Assault against a police officer while they are in the execution of duty is a serious criminal offence. It is an offence under sections 58 and 60 Crimes Act 1900 and has a maximum penalty of 5 years imprisonment, or 2 years if the matter is finalised in the Local Court.
The assault of police officers is a serious offence, primarily because of the vulnerable position police are placed in but and also for the need to send a message to the community that assaults on police will be treated seriously by the courts.
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In NSW, there are two charges that cover assaulting a police officer, section 58 of the Crimes Act 1914 which covers assaults on “officers”, and section 60 which is specific to assaulting a “police officer”. Both offences carry a maximum penalty of 5 years imprisonment.
There are more severe penalties if the offence is aggravated:
- by being committed during a public disorder – 7 years imprisonment
- if actual bodily harm is caused as a result of the assault – 7 years imprisonment (3 years standard non-parole period)
- by being committed during a public disorder and results in actual bodily harm – 9 years imprisonment
There are also separated offences for those who recklessly inflict grievous bodily harm or wounding on a police officer. See sections 60(3) and 60(3A) of the Crimes Act 1900, which provide for maximum penalties of 12 and 14 years imprisonment.
What the prosecution must prove
To prove an offence of assaulting a police officer, the prosecution must show beyond reasonable doubt that you:
- Assaulted a person; and
- That person was a police officer; and
- At the time of the assault, that police officer was in the execution of their duty.
What is an assault?
What constitutes an assault is a very broad range of actions, and can include non-physical threats. For a detailed description on assault, please see our assault page.
What constitutes “in the execution of duty”?
Like other offences involving police, it must be proved that the officer was acting in the execution of his or her duty when the assault occurred. Normally, this is not in question, however there are times when a police officer’s actions cannot be said to be within the execution of his or her duty.
A police officer’s actions are not within the execution of his duty when his actions are illegal or outside the scope of his duty.
Section 60(4) extends the scope of “in the execution of the officer’s duty” to actions taken in relation to an officer, even if the officer is not on duty at the time, if the action is carried out:
- as a consequence of, or in retaliation for, actions undertaken by that police officer in the execution of the officer’s duty, or
- because the officer is a police officer.
It is generally understood that the prosecution does not have to prove that the accused knew that the victim was a police officer.
As with any criminal offence, the prosecution must establish each element of the offence beyond reasonable doubt.
The defence of self defence is also available to a charge of assault police in the execution of duty.
Another defence is that when the person assaulted the officer, the police officer was not acting within the execution of his duty.
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.
Will I go to jail?
Upon conviction, assault police officer carries a maximum penalty of imprisonment. However, the maximum penalty is for the most serious offender and usually reserved for someone who also has a past criminal history.
The penalty imposed will depend on a number of factors including the nature of the assault, the injuries (if any), the degree of violence used and whether there were any other aggravating features.
Your personal circumstances will also be relevant, as will your criminal history.
For the full range of penalties that can be imposed, see our Sentencing Options page.