Affray is a criminal offence under section 93C of the Crimes Act 1900 (NSW). It carries a maximum penalty of 10 years imprisonment.
This charge may be heard by a magistrate in the Local Court unless the accused person or the prosecutor elects to have it heard in the District Court. If the charge is heard in the Local court the maximum penalty is imprisonment for 2 years.
The offence is committed when a person uses or threatens unlawful violence towards another that would cause a person of reasonable firmness present at the scene to fear for his or her personal safety.
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What the prosecution must prove
To prove affray, the prosecution must show beyond reasonable doubt that:
- A person used, or threatened to use unlawful violence towards another person, and
- That person intended to use, or intended to threaten to use, violence, and
- The persons actions would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, and
- The person did so without lawful excuse.
It is a defence to this charge if the accused person was acting in self-defence.
Will I go to jail?
In sentencing a person for this offence the judge or magistrate will consider their conduct and the level of violence used. The judge or magistrate will also consider whether the person has shown any remorse, has a criminal record and other factors such as employment and any health issues.
In an appropriate matter the judge or magistrate would consider an alternative to a gaol sentence, such as a good behaviour bond or community service.
For a free, no obligation, consultation about your matter, contact one of our criminal law specialists.