A first time assault is defined as an offender with no prior assault offence or conviction who commits an assault offence against one or more victims. The absence of an assault conviction against an offender charged with assault can be taken as a mitigating factor on sentence because it can therefore reflect good character. This can have the effect of reducing the sentence.
An accused person who is charged with an assault offence who pleads not guilty to defend it can use the absence of an assault offence on their record as a reasons why it is therefore more unlikely that he or she committed the assault offence on this occasion because of their otherwise good character.
Our criminal lawyers Sydney team outline a list of some common first time assault offences and their maximum penalties in New South Wales in this article as a guide.
First Time Common Assault
A first time common assault carries up to two years imprisonment and/or $5,500 fine under section 61 of the Crimes Act 1900 (NSW). Common assault is defined according to law as the intentional and voluntary act of causing either an apprehension of immediate and unlawful violence or the infliction of unlawful force without consent, intentionally or recklessly and without a lawful excuse. This first time assault is usually dealt with summarily which means that it is usually dealt with in the local court.
A first time common assault offence can occur without the application of physical force on a victim so long as the actions cause an apprehension of fear in the victim.
The victim must have feared on reasonable grounds. If the victim's fear is interpreted by the court as unreasonable, then the accused person charged with the first time common assault offence will be acquitted. The reasonableness test is objective and determined by the court after having listened to all the evidence.
A common defence to a first time assault is self-defence. If self-defence is raised on the evidence in court and it shows a reasonable possibility that the accused person committed the common assault in self-defence then it will amount to a lawful excuse, which will result in an acquittal.
If the alleged victim is unaware of the common assault at the time, then there is no assault under the law according to the case of Pemble v R (1971) 124 CLR 107.
First Time Stalk or Intimidate
Intimidation is defined according to law as conduct that amounts to harassment, molestation, an approach that causes fear for safety, or behaviour that causes an reasonable apprehension of injury or violence to a person or damage to their property. Any past pattern of violence can be taken into account by the court when determining if the present alleged conduct amounts to intimidation. Words and action can amount to intimidation in Australia.
Stalking is defined according to law as conduct of following a person or watching or frequenting the vicinity of (or approach to) a person's home, work or business or any place that the victim frequents for social or leisure activity. In determining whether the stalking amounts to stalking according to law, the court can take into account any past pattern of violence by the accused person against the alleged victim.
A first time stalk or intimidation offence carries up to five years imprisonment and/or $5,500 fine under section 13 of the Crimes (Domestic and Personal Violence) Act. This offence occurs when a person stalks or intimidates a person with the intention of causing fear of physical or mental harm. This includes when you know your conduct is likely to cause fear in the victim. There is no need to prove that the victim actually feared physical or mental harm.
Rude or offensive or boorish behaviour on its own does not constitute intimidation according to the case of Mahmoud v Sutherland [2012] NSWCA 306.
First Time Assault Occasioning Actual Bodily Harm
Actual bodily harm is defined as harm or injury calculated to interfere with the health or comfort. This type of assault does not need to be permanent but must be more than merely transient or trifling, as defined in the case of R v Donovan [1934] . Actual bodily is usually a bruise or scratch on any part of the body of a victim.
First time assault occasioning actual bodily harm carries up to 5 years imprisonment and/or $5,500 fine as prescribed by section 59 of the Crimes Act 1900 (NSW). This offence occurs when a person assaults any other person(s) and thereby occasions actual bodily harm.
Actual bodily harm can include psychiatric injury but does not include mere emotions of fear or panic or states of mind that are not themselves evidence of some identifiable clinical condition.
A first time actual bodily harm assault does not ordinarily result in full time imprisonment. The court has other options it can explore before resorting to jail. However, each case will be decided based on its own unique circumstances. It is important to get experienced advice from a criminal defence lawyer.
As discussed earlier, self-defence is a lawful excuse used as a common defence to an assault charge.
First Time Assault Occasioning Grievous Bodily Harm or Wounding
Grievous bodily harm is defined in section 4 of the Crimes Act 1900 (NSW) which means any permanent or serious disfiguring of a person, or any grievous bodily disease or the destruction of the foetus of a pregnant woman, whether or not the woman suffers any other harm (other than in the course of a medical procedure or a termination of a pregnancy in accordance with the abortion Law Reform Act 2019.
Grievous bodily harm encompasses a range of injury and is also defined as really serious injury that does not need to be permanent injury. Common injuries amounting to grievous bodily harm include complex skull fractures, several leg fractures and nerve damage. But an uncomplicated fracture would not necessarily constitute grievous bodily harm on its own.
A first time grievous bodily harm assault carries up to 25 years' imprisonment if it was done with an intention to cause grievous bodily harm pursuant to section 33(1) of the Crimes Act 1900 (NSW). in contrast, if this offence is committed recklessly under section 35(2) of the Crimes Act 1900 (NSW) it carries up to 10 years imprisonment.
Wounding a person carries up to 25 years' imprisonment if done intentionally. In contrast, wounding a person recklessly carries up to 7 years imprisonment pursuant to section 35(4) of the Crimes Act 1900 (NSW).
Wounding is defined as the cutting of the interior lawyer of the skin, namely, the dermis. A cut to the epidermis does not constitute a wound. A common type of wound is a split lip. Internal haemorrhage does not constitute wounding.
As outlined earlier, a lawful excuse to a wounding assault is self-defence, which is a common defence to an assault of this kind.
First Time Choke or Suffocate
A first time choke offence carries up to 5 years imprisonment if it is committed with an intention to choke without consent under section 37(1A) of the Crimes Act 1900 (NSW). A choke committed recklessly that causes the victim to go unconscious, insensible or incapable of resistance carries up to 10 years' imprisonment under section 37(1) of the crimes Act 1900 (NSW). The choke with intent to do so under section 37(1A) is committed without the victim going unconscious, insensible or incapable of resistance.
Intentionally choke is defined as the intentionally application of pressure to the neck so as to be capable of affecting the breath or flow of blood to or from the head. A common choke offence is the application of pressure on the neck causing the restriction of blood flow without restricting breathing or the restriction of breathing.
Self-defence is an available defence under the law and sometimes is used as a lawful excuse for these types of assaults.
First Time Use Carriage Service to Threaten, Harass or Offend
First time threatening with a carriage service offence carries up to 7 years imprisonment under section 474.15(2) of the Criminal Code 1995 (Commonwealth). It is a criminal offence to use a carriage service to threaten to kill or cause serious harm to a person if the threat was intended to cause the other person to fear that it will be carried out.
First Time Resist, Hinder or Assault Police Officer
First time offence of assaulting a police officer or resisting or hindering a police officer who was acting in the execution of their duty carries up to 5 years imprisonment under section 58 of the Crimes Act 1900 (NSW). Heavier penalties are prescribed if the police officer sustains grievous bodily harm or actual bodily harm or wounding as a result of the assault.
Self-defence can and sometimes is raised as a defence to this type of assault.
First Time Affray
A first time affray assault carries up to 10 years' imprisonment prescribed by section 93C of the Crimes Act 1900 (NSW).
Affray is defined as the using or threatening unlawful violence towards another which would cause a person of reasonable firmness present at the scene to fear for their personal safety. This occurs where a hypothetical third person of reasonable firmness had been present at the scene might reasonably be expected to have been terrified from the violence. A person of reasonable firmness does not need to actually be present or to be likely to be present at the scene. An affray can be committed in public or in a private place. If two or more persons use or threaten to use unlawful violence, it is the conduct of them taken together that must be considered in order to amount to affray.
Self-defence is considered a lawful excuse to an affray which if accepted by the court will result in an acquittal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
