COMMON ASSAULT

A common assault is an offence charged under section 61 of the Crimes Act 1900 (NSW).

Elements of the offence

Section 61 of the Crimes Act 1900 provides:

“Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for 2 years.”

A common assault is an act and not a mere omission to act, by which a person intentionally or recklessly causes another person to fear immediate and unlawful violence.

In order to prove this offence the prosecution must establish the following elements beyond a reasonable doubt:

  1. That the accused caused another person to fear immediate and unlawful violence, or that the accused made physical contact with another person; and
  2. The other person did not consent; and
  3. That the accused’s actions were intentional or reckless.

Behaviour that may constitute the offence

Examples of behaviour that may constitute an intentional common assault if proven beyond a reasonable doubt include:

  • striking another person by punching, slapping, kicking, wrestling or grabbing them
  • a slap or a light blow that does not cause actual pain to the other person
  • striking another person with an object that does not cause injury
  • spitting on another person

The prosecution is not required to establish that there was actual physical contact or force applied to the other person to establish this offence. In this case the prosecution can rely upon a reckless common assault by proving that the accused realised that the other person might fear that he or she would then and there be subjected to immediate and unlawful force but went on and took that risk.

Examples of behaviour that may constitute an assault without physical force being applied include:

  • swinging a fist at another person without striking them
  • throwing an object at another person that misses the target
  • brandishing a weapon with the intent to frighten another person
  • threatening to inflict physical harm towards another person

Defences

Defences that may be raised against this offence include:

  • Arguing that the accused acted in self-defence of their person, their property or another person
  • Arguing that a parent used reasonable force to correct a child’s behaviour
  • Arguing that the accused had no intention to cause fear
  • Arguing that the accused had no reason to apprehend the risk of causing fear
  • Arguing that the alleged complainant did not experience fear
  • Arguing that a reasonable person would not have experienced fear in the circumstances
  • Arguing that the alleged behaviour did not occur or that the allegation is false
  • Arguing that the allegation concerning the accused’s behaviour is exaggerated and cannot be believed
  • Arguing that the physical contact that occurred was accidental

Penalties

A common assault is an offence that is usually dealt with by the Local Court and prosecuted by the police however the Director of Public Prosecutions can elect to have the offence dealt with in the District Court.

This offence carries a maximum penalty of 2 years imprisonment and/or a fine of $5,500.

The penalties for the offence of common assault vary depending on the nature of the assault, the duration, the number of acts constituting the assault, the accused’s subjective circumstances, other acts associated with the conduct making up the assault, the vulnerability of the alleged complainant and other factors.

Depending on the seriousness of the conduct and the accused’s subjective circumstances, sentences imposed for this offence can include:

  • A section 10 dismissal
  • Conditional Release Order without a conviction
  • Conditional Release Order with a conviction
  • Section 10A (conviction and no further penalty)
  • Fine
  • Community Corrections Order
  • Intensive Corrections Order
  • Sentence of full-time imprisonment

If you have been charged with a common assault, call Karnib & Co Lawyers at any time on 0450503696 or email us on [email protected] to arrange a free consultation. For those who are unable to attend our offices, we offer conferences by telephone, Skype, Zoom and FaceTime anywhere around the world.