What is the penalty for affray?

What is the penalty for affray?


What is affray?


The legal definition of ‘affray’ is found under Section 93C of the Crimes Act 1900 (NSW).


Generally, affray is the act of violent behaviour that would cause another person who is present to fear for their safety. It is the type of charge where police may find your violent behaviour so reprehensible that a simple common assault charge is simply not severe enough.

It is also often the case that police will lay this charge if they cannot identify the victim of the assault that is alleged against a person.

In order to be convicted of a charge of affray, the prosecution must prove beyond reasonable doubt, the following:

  1. You used or threatened to use unlawful violence towards another
  2. The violence was unlawful
  3. A person of reasonable firmness would fear for his/her safety

It is important to note that the person of reasonable firmness need not be actually present at the scene. In other words, you could be charged with affray even if no one is even there to fear for his or her safety!

Police will often charge Affray in circumstances where you participate in a fight involving numerous people. This can often make it hard for police to identify who inflicted the unlawful violence upon who, particularly when CCTV footage is unclear.


What is the likely penalty for affray?


The maximum penalty for the charge is 10 years imprisonment.

Affray is an offence that can be dealt with in either the District Court or the Local Court. Generally affray is an offence that is dealt with summarily, that is in the local court, where the maximum penalty is 2 years imprisonment. If it is your first offence, the penalty can range from just a fine to community service or jail, depending on the particular seriousness of the offending behaviour.


Will I get a criminal conviction for affray?


If you plead guilty to affray, or are found guilty, you will likely get a criminal record from an affray charge. Whilst it is possible to get a “section 10” for affray, it is difficult. However, if it is your first offence, you will likely not go to jail.


How can I defend a charge of affray?


In order to defend a charge of affray, often you can rely on the following defences:

  • ID evidence – that there is insufficient evidence to prove that you were there or committed the offence.
  • Duress – someone else ‘made’ you do it. There must be a sense of immediacy in terms of the other person ‘making you’ do it.
  • Self-defence- you were defending yourself against an assault and that was the only reason that you committed the offence.


Can I get an affray charged dropped?


The offence of ‘affray’ is a ‘catch-all’ type of offence. In assault matters, police will often charge you with common assault, assault occasioning actual bodily harm and affray. If you intend to plead guilty, we can negotiate with police on your behalf in order to have the most serious charge of affray dropped.

Police will very often be open to negotiating the charge of affray down to a less serious charge, in order to avoid complicated legal proceedings and hearings.  Identification of each party’s role in altercation can often cause the prosecution problems, so it is very important that you seek the services of a good criminal lawyer to defend you in your case.

For more information on affray, and case studies where we have appeared in court on affray charges for our clients, go to:


Call LY Lawyers on 1300 595 299 to speak to one of our experienced criminal defence lawyers.