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Assault and Aggravated Assault Lawyers
Assault and Aggravated Assault Lawyers
If you’re facing assault charges, contact our assault and violent offences lawyers now. We can help you get the best possible result in court, even getting the prosecution to withdraw or downgrade the charges.
Assault is a class of criminal offence which includes both a threat of, and the actual infliction of, personal violence.[1] The offence may happen without actual touching. It includes an act that intentionally or recklessly causes another to apprehend immediate and unlawful personal violence.[2] A basic assault offence is often called ‘common assault’.[3] In New South Wales, the offence is one at common law although the penalty is prescribed by statute.[4]
The two elements of the offence of assault (in other words, what the police must prove beyond reasonable doubt) are:
- There was a voluntary act by the accused that had the effect of putting the victim in fear; and
- The was a desire to create that fear, though there can be an assault even if the victim does not in fact fear violence.[5]
[1] R v Bacash [1981] VR 923.
[2] Knight v R (1988) 35 A Crim R 314.
[3] Crimes Act 1900 (NSW) s.61.
[4] Crimes Act 1900 (NSW) s.61.
[5] Brady v Schatzel [1911] St R Qd 206.
Battery is the negligent, reckless or intentional touching of another person (other than that which is generally acceptable in the ordinary conduct of daily life) without consent, lawful excuse, or justification.[1]
The two elements of the offence of battery (in other words, what the police must prove beyond reasonable doubt) are:
- There was a voluntary act which directly and immediately results in contact with the victim; and
- The accused intended to apply physical force to the victim without lawful authority or consent.
[1] R v Phillips [1971] ALR 740; (1971) 45 ALJR 467; Collins v Wilcock [1984] 3 All ER 375; Boughey v The Queen (1986) 161 CLR 10.
An aggravated assault is of a more serious nature than a common assault because of some exacerbating circumstance or feature of the assault. An aggravated assault may be accompanied by an intention of a particular kind, for example, the intention to commit another offence[1] or to avoid arrest. It may be an assault committed upon a particular class of person, such as a police officer acting in the execution of his or her duty; or committed on vulnerable individuals, such as persons over 60 years; or persons reliant on a wheelchair, guide dog or remedial device.
[1] Crimes Act 1900 (NSW) s.58.
Assault occasioning actual bodily harm
In the New South Wales assault occasioning actual bodily harm (‘AOABH’) is an offence under Section 59 of the Crimes Act 1900 (NSW). A person convicted of this offence is liable to imprisonment for five years.
Actual bodily harm is any bodily injury that interferes with the health or comfort of a person.[1] Bodily harm need not be a permanent injury but must be more than merely transitory or trifling.[2] The mere sensation of pain is insufficient to establish ‘actual bodily harm’.[3] The phrase ‘actual bodily harm’ is capable of including psychiatric injury but does not include emotions such as fear or panic nor states of mind that were not themselves evidence of some identifiable clinical condition.[4]
To establish this offence, it is not necessary for the prosecution to prove specific intent to cause actual bodily harm.[5] It is sufficient if the accused intentionally or recklessly assaults the victim and actual bodily harm results.[6]
[1] Crimes Act 1900 (NSW) s.59 ‘Assault occasioning actual bodily harm’; Coulter v R (1988) 164 CLR 350; 76 ALR 365; [1988] HCA 3 (‘actual bodily injury’).
[2] R v Brown (1994) 1 AC 212; [1993] 2 All ER 75.
[3] Scatchard v R (1987) 27 A Crim R 136.
[4] R v Chan-Fook [1994] 1 WLR 691; R v Lardner (NSWCCA, 10 September 1998, unreported, BC9804715); 5(9) Crim LN [900].
[5] Coulter v R (1988) 164 CLR 350; 76 ALR 365; [1988] HCA 3.
[6] R v Williams (1990) 50 A Crim R 213.
Examples of AOABH include punching someone in the face with a closed fist. A single punch is sufficient, and the actual bodily harm can include bruises, scratches, cuts, grazes and/or swelling of the victim’s face because of the punch.
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Recklessly Causing Grievous Bodily Harm Or Wounding
In the New South Wales (‘NSW’) reckless causing grievous bodily harm (‘GBH’) or wounding is an offence under Section 35 of the Crimes Act 1900 (NSW). A person convicted of GBH is liable to imprisonment for 10 years. A person convicted of wounding is liable to imprisonment for seven years.
Grievous bodily harm is bodily injury of a really serious kind.[1] There is no fixed meaning for the expression at common law and its meaning should be determined by a jury in accordance with the ordinary current usage of the words.[2] GBH may include any permanent or serious disfiguring of the person.[3] The killing of a foetus can amount to the infliction of GBH to the mother.[4] Further, the term GBH now encompasses ‘grievous bodily disease’.[5]
[1] R v Sergi [1974] VR 1; R v Blevins (1988) 48 SASR 65.
