This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
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.
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 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 Act), the maximum penalty is imprisonment for 7 years.
Section 48A of the 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 a person of assault occasioning actual bodily harm, the police must prove each element of the offence beyond a reasonable doubt. That is that they:
- intentionally;
- assaulted a person or persons;
- that caused an injury or injuries amounting to actual bodily harm.
Will I Get A Criminal Record?
A criminal conviction is highly 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, 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.
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:
- that the assault was committed in self-defence;
- that the assault was an accident;
- that the assault was committed under 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.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.