
Common assault is a criminal offence and one of the most frequent assault charges prosecuted in NSW. A scuffle or an argument can result in common assault charges. If a person harms another person, causing injuries that do not amount to actual bodily harm, it may be common assault. The offence of Common assault is contrary to section 61 Crimes Act 1900 (NSW) and carries as a maximum a 2-year jail sentence. In NSW, the offence is a ‘Table 2 Offence’, which means common assault charges are mostly dealt with at the Local Court unless the prosecution decides to prosecute the charge at the District Court.
Sentence options for Common Assault
If a person is found guilty of common assault, the Court will consider different factors to determine the seriousness of the offence and subjective factors of the offender. For instance, if it’s the person’s first offence, the Court may afford the person some leniency in sentencing. In NSW, an offender can be sentenced for a common assault as follows:
- A Dismissal,
- A Conditional release order with or without conviction for a period of up to 2 years,
- A conviction only,
- A fine of up to $5,500,
- A Community Correction Order for a period of up to 3 years,
- An Intensive Corrections Order for a period of up to 2 years,
- Gaol for a period of up to 2 years.
What is Common Assault DV T2?
The common assault charge becomes Domestic Violence (DV) related if the complainant and the accused are or were in a domestic relationship. The penalty for Common Assault DV T2 is the same as common assault; however, the Courts treat DV offences as more serious in the sentencing exercise. Like common assault, Common Assault DV T2 is usually prosecuted at the Local Court.
Defences to Common Assault
There are a range of defences available at law for common assault, and the following three are common:
Self-defence
According to section 418 Crimes Act 1900 (NSW), a person cannot be criminally responsible if they carry out the conduct constituting the offence in self-defence. A person can use self-defence to protect himself or herself, protect property from unlawful taking, or prevent criminal trespass.
In order for self-defence to be raised there must be evidence capable of supporting a reasonable doubt in the mind of the tribunal of fact as to whether the prosecution has excluded self-defence. The onus of raising self-defence is on the defendant.
Duress
The defence of Duress is applicable when the person’s conduct results from a threat that forced them into committing the offence.
A person acts under duress, and therefore will not be held to be criminally responsible if that person’s actions were performed:
- because of threats of death or really serious injury to them or a member of their family,
- being threats of such a nature that a person:
- of ordinary firmness and strength of will, and
- of the same maturity and sex as the accused, and
- in the accused’s position,
- would have given in to them and committed the crime demanded of them.
Defence of Lawful Correction
According to section 61AA Crimes Act 1900 (NSW), the defence of Lawful Correction is available for parents or a person acting in place of a parent to a common assault charge. This applies if the physical force applied is considered reasonable having regard to the age, health, or other characteristics of the child.
Going to Court for a common assault charge? Get help from a common assault lawyer to discuss your options.