Our client, Dean* was working on a construction site in a Sydney suburb, installing timber framing at height. Suddenly, an argument broke out with another worker.

What started as a heated exchange of words ended with Dean facing two serious charges, including a weapons offence carrying a maximum penalty of 12 years in prison.

The other worker was struck by a nail from Dean’s nail gun and needed treatment. Police arrested Dean at the site shortly after.

A weapon charge of this kind can carry a far more serious maximum penalty than the assault itself. How that charge is dealt with early on by criminal lawyers can shape the entire outcome of a matter.

Assault and weapon charges: Sydney case study

Dean was working with a nail gun at height on a residential building site when a dispute developed with his colleague. The colleague told Dean to leave him alone in blunt terms, and the exchange escalated quickly.

Dean turned and discharged three nails from the gun in the other worker’s direction. Unfortunately, one nail struck the man in the head, causing a laceration. The injured worker left the site and called triple zero, and police attended and arrested Dean shortly afterwards.

The charges

Dean was charged with two offences arising from the incident. The first was assault occasioning actual bodily harm under section 59 of the Crimes Act 1900 (NSW), which carries a maximum penalty of 5 years’ imprisonment.

The second, more serious charge, was using an offensive weapon with intent to commit an indictable offence under section 33B of the Crimes Act 1900 (NSW). This carries a maximum penalty of 12 years’ imprisonment.

That second charge meant Dean was facing a substantially higher penalty than the facts of a single, isolated workplace incident might suggest.

Defending assault and weapon charges

Our criminal defence lawyers focused early on the gap between the two charges laid, in particular the far higher maximum penalty attached to the weapon charge. We identified that the way the incident was originally described in the police facts did not fairly reflect what had actually happened at the site.

Our criminal defence lawyers entered negotiations with police aimed at removing the more serious weapon charge from the matter altogether. Central to those negotiations was the argument that Dean’s actions were reckless rather than a deliberate, targeted attack. We argued this because our client was working at height and some distance from the other worker when he discharged the nail gun in that general direction.

Police agreed to amend the facts to reflect that Dean fired in the other worker’s direction from a distance, rather than aiming directly at him, and to proceed only on the assault occasioning actual bodily harm charge. That recklessness framing was the turning point that allowed the matter to resolve well before any hearing was required.

What is a Conditional Release Order?

A Conditional Release Order lets a court deal with an offence without recording a conviction, provided the person complies with the order’s conditions for a set period. Our fact sheet on Conditional Release Orders in NSW explains how they work and when a court will consider one.

The outcome

Dean was sentenced on the assault occasioning actual bodily harm charge to a Conditional Release Order without conviction for a period of 18 months. The court also made a final Apprehended Domestic Violence Order for 2 years, which included standard non-assault and non-approach conditions.

Removing the weapons charge before any hearing, and securing a non-conviction outcome on the remaining charge, was a significant result given Dean was initially facing a maximum penalty of 12 years. It reflects the value of challenging how police facts characterise an incident before a matter is finalised.

Research from the NSW Bureau of Crime Statistics and Research shows assault occasioning actual bodily harm remains one of the most commonly finalised violence offences in the NSW Local Court. This means how the police facts are framed at an early stage regularly has a significant bearing on the outcome.

Facing a weapons or assault charge from a workplace incident?

An argument at work can escalate quickly, and the charges that follow do not always reflect what actually happened. Getting the police facts right, early, can be the difference between a hearing and a resolved matter.

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Read more of our criminal law case studies.

*We always change the names and other identifiable details in case studies to protect client privacy.

Past results do not guarantee future outcomes. Every case is assessed on its individual merits.

This content is for general information purposes only and does not constitute legal advice. You should seek independent legal advice relevant to your specific circumstances.