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Assault occasioning actual bodily harm

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton
Craig Robinson
Andrew Tiedt
Andrew Fraser
Russell Boyd
Mariah Maltezos
Sarah Marinovic
Michael Hempsall
Will Del Din
Will Del Din
Trudie Cameron

In NSW, a charge of assault occasioning actual bodily harm carries a maximum penalty of five years imprisonment.

In NSW, a court can impose any of the following penalties for an assault occasioning actual bodily harm charge:

You can find a brief description of each of these penalties at the bottom of this page.

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for an assault occasioning in actual bodily harm might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover a conviction for an offence of violence can completely rule out certain career paths, such as teaching and a range of government employment options. Violent offences may also result in sentences that include imprisonment, even where an individual has no previous convictions.

An assault occasioning actual bodily harm is a more serious charge than a common assault charge. It can be further complicated if there are aggravating factors, for example, if the offence was committed in the company of another. It is important to get legal advice at an early stage to ascertain precisely what the consequences of a conviction may be and whether you have a defence to the charge. It is very important that you obtain legal advice before you take part in any police record of interview. Call us on 1300 168 676 for urgent advice.


THE OFFENCE OF ASSAULT OCCASIONING ACTUAL BODILY HARM

The offence of assault occasioning actual bodily harm is contained in section 59 of the Crimes Act 1900 which states:

  1. Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years.

The offence is aggravated if it is committed in the company of another individual, which would carry higher penalties. In that case, section 59(2) of the Crimes Act provides for the more serious offence:

  1. A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years.

WILL I GET A CRIMINAL RECORD FROM AN ASSAULT OCCASIONING ACTUAL BODILY HARM CHARGE?

Yes. A criminal conviction is very likely, given that the offence involves an assault that resulted in an injury. The starting point for the Sentencing Court is the recording of a conviction together with the imposition of other penalties. However, there is always a possibility that the Court may choose to exercise their discretion not to convict you of the offence.

WHAT ACTIONS MIGHT CONSTITUTE ASSAULT OCCASIONING ACTUAL BODILY HARM

  • Whilst the slightest touch might constitute an ‘assault’ in the basic sense of the word, the Police will generally not charge a person unless there is a significant degree of force applied. For example, punching, kicking or even pushing another person would constitute an assault.
  • In addition, the Police must show that the assault directly caused actual bodily harm to the other person. This means that a visible injury needs to be present to show that bodily harm occurred. For example, a bruise or a scratch would be sufficient in meeting those criteria.
  • There is also case law that defines the term actual bodily harm. This would include any injury that would interfere with another individual's health or comfort. McIntyre v R states that the injury does not need to be permenant, but "must be more than merely transient or trifling."

CAN I PAY A GREATER FINE TO AVOID BEING CONVICTED?

No, it is not possible to bargain with the court that you would pay a larger fine to avoid a criminal conviction. If the court deals with you under a section 10 non conviction order there will be no fine, but there may be court costs.

WHICH COURT WILL HEAR YOUR MATTER?

This offence is a Table 2 offence. This means that the matter will likely be dealt with in the Local Court, however, the DPP can elect to have the matter dealt with in the District Court. If they do so, this will give rise to harsher penalties.

WHAT THE POLICE MUST PROVE

To convict you of an Assault occasioning actual bodily harm, the prosecution must prove each of the following matters beyond a reasonable doubt:-

  • You struck, touched or applied force to another;
  • You did so intentionally or recklessly;
  • Without consent or lawful excuse; and
  • That action caused bodily harm to the other person.

Possible defences for assault occasioning actual bodily harm:

Possible defences to a assault occasioning actual bodily harm charge include but are not limited to:


Types of penalties:

Jail for an assault occasioning actual bodily harm charge: This is the most serious penalty for the charge of assault occasioning actual bodily harm and involves full time detention in a correctional facility. Read more.

Home Detention for an assault occasioning actual bodily harm charge: Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring. Read more.

Intensive correction order for an assault occasioning actual bodily harm charge (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.

Community service order for an assault occasioning actual bodily harm charge. (CSO): This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.

Suspended sentence for an assault occasioning actual bodily harm charge: This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.

Good behaviour bond for an assault occasioning actual bodily harm charge: This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.

Fines for an assault occasioning actual bodily harm charge: When deciding the amount of a fine for a assault occasioning actual bodily harm charge the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Section 10 for an assault occasioning actual bodily harm charge: avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.


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If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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