
Common assault and common law assault share similar elements, but common assault is created by parliament and is referred to in section 23 of the Summary Offences Act 1966 of the legislation. Common law assault, on the other hand, is not created by parliament but is referred to in the legislation in Victoria at section 320 of the Crimes Act 1958.
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Penalties for common law assault
Common law assault in Victoria is committed when a person makes unlawful contact with another person or threatens to do so. This type of assault does not necessarily require physical contact but can include actions that create a fear of imminent violence.
The penalty for common law assault in Victoria is a maximum of 5 years imprisonment or a maximum fine of 600 penalty units. The base offence for common law assault is liable to level 6 imprisonment, which is a maximum penalty of 5 years imprisonment. However, the maximum term of imprisonment can increase to 10 years if the assault is committed against a police officer or protective services officer with an offensive weapon readily available.
Between July 2018 and June 2023, 74% of charges in higher courts resulted in imprisonment, with a median term of 6 months imprisonment. Other sentencing options included community correction orders and fines.
It is important to distinguish between common law assault and common assault (also known as unlawful assault). Common assault is a summary offence and is considered the least serious of the assault offences. It occurs when someone intentionally or recklessly applies force to another person or causes them to fear that such force will be applied. The maximum penalty for common assault is 3 months imprisonment or a fine of 15 penalty units.
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Common assault penalties
Common assault, also known as unlawful assault, occurs when someone intentionally or recklessly applies force to another person or causes them to fear that such force will be applied. This may include acts that do not involve physical contact, such as raising a fist at someone. The offence is criminalised under section 23 of the Summary Offences Act 1966, which defines common assault as "unlawfully assaulting" another person.
The maximum penalty for common assault in Victoria is three months' imprisonment or a fine of 15 penalty units, which is currently $2963.85. However, a court may impose a non-custodial sentence. Between July 2018 and June 2023, 74% of charges resulted in imprisonment, with a median term of 6 months. Other sentencing options included community correction orders and fines.
It is important to distinguish common assault from common law assault, which is a more serious and indictable charge with a significantly higher maximum penalty of up to 5 years' imprisonment. The penalty for common law assault is specified in section 320 of the Crimes Act 1958, under the title "common assault", but this refers to a distinct offence under common law. Common law assault is committed by a person who makes unlawful contact with another person or threatens to do so. The prosecution must prove beyond a reasonable doubt that the accused applied force to the victim's body, that the application of force was intentional or reckless, and that it was without lawful justification or excuse.
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Defences against common law assault
In the case of aggravated assault, which is a summary offence in Victoria, the prosecution must be able to prove beyond a reasonable doubt that the elements of the offence have been satisfied, and no legal defence can be relied upon. Aggravated assault includes assault against a child under 14 or a woman, and assaults involving multiple offenders, kicking, or the use of a weapon.
In the case of unlawful assault, a common defence is if the accused was defending themselves. For example, if the assault was not intentional or foreseeable, it may not be considered unlawful assault.
It is important to note that the specific defences available may vary depending on the circumstances of each case, and it is always advisable to seek legal advice from a qualified lawyer.
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Common law assault charges
Common law assault is a more serious charge than common assault, with a significantly higher maximum penalty. In Victoria, common assault is found in the Summary Offences Act 1966, whereas common law assault is referred to in the Crimes Act 1958. Common assault, also known as unlawful assault, occurs when someone intentionally or recklessly applies force to another person or causes them to fear that such force will be applied. This can include physical contact, such as pushing, punching, or slapping, or acts without physical contact, such as raising a fist at someone.
The legal definition of common law assault is making unlawful contact with another person or threatening to do so. For an accused to be found guilty of common assault, the prosecution must prove beyond a reasonable doubt that the accused applied force to the complainant's body, that the application of force was intentional or reckless, and that it was without lawful justification or excuse. Common law assault carries a maximum penalty of 5 years imprisonment or a fine of 600 penalty units.
It is important to note that the penalty for common law assault is specified in the Crimes Act 1958, but this refers to a distinct offence under the common law. Common assault is a summary offence and is the least serious of all assault charges in Victoria. However, if bodily harm or an "injury" is sustained by the complainant, the accused may face charges for a more serious and indictable offence.
If you have been charged with common law assault, it is important to engage a lawyer who understands the nuances between the various assault charges and can advise you on your specific situation. The prosecution will need to establish several elements beyond a reasonable doubt to prove common law assault, and a specialist lawyer will be able to advise you on your defence and the potential sentencing outcomes.
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Frequently asked questions
Common law assault in Victoria is defined as making unlawful contact with another person or threatening to do so. It is a more serious charge than common assault and is an indictable offence.
The maximum penalty for common law assault in Victoria is 5 years imprisonment or a fine of 600 penalty units. However, if the assault is committed against a police officer or protective services officer with an offensive weapon readily available, the maximum term of imprisonment increases to 10 years.
Common assault, also known as unlawful assault, occurs when someone intentionally or recklessly applies force to another person or causes them to fear that such force will be applied. It is governed by section 23 of the Summary Offences Act 1966 and carries a maximum penalty of 3 months imprisonment or a fine of 15 penalty units. Common law assault, on the other hand, is a common law offence with a higher maximum penalty and is an indictable offence.
