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Types of Assault

Assault is a serious criminal offence that involves the intentional application of force or threat of force on another person without their consent. Assault offences are categorised into different types based on the severity and circumstances surrounding the incident. This article provides an overview of the various types of assault, the corresponding penalties and potential defences.

If you are charged with assault, it is important to seek legal advice as soon as possible. The experienced criminal lawyers at Brander Smith McKnight can help you understand the charges against you, advise you on your legal options and help you develop a strong defence or strategy for a guilty plea.

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

Types of Assault

1. Common Assault

Under s61 of the Crimes Act 1900 (NSW), common assault is defined as the intentional or reckless use of force or the threat of force against another person without their consent. This can include hitting, kicking, pushing, slapping, spitting or any other physical contact that causes harm or injury. It can also include threatening behaviour, such as making threats of violence, shouting or verbally abusing someone. Importantly, the assault does not need to result in physical injury to be considered a criminal offence.

For a person to be convicted of common assault, the prosecution is required to establish beyond a reasonable doubt the following elements:

  1. The accused either used physical force against someone else or threatened them with violence in the immediate future;
  2. The accused acted intentionally or recklessly, and without the consent of the other person; and
  3. The accused lacked a lawful justification for their actions.

Penalties for Common Assault

  • Maximum penalty: 2 years imprisonment and/or a fine of $5,500;
  • If the offence is committed in the company of others or against a law enforcement officer, the maximum penalty increases to 3 years imprisonment; and
  • Aggravating factors such as the use of excessive force or premeditation can lead to higher penalties

2. Assault Occasioning Actual Bodily Harm (AOABH)

Assault occasioning actual bodily harm is a criminal offence pursuant to s59 of the Crimes Act 1900 (NSW) and involves intentionally inflicting injuries or physical harm on another person, resulting in more than a trivial injury. AOABH offences can involve acts such as punching, kicking or using a weapon to cause harm.   For a person to be convicted of assault occasioning actual bodily harm the prosecution is required to establish beyond a reasonable doubt the same elements set out above for common assault plus that actual bodily harm was caused by the assault.

Penalties for AOBH

  • Maximum penalty: 5 years imprisonment 
  • If the assault is committed in the company of others or against a law enforcement officer, the maximum penalty increases to 7 years imprisonment
  • Aggravating factors, such as the use of a weapon or prior convictions, can lead to higher penalties

3. Grievous Bodily Harm (GBH)

Grievous bodily harm is defined in s4 of the Crimes Act 1900 (NSW) as “any permanent or serious disfiguring of the person, the destruction of a foetus and any grievous bodily disease.”  Grievous bodily harm does not always include a permanent of life-threatening injury, however it usually must amount to a really serious injury.  What constitutes grievous bodily harm is determined on a case-by-case basis and several factors are considered, including the victims prospects of healing and the type and location of the injury.

In NSW, most GBH charges are dealt with under Sections 33, 35 or 54 of the Crimes Act 1900 (NSW). The prosecution must prove that the defendant intended to cause GBH (Section 33) or acted with reckless disregard for the safety of others (Section 35) or caused GBH by a negligent or unlawful act (Section 54).

There are three main offences involving the infliction of grievous bodily harm, including:

  • Grievous bodily harm with intent.
  • Recklessly causing grievous bodily harm.
  • Causing grievous bodily harm by unlawful or negligent act.

The primary difference between the three listed above is the mental state of the accused at the time of the offence.  Grievous bodily harm can involve a serious injury such as a permanent disfigurement, a broken bone or an infection of a serious disease.

1. Grievous Bodily Harm with Intent

Pursuant to s33(1) of the Crimes Act 1900 (NSW), the prosecution must prove beyond a reasonable doubt that the defendant had the specific intention to cause GBH.

2. Recklessly Causing Grievous Bodily Harm

Pursuant to s35(2) of the Crimes Act 1900 (NSW), the prosecution does not have to prove that the defendant intended to cause GBH, but rather that the defendant acted in a manner that showed a reckless disregard for the potential harm they could cause.

3. Causing Grievous Bodily Harm by Unlawful or Negligent Act

Pursuant to s54 of the Crimes Act 1900 (NSW), the prosecution does not have to prove that the defendant intended to cause harm, but instead, it must be proven that the defendant acted unlawfully or negligently and that this resulted in GBH to another person.

Penalties for Grievous Bodily Harm

OffenceMaximum prison sentence
Wounding or grievous bodily harm with intent25 years
Reckless infliction of grievous bodily harm10 years
Reckless infliction of grievous bodily harm in company14 years
Causing dog to inflict grievous bodily harm10 years
Causing grievous bodily harm by unlawful or negligent act2 years

Defences for Assault

Depending on the type of assault, there are a range of possible defences available. These include:

  • Self-defence: The accused acted to protect themselves from imminent harm;
  • Lack of intent: The accused did not have the intention to cause harm or fear to the victim (not relevant for Reckless or Negligent GBH);
  • Accident: The assault was made by way of a genuine accident;
  • Age: If the accused is under the age of 14, it is possible to argue that they were not old enough or mature enough to comprehend the gravity of their conduct.  For further information, see the dedicated articles, of both Children and the Criminal Justice System and the Young Offenders Act and the Protected Admission Scheme.
  • Consent: If the victim consented to the conduct that is alleged to be assault, this can be a defence. However, this defence can be difficult to prove, and there are limitations on when consent will be a valid defence, sports such as boxing are an example;
  • Duress: The defendant was forced to commit the assault under threats or coercion;  For further information, see our dedicated article on Duress
  • Lawful correction of a child pursuant to section 61AA of the Crimes Act 1900 (NSW). For this defence to be relied upon, the accused must demonstrate that the force was intended as a form of punishment for the child, that the force was administered by a parent or an individual in a parental role, and that the force was reasonable taking into consideration the child’s health, age, maturity and nature of the misbehaviour. This defence does not apply in matters where force was applied to the child’s head or neck (except in cases where the force was insignificant or trivial), or if the harm caused to the child will last for more than a brief period. 

Why BSM Lawyers?

The expert criminal team at Brander Smith McKnight are highly experienced in all types of assault offences.  We regularly appear in the Local, District, Supreme and Children’s Courts and achieve excellent results for our clients.  We listen to you carefully and meticulously examine representations made by the police to determine the best possible defence strategies.  We will usually represent you without a barrister to save you expense.  However, for particularly serious matters we have a panel of barristers that we regularly use.

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

We are conveniently located in Sydney, Parramatta, Sydney CBD and Wollongong.

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