Is Spitting On Someone Assault?

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Spitting on someone can be considered a form of assault, and in some cases, it can lead to arrest and criminal charges. While spitting on someone may not cause significant physical harm, it can be a demeaning and humiliating act that can cause emotional distress to the victim. The NSW Police can charge with common assault or stalk and intimidate charges for such an act.

Can you get Arrested for Spitting?

You can be arrested for spitting on someone. Whether or not spitting on that person is considered assault depends on the circumstances surrounding the incident. If the spitting was intentionally or recklessly directed towards the victim, it may be classified as common assault or stalk or intimidate. In contrast, if the spitting was accidental or unintentional, it may not be considered assault.

What is Common Assault?

Common assault is defined as the use of force or the threat of force against another person without their consent. This can include physical contact, such as hitting or pushing, or non-physical actions that cause a person to fear immediate harm. Spitting on someone may be considered a form of common assault, as it involves the use of force without the victim’s consent. The relevant section in the legislation is;




Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.

Is Common Assault a Summary Offence?

Common assault is classified as a summary offense, meaning it is considered a minor criminal offense that can be heard and sentenced in a lower court. In New South Wales (NSW), a summary offence is a type of minor criminal offence that is heard and decided in a Local Court of NSW without a jury. Summary offences are less serious than indictable offences and are typically punishable by a fine, community service, or a short term of imprisonment.


Some examples of summary offences in NSW include traffic violations such as speeding or driving without a valid license, minor theft, disorderly conduct, and some types of assault, including common assault.


Summary offences are prosecuted by police, and the accused person, just like any other criminal offence has the right to legal representation.

Defence to Common Assault Charge

Self Defence


Self-defence is a legal defence available in New South Wales (NSW) that allows a person to use reasonable force to defend themselves, their property, or another person from an imminent attack or threat of attack. Under the law, a person can use force that is reasonably necessary to protect themselves or others from harm.


To successfully use self-defence as a legal defence in NSW, several conditions must be met. First, the person using self-defence must believe that their actions were necessary to protect themselves or someone else from an imminent threat of harm. Second, the force used must be reasonable in the circumstances, meaning that it is proportionate to the threat faced. Third, the person using self-defence must not have started the altercation or provoked the attack in any way.




Proving that the complainant gave their consent to the act in question can result in the charges being dropped. However, this is often a challenging defence to establish since the complainant is unlikely to admit to consenting to the act that they are opposing. In order to prove this defence beyond reasonable doubt, adequate evidence would be necessary.




The necessity defence is utilised when the defendant had to commit an assault in order to defend themselves, another individual, or property in a reasonable manner. For this defence to be applied, the following three elements must be present:


  1. The assault was necessary or perceived to be necessary to prevent death or serious injury.
  2. The prevention of death or serious injury was the motive for committing the assault.
  3. Objectively, the assault was reasonable and proportional, considering the prevention or avoidance of danger or death.

Examples of the necessity defence include situations where individuals push others out of the way during an escape.

Likely Penalty for Spitting on Someone in NSW

The maximum penalty for common assault in NSW is two years’ imprisonment and/or a fine of up to $5,500. However, the actual penalty imposed by the court will depend on a range of factors, including the seriousness of the assault, the victim’s injuries, and the offender’s criminal record.


In addition, under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), stalking and intimidation is a criminal offence that can be punished by up to five years’ imprisonment and/or a fine of up to $11,000.

Sentence Options Available to the Court

If you plead guilty, sentences in NSW is governed by the Crimes (Sentencing Procedure) Act 1999. The general sentencing principles for the purposes of sentencing are set out in section 3A. It is as follows;


a) To ensure that the offender is adequately punished for the offence;

b) To prevent crime by deterring the offender and other persons from committing similar offences;

c) To protect the community from the offender;

d) To promote the rehabilitation of the offender;

e) To denounce the conduct of the offender; and

f) To recognise the harm done to the victim of the crime and the community.


There are numerous other factors taken into account by the Court when imposing sentence. The sentencing options in NSW are;


  • Section 10;
  • Fine;
  • CRO;
  • CCO;
  • ICO; and
  • Full time imprisonment.

Depending on various factors and your previous criminal convictions, a person will likely receive a section 10. A Section 10 order is a criminal sanction that can be imposed by a magistrate or judge during sentencing. The Crimes (Sentencing Procedure) Act 1999 (NSW) allows a court to find an accused person guilty without recording a criminal conviction. These orders can contain certain conditions that the offender must adhere to.


Section 10 of the Crimes (Sentencing Procedure) Act 1999 outlines the three orders that a court can make if it decides not to record a criminal conviction against an offender:


  • A s 10(1)(a) order, which dismisses the relevant charges.
  • A s 10(1)(b) order, which discharges the offender under a conditional release order (CRO).
  • A s 10(1)(c) order, which discharges the offender on the condition of their participation in an intervention program.

To be eligible for a CRO under s 10(1)(b), the court must be satisfied under s 10(2).


If you have been charged with spitting on someone or any other criminal offence in NSW, it’s important to seek legal advice from a qualified criminal lawyer. An assault lawyer in Sydney from Lyons Law Group can advise you on your legal rights and options. We can help you build a strong legal defence to achieve the best possible outcome for your case.

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