Assault occasioning actual bodily harm is an offence under section 59 of the Crimes Act 1900. The maximum penalty for this offence is 5 years imprisonment. However, if the matter is dealt with by the Local Court, the maximum penalty that applies is 2 years imprisonment. If the assault is committed in the company of another person(s), the maximum penalty is increased to 7 years imprisonment.
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.
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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.
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  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  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.
What the prosecution must prove
To prove assault occasioning actual bodily harm, the prosecution must show beyond reasonable doubt that you:
- Committed an act of applied force to another person (e.g. touching or striking); and
- You did so intentionally or recklessly; and
- You did so without the consent of the person; and
- You did so without lawful excuse; and
- Your action caused bodily harm to the person.
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.
One of the most common defences to assault occasioning actual bodily harm is 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.
Can I avoid a conviction?
As with any offence, even after a finding of guilt a court can still decide not to record a conviction. For information on the sentencing options that do not involve a criminal conviction, click here: NO CONVICTION IN NSW.
However, this sentencing option is not always appropriate or attainable even if an offender has no prior criminal history due to the serious nature of assault occasioning actual bodily harm offences. A magistrate is required to take into account the following factors when considering sentencing an offender under section 10:
- The person’s character, antecedents, age, health and mental condition;
- The trivial nature of the offence;
- The extenuating circumstances in which the offence was committed; and
- Any other matter that the court thinks proper to consider.
However, it is important to note that this list is not exhaustive, and simply ticking each box will not guarantee that no conviction is recorded.
For FREE initial advice about the prospects of your matter, contact one of our criminal law specialists.
Will I go to jail?
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.
For the full range of penalties that can be imposed , see our Sentencing Options page.
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.
Streeton Lawyers are Assault Occasioning Actual Bodily Harm experts. Click below to read recent case studies: