Guide to Offences of Common Assault and Assault Occasioning Actual Bodily Harm in NSW

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Common assault is the most basic category of assault offences in New South Wales and is contained in section 61 Crimes Act 1900 (NSW) which carries a maximum penalty of 2 years imprisonment.

Although not explicitly defined in the Crimes Act 1900 (NSW), case law has held that any intentional or reckless act causing another person to apprehend immediate and unlawful violence constitutes an assault.

Common assault can be established in two ways, each with distinct elements and seriousness.

Assault without physical force

This form of assault occurs when the accused’s actions, whether intentional or reckless, causes the complainant to fear immediate and unlawful violence. In such cases, physical contact need not occur; rather, it is the apprehension of violence that constitutes the offence.

For example, if an individual raises a hand in a menacing manner, causing another to fear an imminent physical attack, it falls within the category of assault without physical force.

Assault with physical force (Battery)

Assaults involving physical force, commonly referred to as battery, involves the intentional or reckless application of force by the accused to the complainant without their consent.

This can range from a simple touch to a more severe physical altercation. If the application of force results in injuries which is more than merely transient and trifling, the conduct may warrant a charge of a more serious offence, such as assault occasioning actual bodily harm, as contained in section 59 Crimes Act 1900 (NSW).

In addition to the distinction between assault with and without physical force, common assault offences can further be categorized based on the context in which they occur.

Common assault PV t2:

These involve assaults occurring where the accused and the complainant are not in domestic relationship. The prosecution and adjudication of personal violence offences follow standard legal procedures, with the complainant typically providing a written statement to the Police and giving evidence orally during court proceedings.

Common assault DV t2:

In contrast, domestic violence offences involve assaults where the accused and the complainant are in a domestic relationship.

Common assault DV offences are typically accompanied by an apprehended domestic violence order (ADVO), aimed at protecting the victim from further harm.

The legal proceedings in domestic violence cases differ from personal violence offences, with the Complainant typically providing a video statement to the Police, which is played in Court as the evidence in chief during court proceedings, subject to admissibility issues.

Sentencing consideration for assault offences

When sentencing individuals convicted of assault offences, courts in NSW consider various factors, including the nature and severity of the offence, the extent of harm inflicted on the victim, the offender’s moral culpability, and any mitigating or aggravating circumstances.

Notably, courts tend to treat Common assault DV t2 offences as particularly serious, given the inherent power dynamics and potential for ongoing harm within the domestic relationships.

Section 4A Crimes (Sentencing Procedure) Act 1999 (NSW) mandates that courts impose custodial sentences or supervised orders for domestic violence offences unless compelling reasons exist to justify not doing so and the Courts should record such reasons.

This legislative provision underscores the gravity with which the legal system treats instances of domestic violence, reflecting broader societal concerns regarding the safety and well-being of victims within domestic settings.

Moreover, the Director of Public Prosecutions retains discretion in determining whether more serious assault offences, particularly those of a domestic nature, should be prosecuted in the District Courts of NSW.

Recent data compiled by the Judicial Commission of NSW offers insights into the prevalence and sentencing outcomes of common assault offences within the Local Court jurisdiction.

Between October 2019 and September 2023, NSW Local Courts passed sentence on more than 30,000.00 common assault offences, with over 11% resulting in custodial sentences. These statistics underscore the substantial caseload and the judicial system’s efforts to address instances of violence and ensure accountability from offenders.

In light of the potential consequences associated with assault charges, individuals facing such allegations often seek the assistance of common assault lawyers.

When selecting legal representation, several factors come into play, including:

  • the lawyer’s expertise, reputation, experience handling similar cases, and
  • the lawyer’s fee structure, availability.

In conclusion, assault offences in NSW encompass a broad spectrum of conduct, ranging from acts inducing fear of violence to physical altercations resulting in injury.

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