In New South Wales, the Crimes Act 1900 contains a range of assault offences. These range from common assault to assault causing death. This page outlines the assault offences that exist in New South Wales, the penalties that apply to them and the processes for pleading guilty and not guilty to an assault offence.
Many assault charges are indictable offences that can be heard summarily. This means that they can be finalised in the lower courts (Local Court and Children’s Court) where the prosecution agrees to this. In particularly serious instances, these offences will be committed to a higher court for finalisation on indictment. Higher maximum penalties apply when a matter is dealt with in a higher court.
Some assault matters can only be dealt with on indictment (in a higher court). Examples of these offences are assault causing death and assault causing death when intoxicated.
What is an assault?
An assault occurs when a person makes physical contact with another person, or threatens to do so, without the other person’s consent. An assault may consist of a blow such as a slap or a punch. It may also consist of a threat to make contact such as raising a fist to another person. An assault may also consist of indirect contact – such as throwing an object at a person so that it strikes them or so that they think it is going to strike them.
Common assault is an offence under section 61 of the Crimes Act 1900. Common assault charges are generally dealt with in the Local Court; however, these matters can be dealt with in the District Court if the prosecution elects for this.
Common assault is an assault that does not result in actual bodily harm. It carries a maximum penalty of two years imprisonment.
Assault occasioning actual bodily harm
Assault occasioning actual bodily harm (AOBH) is an offence under section 59 of the Crimes Act 1900. It carries a maximum penalty of five years imprisonment, or seven years imprisonment if the offence is committed in company with one or more others.
A person may be found to have sustained actual bodily harm if they have suffered any hurt or injury that interferes with their health or comfort. It may also be a recognized psychiatric injury such as an anxiety disorder.
Grievous bodily harm
The Crimes Act 1900 contains several offences involving causing grievous bodily harm. Grievous bodily harm is a really serious injury that requires extensive treatment. Examples of grievous bodily harm are broken bones and third-degree burns. The penalties for these offences vary dramatically depending on the mental state of the offender.
Grievous bodily harm offences in New South Wales include:
- Intentionally causing grievous bodily harm or wounding (section 33, Crimes Act 1900). This carries a maximum penalty of 25 years imprisonment;
- Recklessly causing grievous bodily harm or wounding (section 35, Crimes Act 1900). This carries a maximum penalty of 14 years imprisonment;
- Causing grievous bodily harm through an unlawful or negligent act or omission (section 54 of the Crimes Act 1900). This carries a maximum penalty of two years imprisonment.
Assault causing death
Under section 25A of the Crimes Act 1900, a person who commits an assault that causes the death of the victim is liable to up to 20 years imprisonment. An adult who commits an assault causing death while intoxicated is liable to a maximum penalty of 25 years imprisonment.
Pleading guilty to assault offences
If a person is charged with an assault offence in New South Wales and wants to plead guilty, the process they must go through will depend on whether the matter is being dealt with summarily or on indictment.
In the Magistrates Court, a person may plead guilty on the first occasion they attend court. However, in serious matters it is usually advisable to adjourn the case to allow yourself time to get thorough legal advice and to gather supporting material. Supporting material such as character references and evidence of any steps you have taken to address the causes of your offending can be used to persuade the court to deal with the charge leniently in consideration of mitigating factors and your attempts to take responsibility for your behaviour.
In the higher courts, a matter must go through a number of preliminary mentions before it can be finalised even where the accused is pleading guilty. Such a matter must go through a committal process in the Local Court, where the court reviews the prosecution case and decides whether the evidence is sufficient for the matter to be committed to a higher court.
If the matter is committed to a higher court, it will then be set down for a plea hearing. On this date, the court will hear submissions by the defence and prosecution and then decide on the appropriate penalty.
Pleading not guilty to assault offences
If a person is charged with an assault offence in New South Wales and wants to plead not guilty, they should always seek specialist legal advice.
A lawyer will obtain the brief of evidence from the prosecution and advise of any viable legal defences and of the strength of the case. They will also be able to advise of the likely penalty range if you are found guilty (given the circumstances of the alleged offence and your criminal history).
Defences that can be relied on in response to assault offences include the following:
- Self-defence under section 418 of the Crimes Act 1900, if the offence was committed in defence of oneself or of another person;
- Mental impairment under section 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, if the offence was committed when the accused was no mentally impaired that they did not know the nature of the act or did not know that the act was wrong;
- Lawful excuse, if the alleged offence came about in a context where physical contact was to be expected such as while playing a contact sport or while undergoing a medical procedure.
- Lawful correction, if the alleged assault occurred in the context of a parent disciplining a child so long as the level of force used was reasonable in the circumstances.
A person charged with assault may also rely on a factual defence, such as an alibi.
If you require legal advice or representation in any legal matter, please contact Taylor Rose.