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Types of Assault

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.

Common Assault

Under Section 61 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:

  • 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.

Assault Occasioning Actual Bodily Harm (AOABH)

Assault occasioning actual bodily harm is a criminal offence pursuant to section 59 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 AOABH offences are more severe than those for common assault due to the increased level of harm caused.

Penalties:

  • 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

Grievous Bodily Harm (GBH)

Grievous Bodily Harm (GBH) is an element of various serious criminal offences that may result in severe penalties. GBH refers to any injury that involves serious harm, such as permanent disfigurement, loss of limbs or life-threatening injuries.

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). This means that even if a person did not intend to cause serious harm, they may still be charged with GBH if their actions showed a disregard for the potential harm they could cause or if the harm was caused by a negligent or unlawful act.

Unlawful or negligent acts leading to GBH

Pursuant to Section 54 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:

  • Maximum penalty: 2 years imprisonment

Recklessly causing GBH

Pursuant to Section 35(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.

Penalties:

  • Maximum penalty: 10 years imprisonment
  • Aggravating factors, such as the use of a weapon, planning the assault or causing severe and long-lasting injuries, can lead to higher penalties

Intent to cause GBH

Pursuant to Section 33(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. 

Penalties:

  • Maximum penalty: 25 years imprisonment

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 article, 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; and
  • Lawful correction of a child pursuant to section 61AA of the Crimes Act 1900 (NSW).

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