Common Assault 

A common assault charge falls under section 61 of the Crimes Act 1900. Although this is the least serious assault charge it is also the most common, and if the assault occurs in a domestic setting a domestic AVO will also be issued. Although a common assault charge is relatively minor it can result in a term of imprisonment for up to two years.

There are two ways to commit a common assault; first through actual physical contact, which is commonly referred to as ‘battery’, and second through conduct that creates in the victim a fear of imminent physical harm. This second type of assault captures any type of behaviour that can lead a person to be fearful for their safety, and does not require physical contact or harm caused.

There is a misconception that ‘assault’ refers to one person striking another often committed in anger. In fact any unwanted physical contact, including an unwanted touch between two people in a relationship, can constitute an assault and especially in a domestic setting these lines can be easily blurred.

Another important aspect of common assault is the issue of intention. Although there may have been no intention to cause harm, or to create a fear of imminent harm, the prosecution only needs to make out that the accused person behaved ‘recklessly’ both in their actions and in their consideration of whether these actions could constitute as an assault on the victim.

Assault Occasioning Actual Bodily Harm

Assault occasioning actual bodily harm falls under section 59 of the Crimes Act 1900 and includes any person who assaults a person, and thereby occasions actual bodily harm. A related charge is ‘assault occasioning actual bodily harm in company’, and this is considered an ‘aggravated’ (more serious) offence. These charges can lead to a prison term of up to 5 years and 7 years respectively. However, if the charge is finalised in the Local Court , the maximum penalty is imprisonment for two years.

‘Actual bodily harm’ as a legal concept requires an injury that, although not resulting in permanent injury, may be considered more than ‘merely transient or trifling’. Examples include bruising, scratches and in some cases, even substantial psychological harm.

Although the accused may not have intended to cause the extent of harm that resulted, merely having an intention to assault the victim, or behaving recklessly in a manner that could likely result in harm, can satisfy a verdict of guilty.

Reckless Grievous Bodily Harm or Wounding

More serious charges for assault include reckless wounding, and recklessly causing grievous bodily harm, which both fall under section 35 of the Crimes Act 1900. The difference between the two charges relates to

the type of injury sustained. Reckless wounding or causing GBH ‘in company’, meaning in the company of another person or persons, is considered an ‘aggravated’ assault (more serious) and carries a longer term of imprisonment for both charges.

Reckless wounding carries a maximum sentence of 7 years, or 10 years ‘in company’. Recklessly causing GBH carries a maximum sentence of 10 years, or 14 years ‘in company’. A type of injury will be considered ‘wounding’ where there has been a breaking of the skin, either by a weapon or implement or alternatively, by other means. The term ‘Grievous Bodily Harm’ is defined under section 4(1) of the Crimes Act, and refers to any permanent or serious disfigurement of the person, including a grievous bodily disease. Courts will look at the seriousness of the attack, the circumstances, and the seriousness of injuries when assessing an assault charge.

As noted above, the prosecution does not need to prove an outright intention to cause wounding or harm, only an intention to assault the victim in a way that could have resulted in actual bodily harm being inflicted. This threshold has been lowered only recently, and as a result Courts only have to identify in the accused a knowledge that their actions could cause some type of harm to the victim, even if the extent of the injuries do not reflect the actions that led to such harm occurring.