Assault Law: Assault Defences & Penalties

Proctor & Associates will advise you on the best course of action in order to obtain the best possible result for you. Should you find yourself charged with any of the following assault related offences, or any other offences, contact us immediately and organise an appointment.

While all assaults are serious, they can nevertheless be categorised by degrees of seriousness.

Common Assault

The least serious is what is commonly referred to as Common Assault.

S.61 of Crimes Act (NSW) states:
“Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.

There are many and varied definitions of assault, however in simple terms, it can be aptly defined as any act by an accused person which intentionally or recklessly creates in the mind of another the apprehension of immediate or unlawful violence. It can therefore be committed without touching another person, so long as there is a threat of violence and the wherewithal to carry out the threat.

Assault Occasioning Actual Bodily Harm (AOABH)

S.59 of the Crimes Act (NSW) states:
(1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years.

(2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years.

This offence occurs when a person assaults another (whether in the company of another or otherwise) and as a result of that assault, the victim receives an injury which can be described as “bodily harm”.

Bodily harm is not defined in the Crimes Act, but is more than a trifling injury and according to case law is to be given its “ordinary meaning”. It need not be a permanent injury but one that interferes with the victim’s “health and comfort”.

Reckless Wounding or Causing Grievous Bodily Harm

These offences are far more serious than those previously dealt with and more often than not result in full time gaol sentences on conviction. They carry Standard Non-Parole periods.

S.35 of the Crimes Act (NSW) states:
(1) Reckless grievous bodily harm in company: A person who, in the company of another person or persons, recklessly causes grievous bodily harm to any person is guilty of an offence. Maximum penalty: Imprisonment for 14 years.

(2) Reckless grievous bodily harm: A person who recklessly causes grievous bodily harm to any person is guilty of an offence. Maximum penalty: Imprisonment for 10 years.

(3) Reckless wounding in company: A person who, in the company of another person or persons, recklessly wounds any person is guilty of an offence. Maximum penalty: Imprisonment for 10 years.

(4) Reckless wounding: A person who recklessly wounds any person is guilty of an offence. Maximum penalty: Imprisonment for 7 years.

(5) Alternative verdict If on the trial of a person charged with an offence against any subsection of this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against any other subsection of this section (that carries a lesser maximum penalty), the jury may acquit the person of the offence charged and find the person guilty of an offence against that other subsection. The person is liable to punishment accordingly.

These offences occur when serious injury is occasioned and often involve the use of a weapon.

The meaning of “wounding” and “grievous bodily harm” has been considered in a variety of cases.

The accepted view as to what constitutes a wounding is any injury where the skin has been penetrated through the various layers. The breaking of the epidermis is NOT sufficient. It must also break the inner layers of skin.

The expression “Grievous bodily harm” has been defined in case law as a “really serious injury” is includes (s.4 Crimes Act) “any permanent or serious disfiguring of the person”.

These offences are not confined to intentional acts but also “reckless” acts. As to whether the acts of an accused are to be regarded as “intentional” or “reckless” will be a question for the tribunal of fact to determine at a hearing of the matter.

Sentencing – There are Standard Non-Parole Periods for these offences which are set out below.

Offence and Standard Non-Parole Periods:
s.35(1)- Reckless GBH in company | 5 years
s.35(2)- Reckless GBH | 4 years
s.35(3)- Reckless wound in company | 4 years
s.35(4)- Reckless wounding | 3 years

Wounding  or Grievous Bodily Harm With Intent

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(1) A person who:
(a) wounds any person, or
(b) causes grievous bodily harm to any person, with intent to cause grievous bodily harm to that or any other person is guilty of an offence. Maximum penalty: Imprisonment for 25 years.

(2) A person who:
(a) wounds any person, or
(b) causes grievous bodily harm to any person, with intent to resist or prevent his or her (or another person’s) lawful arrest or detention is guilty of an offence. Maximum penalty: Imprisonment for 25 years.

(3) Alternative verdict:
If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against section 35, the jury may acquit the person of the offence charged and find the person guilty of an offence against section 35. The person is liable to punishment accordingly.

This class of offence is the most serious of assaults short of attempt murder and carries severe penalties.

This offence has a Standard Non-Parole period of 7 years.

The only difference between offences under s.35 and those under this Section is the question of INTENT. The offender must “INTEND” the result.

So, a person who assaults another with the intention of causing a “really serious injury” and in fact causes a really serious injury, will be guilty of such offence.

There is a reasonable inference that if someone shoots at someone, the intention is to either “wound” or “cause GBH”. Similar inferences may be gained in cases of stabbing by use of a knife or similar weapon.

Proctor & Associates will advise you on the best course of action in order to obtain the best possible result for you. Should you find yourself charged with any of the above offences, or any other offences, contact us immediately and organise an appointment.

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