Common assault is the most basic form of an assault offence in NSW. It is contained in section 61 Crimes Act 1900 (NSW) which states that the maximum penalty for the offence is 2 years imprisonment.

Common assault is not defined in the statute, but the Court have held that an assault is any act by which the accused intentionally, or recklessly, causes another person to apprehend immediate and unlawful violence. A Common assault NSW can be made out in two ways:

1. Assault where no physical force is applied

There are four elements which must be proven beyond a reasonable doubt for an assault with no physical force. They are:

1. An act by the accused which intentionally, or recklessly, causes another person (the complainant) to apprehend immediate and unlawful violence, and 
2. That such conduct was without the consent of the complainant, and
3. That such conduct was intentional or reckless, and
4. That such conduct be without lawful excuse.

An example of assault with no physical force is if a person raises their hand at the complainant in a menacing fashion and thereby causes the complainant to fear that they are about to be struck, then the law says that the person has assaulted the complainant.

2. Assault where physical force is applied

There are four elements which must be proven beyond a reasonable doubt for an assault with physical force (battery). They are:

1. Any application of force by the accused to the complainant, and
2. That such conduct was without the consent of the complainant, and
3. That such conduct was intentional or reckless, and
4. That such conduct be without lawful excuse.

An assault where force is applied which results in injury which is more than merely transient and trifling may lead to a prosecution for the offence of assault occasioning actual bodily harm.

Section 59 Crimes Act 1900 (NSW) creates the offence of assault occasioning actual bodily harm which states:

(1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years.

If a person commits the offence in company of another person, then the maximum penalty is imprisonment for seven years.

A common assault offence can be charged by the Police in two different circumstances:

– As a personal violence offence: Common assault PV t2 or

– As a domestic violence offence: Common assault DV t2

If the offence is charged as a Common assault DV t2, it will be accompanied by an apprehended domestic violence order (ADVO) application which will be determined by the Court after determination of the criminal charge.

The manner in which the matter would proceed before the Local Courts and the method of adducing evidence from the complainant are also different between the offence being domestic violence related or personal violence related.

In personal violence related assaults, the complainant provides a written statement asserting the allegation to the Police and when the matter proceeds to hearing, the complainant gives their evidence in chief viva voce (orally).

In domestic violence related assaults, the complainant provides a video statement to the Police asserting the allegation and subject to any admissibility issues, the video is played in Court as the complainant’s evidence in chief.

Sentence consideration for assault offences also vary with the Courts treating domestic violence assaults as a more serious class of offence than personal violence offences. Section 4A Crimes (Sentencing Procedure) Act 1999 (NSW) obligates the Courts to impose custodial sentences or supervised orders when passing sentences for domestic violence offences unless the court orders otherwise and provides reasons for not ordering an unsupervised or custodial sentence.

The Director of Public Prosecution has a discretion to elect that such offences be prosecuted in the District Courts of NSW.

Sentence statistics

Data collected by the Judicial commission of New South Wales show that between October 2019 to September 2023, the NSW Local Courts passed sentence on 30,882 counts of common assault with more than 11% resulting in custodial sentences.

When charged with an assault offence, accused persons usually search for a defence lawyer near me. The following factors may be considered by individuals when considering retaining a lawyer:

1. The lawyer’s expertise,
2. The lawyer’s reputation,
3. The lawyer’s experience with dealing with like matters,
4. The lawyer’s fees,
5. The lawyer’s availability,
6. Whether the lawyer offers a consultation where the accused can get to know the lawyers.