Common Assault

Every state and territory of Australia has an offence of common assault. This is a summary offence of assault, which does not require the victim to suffer harm or even for physical contact to be made between the offender and the victim. This page deals with the common assault offences in the different states and territories of Australia.

What is common assault?

A person commits common assault if they unlawfully

• Apply force to another person without the other person’s consent; or
• Cause another person to apprehend the immediate application of force to them without their consent.

The offence may consist of a push, punch or slap. It may also consist of an act that does not involve physical touch, such as raising a fist to another person as if to punch them or throwing an object in a person’s direction.

Penalty for common assault

In all jurisdictions, a person can be sentenced to a term of imprisonment for this offence. However, these offences are also often dealt with by non-custodial sentences including fines, community based orders and good behaviour bonds.

Will I get a conviction?

If you are found guilty of this offence, it is likely that a conviction will be recorded.

If there are strong reasons why a conviction should not be recorded, your lawyer can ask the court to consider imposing a finding of guilt without conviction. The court may be able to do this depending on the penalty that it imposes. Some penalties can be imposed without recording a conviction, while others (such as imprisonment) require a conviction to be recorded.

Jurisdiction

Common assault is a summary offence and is finalised in the Magistrates Court.

Common assault in Queensland

In Queensland, the offence is governed by section 335 of the Criminal Code 1899. It can attract a penalty of up to three years imprisonment.

Common assault in New South Wales

In New South Wales,  common assault is governed by section 61 of the Crimes Act 1900. It carries a maximum penalty of two years imprisonment.

Common assault in Victoria

In Victoria, the offence is governed by section 23 of the Summary Offences Act. It carries a penalty of up to three months imprisonment or a fine of 15 penalty units.

Common assault in the ACT

In the ACT, common assault is governed by section 26 of the Crimes Act 1900. It carries a maximum penalty of two years imprisonment.

Common assault in Western Australia

In Western Australia, common assault is governed by section 313 of the Criminal Code. It attracts penalty of up to 18 months imprisonment or a fine of up to $18,000.

Defences to common assault

A person who is charged with common assault may have a range of defences available to them. Some of these are outlined below.

The defence of self-defence

A person is not guilty of an offence if they use force against another person is self-defence or in defence of another person or of property, provided the level of force used is proportionate to the threat faced.

The defence of domestic discipline

A person is permitted to use force to discipline a child provided the person is the child’s parent or is acting for the child’s parent and the level of force used is reasonable in the circumstances.

The defence of duress

A person is not guilty of an offence if they were acting under duress. A person acts under duress if they act because of fear that another person will carry out a threat if they do not comply with the other person’s demands.

The defence of mental impairment

A person is not guilty of an offence if they were mentally impaired and either could not understand or could not control their actions.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.