What is Affray Charge in NSW?
Affray charge in NSW refers to a situation where someone uses or threatens to use unlawful violence towards another person. Further, where your conduct would cause an ordinary person to fear for their safety. This is a criminal charge, and the prosecution must prove the elements beyond a reasonable doubt. It is best to obtain legal advice from a specialist criminal defence lawyer if charged with this offence.
The Law - Affray Charge
An affray charge in NSW is governed by section 93C of the Crimes Act 1900. The prosecution must prove the following elements to convict you;
- You used or threatened to use violence towards another person;
- You intended to use or threaten to use violence;
- Your actions would cause a reasonable person to fear for their personal safety; and
- You did so without lawful excuse.
Possible Defences if Charged with Affray
The possible defences to an affray charge in NSW are;
- You did not use or threaten to use violence;
- That a person of reasonable firmness would not have feared for their personal safety because of the conduct; or
- You were acting in self-defence.
An affray charge in NSW carries a maximum penalty of 10 years imprisonment if convicted. This is a common charge in NSW and is prosecuted frequently. This charge follows the usual Court procedure in the Local Court unless there is an election. The matter will be finalised in the District Court of NSW if there is an election. Accordingly, it is crucial to obtain advice regarding this charge as soon as possible.
Sentencing Options In NSW for Affray Charge
The sentencing options available to courts dealing with a charge of affray in NSW are contained in the Crimes (Sentencing Procedure) Act 1999 (NSW). We will briefly describe them below;
Section 10
- 10(1)(a) – a court may find a person guilty of an offence, not record a conviction and order that the relevant charge be dismissed without penalty; or
- 10(1)(c) – a court may find a person guilty of an offence, not record a conviction and order that the relevant charge is dismissed on the condition that the person enters into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.
Conditional Release Order (CRO) (with or without a conviction)
Conditional Release Order can deal with first-time and less serious offences where the offender is unlikely to present a risk to the community.
The benefit of CROs is that the Court can impose conditions such as drug and alcohol abstention, programs, and non-association requirements or place restrictions where appropriate. CROs can also have supervision conditions. Courts have the discretion to impose a conviction on a CRO if they consider it appropriate. CROs can be imposed for a period of up to two years.
Community Correction Order (CCO)
The Court uses Community Correction Order for offenders for crimes that do not warrant imprisonment or an ICO but are too serious to be dealt with by a fine or lower penalty.
The benefit of CCOs is that they are flexible sentences that the Court can tailor to reflect the nature of the offender and the offence. The Court can select from the range of conditions, such as supervision by Community Corrections Officers, community service work (up to 500 hours) and curfews, to hold offenders to account and reduce their risk of reoffending. CCOs can be imposed for a period of up to three years.
Deferral of sentence for rehabilitation participation, intervention program or other purposes
The Court may, on an application or on its own accord, adjourn any matter for a maximum of 12 months to assess an individual’s capacity for rehabilitation or to enable a rehabilitation or intervention program to occur.
Intensive Correction Order (ICO)
An ICO is a custodial sentence of up to two years that the Court decides can be served in the community.
Supervision is mandatory. Courts can add conditions to an ICO such as home detention, electronic monitoring, curfews, community service work (up to 750 hours). In addition, alcohol/drug bans, place restrictions, or non-association requirements. Offenders may also be required to participate in programs that target the causes of their behaviour.
For more serious breaches, offenders will continue to be referred to the State Parole Authority (SPA) and may be required to serve the remainder of their sentence in custody.
The ICO is the most severe sentence that an offender can serve in the community. ICOs are not available for offenders convicted of murder, manslaughter, sexual assault, any sexual offence against a child, offences involving firearm discharge, terrorism offences, breaches of serious crime prevention orders, or breaches of public safety orders.
Full-Time Custodial Sentence
The Court may impose a full-time custodial sentence.
