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.
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, 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.
To secure a conviction for common assault, the police must demonstrate several elements beyond a reasonable doubt. These elements include:
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:
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:
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:
However, the use of force would not be considered reasonable if:
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.
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.
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.
Demonstrating good character through community involvement, law-abiding behaviour, and character references can be influential.
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.
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.