[2] Director of Public Prosecutions (Vic) v Miller [1951] VLR 346; R v Perks (1986) 41 SASR 335; 20 A Crim R 201.
[3] Crimes Act 1900 (NSW) s.4.
[4] R v King [2003] NSWCCA 399.
[5] Crimes Act 1900 (NSW) s.4.
Examples of GBH include injuries that cause a lot of bleeding, serious bone fractures, and transmitting a disease to a complainant.
Wounding is to cause bodily injury to a person by cutting, piercing, breaking, or tearing the outer and inner skin.[1] The continuity of the whole skin must be severed, not merely that of the cuticle or upper skin. The skin severed need not, however, be external. It is not sufficient to prove merely that a flow of blood was caused unless there is evidence to show where the blood came from.[2]
[1] Vallance v R (1961) 108 CLR 56; [1961] HCA 42.
[2] Devine v R [1982] Tas R 155; (1982) 8 A Crim R 45.
Common examples of wounding include striking at a person with a fist or slapping a person cutting the skin, throwing an object at another person which results in cutting the skin, or knifing someone.
Differences Between Aggravating Circumstances, Aggravating Factors And Circumstances Of Aggravation
An aspect of the commission of an offence which makes the criminal conduct, and, therefore, the likely sentence, more serious but does not affect the maximum penalty that can be imposed. For example, the fact that an offender was affected by alcohol or drugs may sometimes be regarded as an aggravating circumstance.[1] Aggravating circumstances in this sense may be found as a fact by a sentencing court if proved beyond reasonable doubt.[2] A feature of, or surrounding, the commission of an offence, often described as a ‘circumstance of aggravation’, that makes the offence more serious and therefore makes the accused liable on conviction to a greater maximum penalty.[3] When a house is broken into at night, or someone who commits a robbery is in company or armed with a weapon, these are circumstances of aggravation which increase the maximum penalty for the offence. For a circumstance of aggravation which increases the maximum penalty to be relied upon at sentencing, it must be pleaded in the indictment and proved beyond reasonable doubt.[4]
[1] Director of Public Prosecutions (Vic) v Arvanitidis [2008] VSCA 189.
[2] R v Olbrich (1999) 199 CLR 270; 166 ALR 330; [1999] HCA 54.
[3] Crimes Act 1900 (NSW) s.105A.
[4] R v De Simoni (1981) 147 CLR 383; 35 ALR 265; [1981] HCA 31.
A feature of an offence which increases the culpability of the offender. This is some aspect of the commission of an offence which the sentencing court regards as making the criminal behaviour more serious and, therefore, as likely to increase the sentence that might be imposed. A number of aggravating factors are set out in Crimes (Sentencing Procedure) Act 1999 (NSW) s.21A(2). An aggravating factor is not the same thing as a circumstance of aggravation. The latter increases the maximum available penalty for the offence.
A feature of or surrounding the commission of a criminal offence which, if proved, makes the offence more serious and increases the statutory maximum penalty available on conviction.[5] For a circumstance of aggravation to be relied upon at sentencing it must be pleaded and proved, either by trial or a plea of guilty.[6] A circumstance of aggravation differs from more general terms such as ‘aggravating circumstances’, ‘aggravating factors’ or ‘aggravating features’ of an offence. Those expressions refer to some aspect of the criminal conduct in a particular case which is regarded as exacerbating the offence and likely to increase the penalty which might be imposed, but which does not alter the maximum available penalty.
[5] Crimes Act 1900 (NSW) s.105A.
[6] R v De Simoni (1981) 147 CLR 383; 35 ALR 265; [1981] HCA 31.
Assault Causing Death
In New South Wales assault causing death is an offence under Section 25A of the Crimes Act 1900 (NSW). A person convicted of this offence is liable to imprisonment for 20 years.
An assault causes the death of a person whether the person is killed because of the injuries received directly from the assault or from hitting the ground or an object because of the assault.
The media often refer to this offence as ‘the coward punch’, ‘king hit’, or ‘one-punch attack’ because the situation often involves an innocent victim suddenly, and without any apparent reason, being punched to the head, causing the victim to strike the pavement resulting in fatal injuries.
It is not necessary for the prosecution to prove that the death was reasonably foreseeable. However, the prosecution must prove the below three elements of the offence:
- The person assaults another person by intentionally hitting the other person with any part of the person’s body or with an object held by the person, and
- The assault is not authorised or excused by law, and
- The assault causes the death of the other person.
