In Victoria, there are several different offences involving assault. Each offence is defined differently and carries a different maximum penalty. While most assault offences can be finalised in the Magistrates Court, some assault matters must be committed to a higher court to be dealt with. This page deals with the assault offences that a person in Victoria can be charged with.
Legislation
The Crimes Act 1958 and the Summary Offences Act 1966 both contain assault offences. The offences contained in the Summary Offences Act 1966 can only be dealt with in the lower courts (Magistrates Court and Children’s Court). More serious assault offences are set out in the Crimes Act 1958.
What is an assault?
A person commits an assault if they:
- apply physical force to another person without that person’s consent; or
- cause another person to apprehend the application of physical force without their consent.
An assault can occur without physical contact being made if the victim believes that physical contact is about to be made (for example, because a fist is raised in their direction). The force does not have to be significant and it does not have to cause injury. However, there are specific assault offences that require the victim to have suffered harm.
Types of assault
Under the Summary Offences Act, there are two assault offences.
Common assault
Under section 23, a common assault occurs when a person unlawfully assaults or beats another person. This is punishable by a maximum of three months imprisonment or a fine of 15 penalty units.
Aggravated assault
Under section 24, an assault is aggravated if it occurs under particular circumstances. Aggravated assaults carry longer maximum penalties. An assault is aggravated if it occurs under the following circumstances:
- where the victim is a female or a male who is aged under 14 (maximum penalty of six months imprisonment or a fine of 25 penalty units;
- where it is committed in company with another person (maximum penalty of 12 months imprisonment;
- where it is committed by kicking or with the use of a weapon (maximum penalty of two years imprisonment).
Under the Crimes Act 1958, assaults are dealt with under section 31. The Act also contains other offences involving assault that occur in a sexual context.
Assault
Under section 31 of the Crimes Act 1958, a person commits an indictable offence if they assault or threaten to assault another person. This offence is punishable by a maximum of five years imprisonment.
Sexual assault
Under section 40, a person commits sexual assault if they intentionally touch another person in a sexual way without that person’s consent and without a reasonable belief that the person consents. This offence carries a maximum penalty of 10 years imprisonment.
Assault with intent to commit a sexual offence
Under section 42, a person commits an offence if they intentionally apply force to another person without consent with the intention of engaging in a sexual act with the person without their consent. This offence has a maximum penalty of 15 years imprisonment.
Jurisdiction
Assault offences under the Summary Offences Act will be finalised by a magistrate.
Assault under section 40 of the Crimes Act 1958 may be finalised by a magistrate if the parties agree. When a matter is finalised in a lower court, the maximum penalty that can be imposed is less. A magistrate can impose no more than a term of two years imprisonment for a single offence.
If a person is charged with assault under section 40 of the Crimes Act 1958, the matter may also be committed to a higher court for finalisation. This may occur because the prosecution considers the matter too serious to be dealt with by a magistrate, or because there will be complex legal argument
Sexual assault offences may also be dealt with in the Magistrates Court or in a higher court. However, a charge of assault with intent to commit a sexual offence will be dealt with in the County Court.
Penalties for assault
Victoria does not have a mandatory sentencing regime for assault offences. This means that the judge or magistrates has a wide discretion to impose the penalty that is appropriate in the circumstances.
While all assault offences can attract sentences of imprisonment, the offences contained in the Summary Offences Act can only attract short terms. An indictable assault offence is likely to attract a more severe penalty and the maximum periods of imprisonment for these offences are longer. An assault offence can also be penalized by a non-custodial sentence such as a fine or community corrections order.
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