Common Assault

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If you have been charged with common assault, there are some important facts you should know.

 Maximum Penalty

Common assault carries a maximum penalty of 2 years imprisonment. This is also the maximum penalty the Local Court can impose for any offence. Consequently, the offence is viewed seriously by the courts.

The Offence

A common assault can include acts of physical violence against others, for example touching or striking someone. It can also include threats of violence if those threats put the victim in fear of immediate physical harm.

It is not necessary to prove an intention to assault the victim. Recklessness is sufficient.  For example, if you threaten without intending to put that person in fear, but you “foresaw” the likelihood of causing fear and then decided to ignore that risk, that is sufficient. Generally, the acts alleged must be hostile.

Defences

The prosecution must establish each ingredient of the offence of common assault beyond reasonable doubt.

One of the most common defences to a charge of common assault is self defence. Self defence is provided for in section 418 of the Crimes Act 1914. To successfully raise self defence, the following must be established:

  1. that the accused believed that their conduct was necessary to defend themself or another; and,
  2. what the accused did was a reasonable response in the circumstances as perceived by the accused.

The court looks at what the accused person believed as well as the situation as they perceived it. The court will also consider whether the response of the accused was reasonable.  Whether the response was reasonable is a completely objective assessment, however the circumstance as perceived by the accused are considered. Often, although an accused can establish that they believed that they did what was necessary to defend themself, the court will find that their response was excessive in the circumstances and will find their actions were not in self-defence.

Once self defence is sufficiently raised by an accused, the prosecution must disprove it beyond reasonable doubt.

Other defences include lack of any intent or recklessness to assault.

Additionally, 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.

Likely Penalty

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. Click here for more information on sentencing options: SENTENCE OPTIONS.

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.

Streeton Lawyers are Accredited Specialists in criminal law and have dealt with countless common assault charges. For free initial advice about your matter, and the likely penalty, contact us now.

By Justin Wong

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