Common assault is the least serious form of assault. Threats of violence alone can sometimes amount to an assault. Despite these assaults not actually requiring any physical contact with the victim, courts can find them to be very serious.
However, if it is your first offence, you may very often be able to avoid conviction and a criminal record.
What is Common Assault?
Common assault is an act where a person intentionally or recklessly causes another person to apprehend the immediate use of unlawful violence. This means that the offence can still occur even if you haven’t touched another person. As long as there is an alleged act that causes someone else to fear your use of immediate and unlawful violence, you can be charged with common assault.
Such acts include if you have:
- Initiated physical contact with another person, such as slapping, punching, kicking, spitting or pushing (this is known as battery)
- Threw something in the direction or another person, even if it didn’t hit them.
- Verbally threatened to cause harm to another person.
- Indicated the use of unlawful violence, such as raising a fist.
- Restrained someone physically against their will.
Most instances of common assault do not occasion actual bodily harm or grievous bodily harm, meaning that no serious injury was inflicted on the victim. In instances where the assault is found to be recklessly causing injury, you will be charged with a separate offence called assault occasioning actual bodily harm.
Common Assault Charges in NSW
In NSW, common assault is an indictable offence that is charged under section 61 of the Crimes Act 1900. Usually offences of common assault in NSW are dealt with by a Local Court, however the prosecution can request to have the matter addressed by the District Court.
The main difference between the two Courts is that the Local Court is heard by a magistrate with lawyers and no jury. Meanwhile, the District Court is when a jury is involved with Judges and Barriers.
What is the penalty for common assault?
Within the framework of NSW criminal law, there are a range of penalties that a court can sentence you to if found guilty of common assault.
These penalties include:
- Fine: carries a maximum penalty $2,200.00.
- Section 10: no conviction is recorded and the Court will conditionally discharge you
- Section 9: good behaviour bond that may include mandatory supervision by the Probation and Parole Service or other programs.
- Section 12 – Suspended sentence: suspended prison sentence based on a good behaviour bond.
- Prison sentence: under section 61 of the Crimes Act (NSW) 1900, you can face a maximum penalty of 2 years imprisonment.
If found guilty, the Court will take into account a range of factors that will influence the severity of your sentencing. This can include if it was your first offence (including your proven track record), if the offence holds multiple assault charges or if the assault initiated was proven to be occasioning bodily harm.
If you have been charged with this criminal offence, it is essential that you consult an experienced criminal lawyer to help you guarantee the most favourable outcome for your case. LY Lawyers has a criminal defence lawyer team that can help provide the best legal advice for common assault.
Call our legal team at 1300 595 299 for a free consultation with a specialist criminal lawyer and discuss what options are best for you.
Common Assault as a First Offence
If you have been found guilty of common assault and it is your first offence, it is likely that the Court won’t issue criminal charges or a prison sentence. Instead, the Magistrates’ Court may deal with the common assault with pursuant to section 10 of the Crimes (Sentence Procedure) Act. Within this scenario, you will be dismissed from the assault charge and conditionally discharged, meaning that no conviction will be recorded, nor will you receive any other penalty or criminal record.
First Offence Sentence with Conditional Release Order (CRO)
According to the NSW Sentencing Bench Book, pleading guilty to a first offence will favour the court to issue a Section 10 with a Conditional Release Order (CRO), which is used to deal with offenders who are unlikely to commit future offences.
A CRO is a type of good behaviour bond, requiring you to not commit any other offences for a specific period of time. The conditions of good behaviour may include you to abstain from drugs and alcohol, attend programs or follow other restrictions put in place by the Court.
The Court also has the ability to decide the length of the CRO. However, the maximum period of time that they can impose is 2 years.
Plead not guilty
If you deny that you assaulted the victim, or say you acted in self defence, our legal team will fight hard to get you acquitted.
In order to be convicted of this offence, the police must prove beyond a reasonable doubt that:
- You applied force to another person (usually by striking or touching), or threatened another person with immediate violence;
- The act was done either intentionally or recklessly;
- Without the implied consent of the person whom the common assault occurred against; and
- Without lawful excuse.
If any of the above elements cannot be proven beyond reasonable doubt, then you will be found not guilty of the offence.
If the above elements can be proven beyond reasonable doubt, you will still be found not guilty if any of the following defences can be established:
- Duress: occurs when a serious threat to you or your family which motivated your conduct constituting the criminal offence.
- Necessity: occurs where circumstances cause you to break the law in order to avoid even more serious consequences.
- Self-defence: occurs when your actions are motivated in trying to protect yourself, another person, your property, or the liberty of yourself or another person.
Our experienced criminal lawyers will advise you of your prospects of successfully defending any charge brought against you and fight to have you found not guilty of the offence.
To avoid aggravated assault charges, you will have to prove that the actions you took were not causing bodily harm to the victim.
If you agree with what the police are alleging against you, it is recommendable to plead guilty as it demonstrates remorse and contrition, meaning that you will be entitled to a discount on your sentence.