Assault Offences
The Crimes Act 1900 (NSW) identifies that an assault is any act by which a person intentionally, or recklessly, causes another person to apprehend immediate and unlawful violence. Despite common misconception, assault does not always require physical contact, but rather, a fear of immediate violence.
There is a range of offences under the general term of ‘assault’.
Assault offences can include:
Common assault by touch (section 61),
Common assault by threat (section 61),
Assault occasioning actual bodily harm (section 59),
Assault causing grievous bodily harm, and (section 35),
Assault causing wounding (section 35).
Assault causing death (section 25A (1)(a).
Common Assault
Definition
An assault can occur with either physical contact with another person (battery), or when causing someone to apprehend immediate unlawful violence (although there is no physical contact).
Thus, it is the fear of immediate unlawful physical contact which is at the centre of a common assault offence.
Elements Where There is No Physical Contact
1. The accused committed an act that intentionally, or recklessly, caused another person (the complainant) to apprehend immediate and unlawful violence.
2. There was no consent given for this conduct by the complainant.
3. The conduct was intentional or reckless. The accused realised that the complainant might fear immediate and unlawful violence yet still carried out their conduct on the complainant and took that risk.
4. The conduct was without lawful excuse.
Elements Where There is Physical Contact
1. A striking, touching, or application of force by the accused to another person (the complainant).
2. That such conduct of the accused was without the consent of the complainant.
3. That such conduct was intentional or reckless in the sense that the accused realised that the complainant might be subject to immediate and unlawful violence, however slight as a result of what he or she was about to do, but yet took the risk that that might happen.
4. That such conduct be without lawful excuse.
Maximum Penalties
Section 61 of the Crimes Act 1900 states that the maximum penalty for a common assault, although not occasioning actual bodily harm, is up to two years of imprisonment.
Assault Occasioning Actual Bodily Harm
Definition
Actual bodily harm is not defined in the Act. Under the common law in R v Donovan [1934] 2 KB 498, Swift J in the Court of Criminal Appeal said the following concerning bodily harm:
“‘[B]odily harm’ has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient or trifling.”
Mildren J stated that when assessing bodily harm, it is a matter of degree and can only be judged on the facts of each case (Wayne v Boldiston (1992) 85 NTR 8; 108 FLR 252; 62 A Crim R 1).
Elements
Actual physical or psychiatric harm must be suffered by the complainant. This need not be permanent but must be more than merely transient or trifling (R v Donovan [1934] 2 KB 498).
The complainant did not consent to the accused’s conduct.
The accused either intentionally or recklessly carried out conduct that occasioned actual bodily harm.
There is no requirement to prove that the accused specifically intended to cause actual bodily harm for a section 59 offence: Coulter v The Queen (1988) 164 CLR 350.
The prosecution must prove that the accused acted intentionally or recklessly when they assaulted the victim and that actual bodily harm was a consequence of their actions: R v Bloomfield (1998) 44 NSWLR 734 at 737.
Examples
Typical examples of injuries that are capable of amounting to actual bodily harm include scratches and bruises: McIntyre v R (2009) 198 A Crim R 549 at [44].
Actual bodily harm will likely have been occasioned where a victim has been injured psychologically in a very serious way, going beyond merely transient emotions, feelings, and states of mind: Li v R [2005] NSWCCA 442 at [45].
Maximum Penalties
Assault occasioning actual bodily harm attracts a maximum penalty of 5 years imprisonment, or 7 years if committed in company: s 59.
Reckless Grievous Bodily Harm or Wounding
Definition
Section 35 outlines that an accused who causes grievous bodily harm or wounding to any person and is reckless as to causing actual bodily harm to that or any other person shall be guilty of an offence.
Elements
The elements for this offence are:
An accused causes Grievous Bodily Harm as identified by section 4 of the Crimes Act 1900, or
An accused causes wounding. This includes the infliction of any injury which breaks that continuity of the skin (R v Shepherd [2003] NSWCCA 351). This requires a cut, incision, or piercing which penetrates the interior layer of the skin. A broken outer layer of skin is insufficient to establish wounding.
The conduct was reckless. The accused must have had subjective foresight to the probability of a wound or that actual bodily harm might be inflicted as a consequence.
Examples
Examples of grievous bodily harm include broken bones or internal organ damage.
Wounding at common law has been defined as breaking of the skin R v Shepherd [2003] NSWCCA 351 at [31]. Examples of this include cuts and bleeding from the skin tearing.
Maximum Penalties
Section 35 sets out the following offences and maximum penalties:
(1) recklessly causing grievous bodily harm in company: 14 yrs (SNPP 5 yrs),
(2) recklessly causing grievous bodily harm: 10 yrs (SNPP 4 yrs),
(3) reckless wounding in company: 10 yrs (SNPP 4 yrs),
(4) reckless wounding: 7 yrs (SNPP 3 yrs).
Wounding or Grievous Bodily Harm with Intent
Definition
Section 33 sets out the offences of wounding or inflicting grievous bodily harm with intent to cause grievous bodily harm (s 33(1)(a)–(b)).
Elements
The elements are:
The accused has the intent to cause grievous bodily harm – proven by the facts of the case. This means that the accused had knowledge or held the belief that their conduct would cause the victim grievous bodily harm or wounding.
The accused caused grievous bodily harm or causes wounding, as previously outlined.
Examples
Examples of grievous bodily harm include broken bones or internal organ damage.
Wounding at common law has been defined as breaking of the skin R v Shepherd [2003] NSWCCA 351 at [31]. Examples of this include cuts and bleeding from the skin tearing.
Maximum Penalties
Section 33 of the Crimes Act 1900 (NSW) states that the maximum penalty for this offence is 25 years imprisonment.
Assault Causing Death
Definition
Under section 25A of the Crimes Act 1900 (NSW), it is an offence for a person to assault another by intentional hitting, where assault causes death. If you commit this offence when intoxicated, this may increase the penalty under section 25B of the Crimes Act 1900 (NSW).
Elements
The Prosecution must prove these elements beyond a reasonable doubt:
You intentionally hit another person with any part of your body or with an object and
The assault is not authorised or excused by law, and
The assault causes the death of the other person.
An assault causing death includes death resulting from the person’s injuries received directly from the assault or from hitting the ground or another object.
Maximum Penalties
Assault causing death
The maximum penalty is 20 years imprisonment.
Assault causing death while intoxicated
The maximum penalty is 25 years imprisonment and a mandatory minimum sentence of 8 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on individual circumstances and the nature of your offence. In NSW, a court can impose any of the following penalties:
Defences
Some possible defences available for these charges can include:
If intoxicated, the intoxication was not self-induced, for example, your drink was spiked with drugs without your knowledge (Intoxication)
You were defending yourself or another person or your property (Self-Defence)