ASSAULT - INTRODUCTION
An assault is any act, and not a mere omission to act, by which a person intentionally, or recklessly, causes another to apprehend immediate and unlawful violence (R v Burstow; R v Ireland  1 AC 147). Part 3 of the Crimes Act 1900 (NSW) (‘Crimes Act’) contains provisions, which stipulate various ways in which a person who creates apprehension of an imminent harm or offensive contact with another may be charged.
Unlike battery, the purpose of an assault is to threaten an individual as opposed to the infliction of harm. Thus, it is the fear, which is the gist of assault. Consequently, a threat of violence without physical contact is sufficient to constitute assault (common assault under s61 of the Crimes Act). However, in accordance with the Crimes Act, a charge of assault may also occur under circumstances where by a person occasions actual bodily harm (s59), recklessly causes grievous bodily harm or wounding (s35), intentionally causes wounding or grievous bodily harm (s33), causes grievous bodily harm by an unlawful act or negligence (s54).
Assault - STATISTICS AND LOCATIONS
There has been a steady increase in the number of assaults over the past year. In addition to the types of assaults noted above, it is now evident that drunken assaults which include fatal hits such as coward punches, one hit punches and king hits are now on the rise. Notably, a large proportion of such assaults within NSW occur in Kings Cross. In its media release, the New South Wales Bureau of Crime Statistics and Research states that there were 213 assaults in Kings Cross from March 2010 to March 2011. Although, the numbers of alcohol-induced attacks have dropped from the previous year, authorities note that the 500-meter radius surrounding the Kings Cross Railway Station still remains a danger zone.
NOTABLE ASSAULT CASES
Two-deaths, both in Kings Cross have caused significant uproar in the need for change surrounding assault laws. The first incident, involved the death of 18-year old Thomas Kelly on the 7th of July 2012, who was punched in the head while walking through the Cross with his girlfriend. The second involved the death of Daniel Christie, who was punched on the 31st of December 2013. Daniel died as a result of a punch-induced skull fracture, following 11 days on life-support.
On the 21st of January 2014, NSW Premier Barry O'Farrell announced that both the Lower and Upper Houses of parliament had voted in favor of legislation during a special sitting of State Parliament. Significantly, along with changes such as lockouts from 1:30 am and the closure of bottle-shops from 10 pm, there is also an eight-year minimum non-parole sentencing for alcohol or drug-related assaults that result in death. Additionally, serious assault maximum penalty increased by two years, with mandatory minimum sentences. These sentences are in addition to “on-the-spot” fines for disorderly behavior, which may now cost up to A$1,100. The police can immediately ban identified 'troublemakers' from the CBD/Kings Cross areas.
WHAT DOES THIS MEAN?
Common assault (s61) in NSW carries a maximum penalty of 2-year imprisonment. This sort of assault charge occurs when individuals are charged where one assaults another person but does not cause an injury amounting to bodily harm or grievous bodily harm. A court can impose any of the following penalties for a common assault charge: prison sentence, periodic detention, intensive correction order (previously periodic detention), suspended sentence, community service order (CSO), good behavior bond and/or a Fine. A charge for common assault may also be proven and dismissed (s10; non-conviction). Similarly, a charge of assault occasioning actual bodily harm (s59) carries a maximum penalty of five years imprisonment, with similar powers to the court. Possible defences to a common assault charge include but are not limited to: self-defence, self-defence of another, provocation, accident, duress, and necessity.
Where reckless wounding occurs as denoted by s35(4) (i.e. A person who: wounds any person, and is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence), the offender may be imprisoned for a maximum of 7 years. Where the offence is committed in company with another person (s35(3), the maximum penalty is 10 years imprisonment). Individuals are charged where a person wounds another person causing actual bodily harm but does not an injury amounting to grievous bodily harm. In order to prove an injury amounting to recklessly causing grievous bodily harm (s35(2)), the court must be satisfied beyond reasonable doubt that the offender sought to induce injury (the physical aspect) and did so recklessly (the mental aspect). This offence carries a maximum penalty of 10 years alone and 14 years if committed in the company of others. It is to be noted that defences such as duress, necessity, and self-defence are available for all s35 offences.
In NSW, the charge of Intent to Cause Grievous Bodily Harm (s33) charge carries a maximum penalty of 25 years imprisonment. People are charged with this offence if they assault someone with the intent to cause, and do cause, a very serious injury. If you are convicted of the offence, it will appear on your criminal record and the court can impose any of the following penalties: prison sentence, intensive correction order, suspended sentence, good behavior bond, community service order, fine or a section 10 order dismissing the charge.
Where an unlawful act or negligence has resulted in grievous bodily harm (s54), a maximum period of 2-year imprisonment exists. Possible penalties include: Prison Sentence, and Home Detention amongst others.
Interestingly, minimum mandatory sentences are now in place for one-punch offences in NSW. Following the introduction of "one punch laws", a mandatory minimum penalty of imprisonment for persons that cause of death of another person in particular circumstances exists. The elements of this particular offence are as follows: (a) An assault; (b) By intentionally hitting; (c) With any part of the person’s body or an object held by the person; (d) The assault not being authorised or excused by Law; and (e) The assault causing the death of the other person.
This particular charge is serious in nature for aspects of the crime are treated stricter than charges occasioning manslaughter (Maximum Penalty: 25 years). A person prosecuted for ‘Assault Causing Death’ is liable to imprisonment for 20 years. This increases to 25 years where the assailant is intoxicated. While the definition of "intoxicated" is not clear from the legislation, it indicates that someone with a blood alcohol level of 0.15g/L would be regarded as being intoxicated. Further, ‘Assault Occasioning Death’ whilst intoxicated they face a mandatory minimum non-parole period of eight years. This is significant because the most manslaughter penalties lie between three and six years non-parole.
That is, this law would on average impose a heavier penalty for ‘Assault Causing Death’ than would have been imposed had the offender been prosecuted for the offence of manslaughter.
ASSAULT CHARGES - WHAT SHOULD YOU DO?
If you have been charged with Assault or one of the above offences, do not hesitate to contact our experienced Assault Offence Lawyers, who specialise in Assault charges, fines & penalties to get the best possible representation for your matter. (02) 9261 8640
George Sten & Co Criminal Lawyers Sydney are available 24 hours for urgent legal advice 0412 423 569
The Criminal Defence Lawyers & George Sten & Co has over 40 years experience. www.criminal-lawyer.com.au