What is Battery vs What is Assault?

assault in city

The legislation for assault charges is different in every state in Australia. An assault charge carries severe penalties under the criminal justice system in Australia, especially in New South Wales. Australian law deals severely with people who use violence, threats, and intimidation against another person. 

Assault vs Battery

In New South Wales, Divisions 6 and 9 of the Crimes Act 1900 govern assault offences against a person. An assault is an offence against a person, and charges are not to be taken lightly, even if the incident seems minor. Australian law recognises assault as an offence against the person, irrespective of the seriousness of the offence. 

An assault happens when a person applies force, move, touch, or strike another person without the person’s consent. This also applies if the person’s content was obtained by fraud. Physical injury is not necessary for an assault to take place. An assault is also seen as an attempt or a threat where the offender has or appears to have, the ability and the intention to follow through with the assault. 

Assault can thus be described as the act of intentionally or recklessly putting the victim in fear of imminent physical harm. The purpose of the assault is to threaten or attempt to harm another person. Battery can be described as the use of physical force against the victim or the infliction of physical harm to the person of the victim. The purpose of the battery is to inflict harm. Assault thus refers to the threat of force, and battery refers to the actual use of the force. 

Section 61 of the Crimes Act sees the use of fear of the threat of force as the gist of assault. Even with no physical contact, the threat of force or violence is sufficient to constitute an assault.

“Force or violence” suggests a person will seriously harm another person. However, this isn’t always the case. In some situations, assault charges could also apply even if the victim suffers no visible injuries. 

In the past offenders were typically charged with battery and assault, for example, if they punched somebody. The physical contact between the fist and the body was charged as battery. The fist in flight to the body was charged as assault. There was a distinction in Australia between battery and assault. Under NSW law the distinction between battery and assault no longer applies and has mostly disappeared from criminal law.

The law stipulates both the threat and the use of force are now considered to be an assault and will be charged as such. Battery is now treated as a form of assault. 

According to the Crimes Act, assault offences may occur when a person:

  • Inflicts actual bodily harm (Section 59)
  • Recklessly causes grievous bodily harm or wounding (Section 35)
  • Intentionally causes grievous bodily harm or wounding (Section 33)
  • Causes grievous bodily harm by unlawful act or negligence (Section 54)

Penalties for different assault offences depend on the seriousness and the nature of the incident.

Assault charges have a jail term and the maximum penalty is applicable. The type of offence, the offence’s circumstances, and the offender’s criminal history will determine the term of imprisonment. All the various types of assault offences carry a possible term of imprisonment. The length of the imprisonments for the types of assault charges varies between the different states and territories in Australia.

The other sentencing options for some of the assault offences are fines, probation, community correction orders, good behaviour bonds, or suspended sentences. 

The Different Types of Assault

Various factors aggravate several different assault-type offences. If the offence is aggravated, a harsher penalty will follow. The five main types of assault charges are:

  • Common Assault
  • Assault occasioning bodily harm
  • Unlawful wounding
  • Grievous bodily harm
  • Sexual assault

Common Assault

Common Assault can be the result of a simple argument. This is the most frequent assault charge in Australia. A person can be charged with an assault if the person:

  • Threaten another person
  • Minor injuries occur from a shove, push, hit, or any other contact.
  • Spit on or throw an object at another person

Common assault is a crime under Section 61 of the Crimes Act 1900 (NSW), and it is defined under the common law. This includes:

  • Any act which causes another person to fear the threat of force i.e. a raised fist or the threat of a punch
  • The use of force i.e. striking, punching, spitting, poking, or touching another person

The prosecution has to prove beyond a reasonable doubt that the accused applied physical force to another person and threatened the person with immediate violence. The accused did this intentionally and recklessly, without the person’s consent and lawful excuse.

Self-defence is a common defence for common assault. The defence has to show the accused thought their conduct necessary to defend themselves and that the actions were a reasonable response in the perceived circumstances. However, the conduct cannot be excessive or unreasonable in the circumstances. Other possible defences include the accused acting under duress and necessity or that the assault was an accident. 

The penalty for common assault will differ in every state or territory. The severity of the common assault, the extent of the harm caused, and the criminal history of the offender will be taken into account. The court will determine the appropriate penalty on objective seriousness and subjective considerations.

The following factors are relevant to the objective seriousness of a common assault:

  • Mode of assault
  • Duration of the assault
  • The location of the assault
  • Was the assault planned or spontaneous?
  • Provocation
  • The age of the victim

The court will also take subjective considerations into account:

  • The attitude of the accused towards their conduct
  • Any prior criminal record
  • Good character
  • Age
  • Mental illness
  • The availability of a support network
  • Steps towards rehabilitation
  • The likelihood of re-offending

Common assault cases are mostly heard in the Local Court before a local Court Magistrate. The prosecution might however decide to have the case heard on indictment in the District Court. The case will then be determined by a District Court judge and a 12-member jury panel if the accused enters a plea of not guilty. 

