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Assault Occasioning Actual Bodily Harm

This article explains the crime of assault occasioning actual bodily harm, including an overview of what the police need to prove, associated penalties and possible defences.

Definition

Assault occasioning or causing actual bodily harm is an offence under section 59 of the Crimes Act 1900 (NSW) and is one of several types of assault charges. The common element is that the charge involves the intentional or reckless use of force or the threat of force against another person without their consent or that they didn’t agree to. Examples of this can include hitting, kicking, pushing, slapping, biting, throwing an object or using a weapon against another person.

What distinguishes the seriousness of each type of assault is whether the assault caused injuries and if so, how severe the injuries were. Common assault, for example, is considered the least serious of the assault offences as it may not necessarily cause harm to the victim. On the other hand, an assault causing bodily harm is considered a more serious offence as the victim has suffered injury as a result of the assault.

To learn more about recognising the differences between each type of assault, please see our dedicated article Types of Assault.

What Does the Prosecution Have To Prove?

In order to be convicted for an assault occasioning actual bodily harm, the prosecution must prove beyond a reasonable doubt that:

  1. You used physical force against someone else; and
  2. You acted intentionally or recklessly, without the other person’s consent;
  3. Your actions did not have a lawful excuse;
  4. Your actions resulted in actual bodily harm, that is an injury.

Not all injuries fall under the meaning of actual bodily harm. While it is usually assessed on a case-by-case basis, it generally involves any injury that isn’t trivial and ‘interferes with the health and comfort of the victim.’ R v Lardner (unrep, 10 September 1998, NSWCCA). Some common examples include scratches, bruises, and lacerations.

Actual bodily harm can also extend to psychological injuries in certain cases where the harm inflicted is serious enough to cause an anxiety or depressive disorder.

Finally, the prosecution doesn’t need to prove that you wanted to cause actual bodily harm. All they need to show is that you were intentionally or recklessly assaulting someone and because of that, the victim received actual bodily harm.

Penalties for Assault Occasioning Actual Bodily Harm

The maximum penalty for assault occasioning bodily harm is five years, or seven years if you committed the offence with other people or against a law enforcement officer.  However, the actual penalty that is imposed will vary depending on a range of factors including the circumstances of the offence, the defendant’s criminal history and other factors set out in 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

For example, unless the prosecution decides otherwise, an assault occasioning actual bodily harm will usually be dealt with in the Local Court. If that happens, the maximum penalty that can be imposed is two years of imprisonment as set out in s1 of the Criminal Procedure Act 1986 (NSW).

It is important to note, that although the offence may result in several years imprisonment, most matters are dealt with using alternative penalties, such as home detention, intensive correction orders or community correction orders or fines.  These alternative penalties depend on the circumstances of the offence, the offender’s history and what is deemed appropriated by the magistrate.  For instance, if this is your first offence of assault causing bodily harm, your penalty will be lighter than if you have committed an assault offence previously.

Defences for Assault Occasioning Actual Bodily Harm

There are several defences that can be used for an assault occasioning actual bodily harm charge. These include:

Self Defence

This defence can be employed if you can show that you were acting in self-defence. To do so, you must be able to show that you were protecting yourself, someone else or your property from a threat. Your response must be reasonable and proportionate to the threat itself.

The Injury Suffered doesn’t Amount to Actual Bodily Harm

An injury that is classifiable as actual bodily harm needs to meet a certain level of seriousness. While the injury doesn’t have to be permanent, it cannot be ‘merely transient or trifling’ [McIntyre v R (2009) 198 A Crim R 549 at [44]. In other words, minor injuries like temporary swelling or redness may not be classifiable as actual bodily harm. 

In essence , if the injuries do not meet the requirements for actual bodily harm, it will provide an opportunity for your lawyers to argue that the charge be changed to the less serious offence of common assault.

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

Duress

If you can prove that you were forced, threatened, or intimidated by someone else to commit the assault, your lawyer can use this as a defence for assault causing bodily harm.

Why BSM Lawyers?

Our highly experienced criminal team understand that being charged with an assault offence is understandably stressful and overwhelming.  Our lawyers can help you with your assault charge, reducing the stress and difficulty of managing the charge on your own.  Our experienced assault lawyers have handled many assault cases and have achieved excellent results.

Our expert criminal lawyers are able to run most court matters without the added expense of a barrister. However, for more serious criminal matters we have a panel of expert barristers we frequently engage.  Our assault lawyers are committed to providing premium legal advice and vigorously advocating for your rights.

Brander Smith McKnight has offices located in Sutherland, Sydney CBD, Parramatta and Wollongong.

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