A feature of or surrounding the commission of a criminal offence which, if proved, makes the offence more serious and increases the statutory maximum penalty available on conviction.[5] For a circumstance of aggravation to be relied upon at sentencing it must be pleaded and proved, either by trial or a plea of guilty.[6] A circumstance of aggravation differs from more general terms such as ‘aggravating circumstances’, ‘aggravating factors’ or ‘aggravating features’ of an offence. Those expressions refer to some aspect of the criminal conduct in a particular case which is regarded as exacerbating the offence and likely to increase the penalty which might be imposed, but which does not alter the maximum available penalty.
[5] Crimes Act 1900 (NSW) s.105A.
[6] R v De Simoni (1981) 147 CLR 383; 35 ALR 265; [1981] HCA 31.
Sexual Assault
In New South Wales, sexual assault is an offence under Sections 61I, 61J and 61JA of the Crimes Act 1900 (NSW). A person convicted of this offence is liable to imprisonment for 14 years. However, for aggravated sexual assault, the maximum term is up to 20 years.
Sexual assault was once referred to as the common law offence of rape. However, this was abolished in 1981. It was replaced by sexual assault offences set out in the following sections: 61I, 61J and 61JA of the Crimes Act 1900 (NSW). This was to ensure that all sexual offences were covered appropriately.
The offence of sexual assault includes touching, sexual assault, and assault with the intention to rape.
Sexual assault includes having sexual intercourse with another without their consent. The offender must know that the other does not consent. Go to this page to read further on sexual assault and consent. Sexual assault carries a penalty of 14 years imprisonment.
Aggravated Sexual Assault
Aggravated sexual assault falls under Section 61J of the Crimes Act 1900 (NSW). It carries a maximum penalty of imprisonment of 20 years.
For someone to commit the offence of aggravated sexual assault, one of the following must occur:
- The offender inflicted, or threatened to inflict, physical bodily harm on the victim, or on another person nearby or,
- They threatened to inflict serious bodily harm on the victim or another nearby or,
- The offender broke into the property with the intention to commit the assault or,
- The assault took place within the company of another person or,
- They have authority over the victim,
- The victim was under 16 at the time of the assault or,
- The victim suffers from a physical disability or cognitive impairment or,
- Victim’s liberty was restricted after the assault.
Before a trial, police usually provide evidence that the defendant was likely to have committed the assault. Evidence might be in the form of DNA results, victim or witness statements, CCTV footage etc.
For a sexual assault charge, the prosecution must prove the following criteria beyond a reasonable doubt.
Sexual Intercourse took place:
The alleged offender had sexual intercourse with the victim at the time and place defined. However, the Crimes Act explains that sexual intercourse does not only include penetration by a person’s body party. Additionally, it includes the penetration by objects manipulated by another person and oral sex.
Lack of consent:
The prosecution must prove that the victim did not consent to the sexual intercourse. Consent must be ‘freely and voluntary given by both parties, every time. Consent can be given verbally or via body language.
However, consent can’t be given in the following situations:
If the victim is sleep or unconscious,
- The victim is intoxicated by drugs or alcohol,
- The victim can’t consent due to their age or intellectual capacity,
- If the alleged offender intimidates or threatens the victim to consent,
- The victim is unlawfully detained,
- The alleged offender is in a position of trust.
Awareness of lack of consent:
Another key component is that the prosecution must prove that:
- The alleged offender knew that the other person did not consent or,
- Was reckless in regards to consent or,
- The offender had no reasonable grounds to believe the victim consented to the act.
To determine the above, the prosecution will analyse the offenders state of mind at the time of the offence. Additionally, they will look at any steps taken to determine whether consent was given.
In NSW, all criminal matters begin in the Local Court. However, the District Court will finalise all sexual assault cases.
Assault Charge Defences
Duress is a particular form of the defence of necessity available at common law where an accused performed actions because of threats of death or really serious injury to the person, or to family members, being threats of such a nature that a person of ordinary firmness and strength of will would have yielded to them.[1]
It is not available as a defence to murder.[2]
If there is evidence to suggest duress, the Crown must prove that the accused acted voluntarily, and must eliminate any reasonable possibility that the accused acted under duress. Duress will not be found if the accused had a reasonable opportunity to assert his or her will, or to render the threats ineffective.[3]
Duress may be relevant in sentencing.[4]
Duress is also referred to as ‘compulsion’ in some jurisdictions.
[1] R v Hurley [1967] VR 526; R v Abusafiah (1991) 24 NSWLR 531; 56 A Crim R 424.
[2] DPP for Northern Ireland v Lynch [1975] AC 653; R v McConnell [1977] 1 NSWLR 714.
