Assault – Assault Occasioning Actual Bodily Harm Charges.
Crimes Against The Person
Assault – There are numerous offences, known as “crimes against the person”, which a person can be charged for breaching. These offences are contained in Part 3 of the Crimes Act 1900 (NSW). Crimes against the person include assault, indecent assault, rape and murder. The law in regard to all of these areas is complex, and so only the different types of assaults will be examined.
Under the Crimes Act 1900, a person may be charged with recklessly causing grievous bodily harm or wounding (s 35), causing wounding or grievous bodily harm with intent (s 33), causing grievous bodily harm (s 54), assault occasioning actual bodily harm (s 59), and common assault (s 61).
Assault offences carry heavy penalties, including large fines, imprisonment, and the recording of a criminal conviction. It is important that you seek the advice of a professional criminal lawyer if you are charged with any of these offences. They may assist you in keeping the offence off your criminal record, and can help you avoid a prison sentence and large fines in some circumstances.
A recent report compiled by the NSW Bureau of Crime Statistics and Research shows that, over the past 5 years, domestic assault has increased by 2.7%. While non-domestic assault has decreased,sexual assault has remained relatively unchanged, but indecent assault has increased by 4.2%
Statistics show that between July 2013 and June 2014, there were over 60,000 recorded criminal assaults. While sexual and indecent assaults only numbered approximately 11,000 in the same year, the statistics suggest that crimes against the person are still prevalent in NSW.
Under section 61 of the Crimes Act 1900, a person may be liable for up to 2 years imprisonment if they commit common assault. This is a broader provision than other assault provisions in the Crimes Act. It does not need to occasion “actual bodily harm”, meaning threats and intimidation which may lead another person to “apprehend immediate and unlawful violence” are covered under this provision (see, for example, Pemble v R).
To make out a case of common assault, like most criminal offences, the prosecution must show that the accused possessed the actus reus (guilty act) and mens rea (guilty mind). This means the accused must have caused the victim to fear some unlawful physical contact, and have intended the victim to fear that contact. There may also be scope for the accused to have “recklessly” caused the victim to fear for their safety, by not intending the assault, but continuing with it once they have realised the victim fears for his or her safety.
Common assault is characterised by multiple elements. A professional criminal solicitor may be able to raise some defences if you have been charged under section 61. There are issues of immediacy, proximity, words or conduct, intention and recklessness that a criminal defence lawyer can raise which may cast doubt on the prosecution’s case.
These elements are intricate and detailed, so it is important that you seek the help of a good criminal defence lawyer to help you with your matter. They may be able to give you advice, and raise a strong defence to your charge. If you have been charged with common assault, it is important that you contact a criminal lawyer immediately.
Actual Bodily Harm
Actual bodily harm is any physical injury to a person (which need not be permanent), or psychiatric injury that is not merely emotions, fear or panic. Those may be covered by section 61.
The sections which make up actual bodily harm offences are sections 59 (assault occasioning actual bodily harm), and 35 (where the assault involves wounding).
To make out the offence, the prosecution must show that there has been an assault, and that the assault has resulted in actual bodily harm. Once again, there must be an intention to assault (mens rea) and the assault must have taken place (actus reus).
Where a victim has been “wounded”, that is, where they have suffered a laceration to the skin, the accused may also be charged under section 35.
The penalty for a section 59 offence is a maximum of 5 years imprisonment, or 7 years where the offence takes place in front of another person. The penalty for a section 35 offence is a maximum of 7 years imprisonment, or 10 years where the offence takes place in front of another person.
Grievous Bodily Harm
Grievous bodily harm (GBH) is defined at common law, and under section 4 of the Crimes Act. Under the common law, GBH is any “really serious injury”, whether it has any temporary or permanent effect (see Haoui v R). Under the Crimes Act, GBH is any “permanent or serious disfigurement of the person”, as well as any infliction of disease or harm to a pregnant woman causing the loss of a foetus.
There are multiple GBH provisions in the Crimes Act, including section 35 (reckless grievous bodily harm or wounding), section 33 (wounding or grievous bodily harm with intent), and section 54 (causing grievous bodily harm).
Sections 33 and 35 involve the same elements as those discussed under actual bodily harm. However, under section 35, the accused need only be “reckless” as to causing GBH, so the penalty is lower (10 years maximum imprisonment). Under section 33, the accused must be shown to have intended to cause GBH to another, and so the maximum penalty for intentionally causing GBH is 25 years maximum imprisonment.
Section 54 provides that any person who, by any unlawful or negligent act or omission, causes GBH to another person, is liable to 2 years maximum imprisonment. This section is intended to charge those whose unlawful act or negligence results in a person suffering GBH. For example, this may be the case where a burglar inadvertently causes GBH to a homeowner, not intending to cause GBH, but having caused it in the pursuit of an unlawful act – burglary.
Under sections 58 and 60, a person may also be charged with assaulting a police officer (5 years imprisonment), and causing GBH to a police officer (up to 14 years imprisonment).
As can be seen, GBH can be a very serious charge, and may result in a prison sentence of 25 years if found guilty. If you have been charged under sections 33, 35 or 54, It is imperative that you seek expert legal advice from a criminal defence lawyer immediately.
They may be able to raise a defence of self-defence, where the accused has carried out the offence to protect himself or herself. The conduct must be “necessary” to: defend himself or herself; prevent himself or herself being unlawfully deprived of liberty; protect property; or to prevent criminal trespass.
In some circumstances, a criminal defence lawyer may be able to raise the defence of consent, as an assault with consent is not an assault. Consent is largely based on public values, and so some consensual assaults may be lawful, while others may not. For example, consent is not a defence to a consensual fight with intent to cause GBH, and the accused may still be guilty of assault.
In addition to these defences, an experienced criminal lawyer may be able to raise issues in the prosecutions case. As mentioned above, a criminal defence lawyer may be able to raise issues with intent, evidence, immediacy, proximity, recklessness, negligence and conduct. If you have been charged with Assault or one of the above offences, do not hesitate to contact our experienced criminal lawyers who specialise in Assault charges, fines & penalties to get the best possible representation for your matter.
George Sten Criminal Lawyers Sydney are available 24 hours for urgent legal advice. Talk to our Assault Lawyers Today!
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