Table of Contents
- Common Assault Charge in Australia
- Common Assault Meaning
- What The Police Must Prove Against You for Common Assault
- Defences Available if Charged with Assault
- Penalty for Common Assault in NSW
- Pleading Guilty to Common Assault
In Australia, including NSW, slapping someone can indeed be considered a form of assault. Assault is defined as the intentional act of causing apprehension of immediate and unlawful violence under criminal law. Physical contact, such as a slap, falls under this definition. Assault charges can also be based on the threat of violence without actual physical contact.
This means that even if a person is not physically harmed, the NSW Police can lay an assault charge if the victim experienced a reasonable fear of immediate violence.
Common Assault Charge in Australia
There are various types of assault charges in Australia. For slapping someone, it is likely you would be charged with common assault. Common assault charges are taken seriously in Australia, as they involve the physical harm or threat of harm towards another person.
We will explore what constitutes common assault, the elements the police must prove in a case, and the penalties one may face if convicted. Understanding the intricacies of common assault charges is crucial for individuals to safeguard their rights.
Common Assault Meaning
Common assault, as outlined in the Crimes Act 1900 (NSW), refers to an act causing physical or mental harm, apprehension of immediate physical harm, or offensive physical contact without the consent of the victim. The term “common” in common assault refers to its classification as a less serious form of assault compared to more severe offences like grievous bodily harm.
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What The Police Must Prove Against You for Common Assault
To secure a conviction for common assault, the police must demonstrate several elements beyond a reasonable doubt. These elements include:
- Actus Reus: The police must establish that a physical act or offensive contact occurred without the consent of the victim. This can include slapping, punching, pushing, or any other form of physical force.
- Mens Rea: The prosecution must prove that the defendant acted intentionally or recklessly, knowing that their actions could cause harm or apprehension of harm.
- Causation: It must be established that the defendant’s actions directly caused the harm or apprehension of harm experienced by the victim.
- Lack of Lawful Justification or Excuse: The police must show that there was no legal justification or excuse for the defendant’s actions, such as self-defence or consent.
Defences Available if Charged with Assault
Self Defence
Self-defence is governed by Section 418 of the Crimes Act 1900, which defines the circumstances under which a person accused of assault can claim self-defence. According to the law, an individual can justify their actions as self-defence if they believe it is necessary for one of the following reasons:
- To protect themselves or someone else.
- To prevent or stop the unlawful restriction of their own or someone else’s freedom.
- To safeguard property from unauthorised taking, destruction, damage, or interference.
- To prevent criminal trespassing on any land or premises, or to remove a person engaged in such trespass.
In addition, the conduct must be a reasonable response based on the person’s perception of the circumstances. Simply raising self-defence as an issue in a case is sufficient for the accused. The burden then falls on the police to prove, beyond a reasonable doubt, that the person was not acting in self-defence.
To establish that self-defence does not apply, the prosecution must demonstrate either:
- The accused did not genuinely believe their actions were necessary for self-defence.
- The accused’s response to the danger, as perceived by them, was not reasonable.
Lawful Chastisement
In cases involving the correction of a child, the NSW Crimes Act specifies the conditions under which a person charged with a criminal offence against a child can raise the defence of lawful correction. To successfully invoke this defence, the following must be proven:
- The force used on the child was for disciplinary purposes.
- The force was applied by the child’s parent or someone acting on behalf of the parent.
- Considering the physical and mental characteristics of the child, as well as the child’s actions or other relevant circumstances, the force applied was reasonable.
However, the use of force would not be considered reasonable if:
- It is directed at the child’s head or neck, unless it was minimal or insignificant.
- The force is likely to cause harm to the child that extends beyond a brief period.
Penalty for Common Assault in NSW
The penalties for common assault in NSW vary depending on the severity of the offence, the defendant’s criminal history, and other aggravating or mitigating factors. In general, the maximum penalty for common assault is two years of imprisonment. However, the court has the discretion to impose lesser penalties, such as fines, community corrections orders, and full time term of imprisonment depending on the circumstances of the case.
Penalties can be more severe if the assault is committed against certain individuals, such as police officers, emergency service workers, or vulnerable persons, including children and the elderly.
Assault, including acts like slapping, can have serious consequences under the law and carry a maximum of 2 years term of imprisonment if dealt with in the Local Court of NSW, and higher if dealt with in the District Court of NSW.
Pleading Guilty to Common Assault
The Court considers various factors during the sentencing process, encompassing both objective and subjective aspects of the case. These factors assist in determining the appropriate penalty and whether a criminal conviction should be recorded.
One crucial consideration during sentencing is the objective seriousness of the specific offence in comparison to other instances of Common Assault. To assess this, the Court evaluates the following factors related to the objective seriousness of a Common Assault:
Mode of Assault
How the assault was conducted and the type of physical force used. For example, a push is viewed as less severe than a punch.
Duration
The length of the assault. A longer duration generally indicates a more serious offence.
Location of Assault
Whether the assault occurred in a public setting or at the victim’s home, which can be seen as an aggravating factor.
The Court must also consider subjective factors concerning the offender during sentencing. These factors may include, but are not limited to:
Attitude of the Offender
The offender’s attitude towards their criminal conduct is crucial. This encompasses their acceptance of wrongdoing, expressions of remorse and contrition, and insight into their behaviour.
Prior Criminal Record
The offender’s criminal history is taken into account, with first-time offenders or those with minimal prior offences often receiving some leniency.
Good Character
Demonstrating good character through community involvement, law-abiding behaviour, and character references can be influential.
Mental Illness
If there is evidence that a mental illness contributed to the offence, the offender’s mental health should be considered. In some cases, diversion away from the criminal justice system may be appropriate.
Rehabilitation Efforts
The steps taken by the offender towards rehabilitation significantly impact sentencing. The Court considers the offender’s willingness to change and reform, as well as their prospects of rehabilitation.
Likelihood of Re-offending
Based on factors such as the offender’s age, criminal history, attitude, and rehabilitation efforts, the Court assesses the probability of future offences. Rehabilitation and demonstrated insight and acceptance can substantially reduce the likelihood of re-offending.
If you have been charged with assault offences and need legal advice, contact an assault lawyer in Sydney. Our friendly team of criminal lawyers will provide you free consultation for up to 15 minutes.