[3] R v Lawrence [1980] 1 NSWLR 122; (1980) 32 ALR 72.
[4] Crimes (Sentencing Procedure) Act 1999 (NSW) s.21A(3)(d).
A defence at common law involving a plea by a person that he or she was compelled by a threat or danger to commit the crime charged. The threat or danger must have been of such a nature as to exert immense pressure on the person because of its imminence, suddenness, or gravity; the person must have reasonably believed that he or she was placed in imminent peril; and the acts done must not have been out of proportion to the peril faced.[1]
Under statute necessity (or sudden emergency) is an available defence.[2] However, the defence of necessity is applicable for all offences except murder.[3]
[1] R v Loughnan [1981] VR 443; R v White (1987) 9 NSWLR 427.
[2] Criminal Code (Cth) s.10.3.
[3] R v Loughnan [1981] VR 443; R v Dudley (1884) 14 QBD 273; [1881-85] All ER Rep 61; R v Howe [1987] AC 417; [1987] 1 All ER 771.
A complete defence to a criminal charge whereby the accused’s conduct which would otherwise be unlawful is excused on the basis that the accused was compelled to act as he or she did in the defence of self or another (and in New South Wales (‘NSW)’, property[1]). The actions used in defence must be reasonable in the circumstances. Once the accused raises self-defence the onus is on the Crown to disprove the defence beyond reasonable doubt. In NSW, where death is caused by excessive force used in self-defence, the offence may be reduced from murder to manslaughter.[2]
[1] Crimes Act 1900 (NSW) s.418.
[2] Crimes Act 1900 (NSW) s.421.
Reasonable and moderate force applied to a child by a parent, a person standing in place of a parent, or a schoolteacher for the purpose of chastising the child. Such force will not amount to an assault at common law or under statute.[1] However, New South Wales has now either banned corporal punishment in schools or repealed provisions allowing it.[2] This defence is sometimes known as ‘reasonable chastisement’ or ‘corporal punishment’.
[1] R v Terry [1955] VLR 114; Crimes Act 1900 (NSW) s.61AA.
[2] Education Act 1990 (NSW) ss.35(2A), 47(h).
How can an Assault Lawyer help me?
If you seek representation from our top criminal lawyers, you will be receiving the best legal assistance in Sydney. Our lawyers can:
- Work with you to build a criminal defence strategy for your case so you get the best outcome,
- Liaise with the police, prosecution, and court for you,
- Study your assault charges and the evidence relating to your case,
- Collect evidence by interviewing any relevant witnesses, your family/friends, experts such as doctors or therapists,
- Gather all official records and documents,
- Help you apply for bail,
- Represent you in any court/hearings,
- And finally, create a defence strategy personalised for your particular assault case.
Read more here.
How we Can Help
O’Brien Criminal & Civil Solicitors is a full-service criminal defence law firm meaning that we provide legal advice on both criminal and civil law. After the completion of your criminal case, we can continue to represent you in your civil matter (if one exists). We have represented many clients in their criminal matters and then proceeded to assist them in making a civil claim against the police for unlawful arrest and false imprisonment, or suing a publisher for defamation.
Your first consultation with one of our criminal lawyers is free. This is your opportunity to speak to us about your case and for us to discuss with you what your options are. If you choose to proceed with our services we will provide you with a cost agreement that sets out your legal fees. O’Brien Criminal and Civil Solicitors provides cost-effective and professional legal advice compared with other law firms. In some instances, we offer reduced fees or pro bono services at the discretion of our Principal. We can also assist you in applying for Legal Aid if you are eligible. Speak to us if you have concerns regarding your ability to pay your legal fees and we can discuss the possibility of accommodating your circumstances.
Our criminal lawyers have handled cases in courts across NSW at Local Courts, District Courts and the NSW Court of Criminal Appeal. They have a wealth of experience in assisting clients with bail applications, trials, sentencing hearings and appeals to name a few.
Our team includes Accredited Specialists in Criminal Law.
Specialist Accreditation is a structured peer to peer assessment process enabling legal practitioners to be recognised for their expertise. To be accredited specialists must pass a series of meticulous assessments on both legal knowledge and its application in practice. To retain their accreditation specialists must undertake significant additional professional development in their area of expertise each year.
O’Brien Criminal and Civil Solicitors utilises a trauma-informed lawyering approach when interacting with our clients. We understand that you have dealt with traumatic events and that engaging with authorities and courts is a stressful experience that might re-traumatise you. For this reason we are sensitive to your mental and emotional needs and will assist you in an appropriate manner. Read more about our thoughts on trauma-informed lawyering.