The common assault sentence for a first offence will usually be a lighter sentence than for second or subsequent offences. The maximum penalty for common assault is 2 years imprisonment or a fine of 20 – 50 penalty units. It is a Table 2 offence, and the least amount of injury was inflicted upon the victim.

Assault Occasioning Bodily Harm

Section 59 of the Crimes Act 1900 outlines assault occasioning bodily harm as a crime, and the offence is charged when the accused intentionally or recklessly engage in common assault and the assault resulted in actual bodily harm. 

Assault with occasioning bodily harm is a serious type of assault charge. The victim suffers from an injury such as scratches, bruising, or swelling and this injury will require medical treatment. These injuries interfere with the health of the victim, and this can also include a serious and lengthy psychological injury. 

This type of assault can be upgraded to aggravated assault occasioning bodily harm if the accused used a weapon or the threat of the use of a weapon during the assault. 

The maximum sentence for assault occasioning bodily harm is 5 years imprisonment or 7 years if in company. Assault occasioning bodily harm is also a Table 2 offence. 

Unlawful Wounding

Unlawful wounding is another serious assault. The accused has to break, cut or penetrate two layers of skin to be charged with unlawful wounding. This does not only have to be a result of a stabbing. Medical evidence will be obtained to justify the charge. The accused can be charged with grievous bodily harm and with wounding if the injury is really serious. 

The penalty for unlawful wounding is 7 years imprisonment or if in company 10 years.                                                                                                                                       

Grievous Bodily Harm

Grievous bodily harm is one of the most serious forms of assault. It is a crime under Section 33(1) of the Crimes Act. The accused can be charged with the offence when:

  • The accused recklessly and maliciously caused grievous bodily harm to another person
  • The accused intended to cause grievous bodily harm to another person

The victim might lose a distinct part of an organ, suffer disfigurement, or have a serious injury, resulting in permanent injury or death when left untreated. Broken teeth, broken bones, head injuries, or severe internal bleeding might be a result of grievous bodily harm. This can also include the destruction of a foetus. 

The penalty for recklessly and maliciously inflicting grievous bodily harm is 10 years imprisonment or 14 years if in company. The more serious offence of inflicting grievous bodily harm with the intent to inflict harm, resisting arrest, or the prevention of the apprehension of any person carries a maximum sentence of 25 years in prison. 

Serious assault

The assault of a public officer or a police officer in the line of duty is seen as a serious assault. The public officers include a child protection officer, a transit officer, a health service employee, and a correctional officer. 

The accused can be charged when:

  • A person bites or spites on a police or a public officer
  • A person pretends to be armed with a dangerous weapon
  • A person assaults a person who relies on a guide, hearing, or assistant dog
  • The assault of a person in a wheelchair
  • A person assaults a person over 60 years and over

A person will receive the following penalties when assaulting a police officer on duty:

  • Maximum penalty of 5 years – assaulting, stalking, or intimidating a police officer with no grievous bodily harm inflicted
  • Maximum penalty of 5 years – assaulting a police officer and inflicting bodily harm
  • Maximum penalty of 12 years – maliciously wounding or inflicting grievous bodily harm on a police officer

These offences generally only apply if the victim was on duty. The charges will also apply when the officer was not on duty, but the assault was committed because of the duties of the police officer. The prosecution has to prove beyond a reasonable doubt that the police officer was busy with the execution of his/her day-to-day duties. However, the prosecution does not need to prove that the accused knew that the victim was a police officer. 

Sexual assault

Another serious assault is sexual assault. Gross sexual indecencies in public or in private places are classified as sexual assaults. The action of sexual assault occurs when a person touches another person inappropriately without consent and forces this person to commit an act of gross indecency. A person can also force another person to witness an act of gross indecency or use sexually derogatory words. 

Rape is the most serious form of sexual assault with grave punishments. This occurs when intercourse takes place without consent. The use of a weapon or the threat to use a weapon during the offence is seen as aggravated sexual assault.   Sexual assault cases are heard in a district court, and these types of cases can introduce a maximum sentence of 14 years imprisonment. The court may order an extended imprisonment sentence for aggravated sexual assault. 

Matters to do with assault, whether committed intentionally or recklessly by the accused, have serious consequences. An assault lawyer has the expertise, knowledge and experience to achieve the best possible outcome for anybody accused of assault. If you are involved in a common assault case, consulting with a legal professional is the best strategy for defence. An assault lawyer understands the legal process involved in assault-related cases, and they understand the types of assault charges. 

It is important to get professional and competent advice for assault charges from experienced criminal lawyers in the very early stages of a criminal assault charge. For expert criminal defence lawyers contact Lyons Law Group, one of Sydney’s top criminal law firms.