Assault Occasioning Actual Bodily Harm


In the ACT, a charge of assault occasioning actual bodily harm carries a maximum penalty of five years’ imprisonment, or seven years for an aggravated form of the offence.

A court can impose any of the following penalties for an assault occasioning actual bodily harm charge:

The Offence of Assault Occasioning Actual Bodily Harm

The offence of assault occasioning actual bodily harm is contained in section 24(1) of the Crimes Act 1900 (ACT) which states:

“A person who assaults another person and by the assault occasions actual bodily harm is guilty of an offence punishable, on conviction, by imprisonment for 5 years.”

However, for an aggravated offence (Section 24(2) of the Crimes Act), the maximum penalty is imprisonment for 7 years.

Section 48A of the Crimes Act provides that the offence is an aggravated offence if it was committed against a pregnant woman; and the commission of the offence caused the loss of, or serious harm to, the pregnancy; or the death of, or serious harm to, a child born alive as a result of the pregnancy.

However, the offence is not an aggravated offence if the defendant proves, on the balance of probabilities, that the defendant did not know, and could not reasonably have known, that the woman was pregnant.

If the prosecution intends to prove that the offence is an aggravated offence, the relevant factors of aggravation must be stated in the charge.

This definition of “aggravated offence” is much different to that which applies in NSW, where committing an assault occasioning actual bodily harm in company with another person leaves the defendant exposed to the seven-year penalty. In the ACT, that would be treated as an “aggravating feature” of the five-year offence.

What Actions Might Constitute Assault Occasioning Actual Bodily Harm?

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. The case of R v Donovan [1934] 2 KB 498 at 509 states that the injury does not need to be permanent, but “must be more than merely transient or trifling.”

What the Police Must Prove

To convict you of assault occasioning actual bodily harm, the police must prove each element of the offence beyond reasonable doubt. That is:

That you;

  • Intentionally;
  • Assaulted a person or persons;
  • That caused an injury or injuries amounting to actual bodily harm.

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 its discretion not to convict you of the offence.

Statistics from the ACT sentencing database reveal that from 1 July 2012 to 30 April 2016, less than 1 in 20 people found guilty of assault occasioning actual bodily harm received no conviction. Almost 27 per cent of people found guilty immediately went to prison with slightly less than half of them having their sentences partially suspended. Another 22 per cent received fully suspended prison sentences. Almost 43 per cent were placed on Good Behaviour Orders.

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 by way of a Non-Conviction Order, there will be no fine, but there may be court costs (currently of $78).

What Are the Consequences Of A Conviction?

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 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. 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 depending on the circumstances; 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.

Possible Defences for Assault Occasioning Actual Bodily Harm

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

  • self-defence;
  • Self-defence of another;
  • accident;
  • duress;

Which Court Will Hear Your Matter?

Because assault occasioning actual bodily harm carries a maximum penalty of a prison sentence of not longer than five years, the Prosecution has the ability to unilaterally elect to keep it in the Magistrates Court, where the maximum penalty that can be imposed is two years.

If the Prosecution does not make such an election, the Defence can still consent to the matter being dealt with in the Magistrates Court, rather than having to be committed to the Supreme Court where the matter would be before a judge and jury, if contested.

Your lawyer can negotiate with the Prosecution about the correct charges that should be brought, and the correct court for them to be heard in.

WHERE TO NEXT?

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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