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Assault Occasioning Actual Bodily Harm

Criminal Lawyers Sydney

  • Section 59 Crimes Act 1900
  • Maximum penalty: Imprisonment for 5 years (2 years if dealt with in the Local Court)

The Offence

Assault occasioning actual bodily harm involves an assault which inflicts some “actual bodily harm”. Like common assault, it is one of the most commonly prosecuted offences in the Local Court, however as it always involves some actual injury or harm to the victim, it is treated more seriously by the courts. This is reflected in the increased maximum penalty of 5 years imprisonment or 2 years imprisonment when dealt with in the Local Court.

If the assault is committed in the company of another person(s), the maximum penalty is 7 years imprisonment.

Assault occasioning actual bodily harm is what is called a “Table 2” offence which means it can be dealt with in the District Court if the prosecution decides, however the vast majority of offences are dealt with in the Local Court.

As with any assault, it is not necessary for the prosecution to prove that the accused intended to assault the victim. It is sufficient if the prosecution can establish that the accused was reckless in this regard.  For example, if an accused person threatens someone with immediate violence without intending to put that person in fear, if the accused foresaw the likelihood of causing fear and chose to ignore that risk, that is sufficient. Generally, the acts alleged must be hostile.

It is not necessary for the prosecution to prove that the accused intended to inflict the injuries constituting the actual bodily harm, only that the injuries were a result of the assault.

What is “Actual Bodily Harm”

The most commonly sighted definition of actual bodily harm is any hurt or injury, which doesn’t necessarily have to be permanent, but must more than “merely transient and trifling”. R v. Donovan [1934] KB 498.

In practical terms, this could include bruising, cuts or lacerations, scratches or even knife wounds. This list is not exhaustive.

The NSW Court of Criminal Appeal in McIntyre v R [2009] NSWCCA 305 conveniently summarised “actual bodily harm”:

“…it is something less than “grievous bodily harm”, which requires really serious physical injury, and “wounding”, which requires breaking of the skin… The distinction between grievous bodily harm and actual bodily harm involves an assessment of the degree of harm done, with one being more serious than the other…Bruises and scratches to a victim are typical examples of injuries that are capable of amounting to actual bodily harm… If a victim has been injured psychologically in a very serious way, going beyond merely transient emotions, feelings and states of mind, that would likely amount to actual bodily harm”.

It is often the subject of argument whether injuries suffered by a victim amount to actual bodily harm or grievous bodily harm. Click here for more information on grievous bodily harm: GBH.

Defences

As with any criminal offence, the prosecution must establish each element of the offence beyond reasonable doubt.

One of the most common defences to assault occasioning actual bodily harm is self defence. Click here for more information on self defence: SELF DEFENCE.

Other defences include lack of any intent or recklessness to assault, or that the injuries alleged were either not caused by the assault or actions of the accused, or that they do not constitute actual bodily harm.

Often the facts which the prosecution allege are disputed. For example, the accused person denies that the incident actually occurred or occurred exactly how the prosecution allege. Remember, it is for the prosecution to prove that the incident occurred as they allege.

Likely Penalty

In the Local Court, upon conviction, a person is liable to imprisonment for up to 2 years. However, the maximum penalty is for the most serious offender and usually reserved for someone who also has a past criminal history. If dealt with in the District Court, the penalty is 5 years imprisonment, or 7 years if the offence was committed in the company of others. Click here for more information on sentencing options: SENTENCING OPTIONS.

The penalty imposed will depend on a number of factors including:

  • The extent of the injuries caused
  • The degree of violence or force used in causing those injuries
  • Whether the assault was committed intentionally or recklessly
  • Whether there were any aggravating features, such as whether the offence was committed in the home of the victim or in the presence of a child or person under 18 years of age.

Your personal circumstances will also be relevant, as will your criminal history.

As with any offence, even after a finding of guilt a court can still decide not to record a conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999. Click here for more information on section 10: SECTION 10.

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