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Assaulting a police officer in their execution of duty

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

In NSW, assaults against Police Officers are taken extremely seriously. A charge of assaulting a police officer in their execution of duty carries a maximum penalty of 14 years imprisonment.

In NSW, a court can impose any of the following penalties for an assault police officer in execution of duty causing actual bodily harm charge.

THE OFFENCE OF ASSAULTING A POLICE OFFICER IN THE EXECUTION OF THEIR DUTY:

Section 60 of the Crimes Act 1900 provides for a number of offences relating to police officers in the execution of their duty. The charge that will be laid will depend on two things: 1) whether the assault occurred as part of a public disorder; and 2) the injury that the officer sustained.

Subsection (1) of that section states: “A person who assaults, throws a missile at, stalks, harasses or intimidates a police officer while in execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years.”

Subsection (1A) contains an aggravated offence relating to public disorder, which states: “A person who, during a public disorder, assaults, throws a missile at, stalks, harasses or intimidates a police officer while in execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 7 years.”

Subsection (2) contains an aggravated offence, if the officer sustained actual bodily harm, which states: “A person who assaults a police officer while in execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years.”

Subsection (2A) contains an aggravated offence relating to public disorder, where the officer sustained actual bodily harm, which states: “A person who, during a public disorder, assaults a police officer while in execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 9 years.”

Subsection (3) contains an aggravated offence, if the officer sustained a wound or an injury amounting to grievous bodily harm, which states: “A person who by any means: (a) wounds or causes grievous bodily harm to a police officer which in the execution of the officer’s duty; and (b) is reckless as to causing that actual bodily harm to that officer or any other person; is liable to imprisonment for 12 years.”

Subsection (3A) contains an aggravated offence relating to public disorder, where the officer sustained a wound or an injury amounting to grievous bodily harm, which states: “A person who by any means during a public disorder: (a) wounds or causes grievous bodily harm to a police officer which in the execution of the officer’s duty; and (b) is reckless as to causing that actual bodily harm to that officer or any other person; is liable to imprisonment for 14 years.”

WHAT ACTIONS MIGHT CONSTITUTE ASSAULTING AN OFFICER IN EXECUTION OF THEIR DUTIES?

Whilst the slightest touch may technically be 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, pushing or spitting on a Police Officer would constitute an assault.

There are circumstances in which an offence under this section can be made out even if the officer was not on duty at the time. These are:

  • If the assault occurred as a consequence of or in retaliation for actions taken whilst the officer was in execution of their duty;
  • If the assault occurred because that person is a police officer.

Examples of offences under this section, include:

  • Kicking, punching or pushing a police officer to stop them arresting you or someone you know;
  • Threatening a police officer who is arresting you or interviewing you as part of an investigation; and
  • Seeking out, and threatening or assaulting, a police officer when they are off duty.

WHAT THE POLICE MUST PROVE:

To convict you of an offence under section 60(1), the Police must prove beyond reasonable doubt that you:

  • Assaulted; threw a missile at; stalked; harassed or intimidated a person;
  • That person was a police officer; and
  • That officer was in the execution of their duty at the time of the assault.

To convict you of an offence under section 60(1A), the Police must also prove that the assault occurred during a public disorder.

To convict you of an offence under section 60(2), the Police must also prove that the action or assault caused actual bodily harm to the Police Officer.

To convict you of an offence under section 60(2A), the Police must also prove that the assault occurred during a public disorder and caused actual bodily harm to the Police Officer.

To convict you of an offence under section 60(3), the Police must also prove that the assault caused an injury that would amount to wounding or grievous bodily harm.

To convict you of an offence under section 60(3A), the Police must also prove that the assault occurred during a public disorder and caused an injury that would amount to wounding or grievous bodily harm.

DEFENCES TO ASSAULT OFFICER IN EXECUTION OF THEIR DUTY:

The common ways to enter a not guilty plea and defend the charge are:

  • To argue that you did not believe, and could not reasonably be expected to believe, that the person was a Police Officer. At minimum, you would have to show that they were not in uniform and did not identify themselves as a police officer. If you are able to show an honest and reasonable belief that the person was not a police officer, the reasonableness of your actions will be assessed through that viewpoint.
  • To argue that the Police Officer was not acting in the execution of their duty.

It may also be possible to raise the defences of Necessity; Self-Defence or Duress as the reason for your conduct.

WHICH COURT WILL HEAR YOUR MATTER?

Offences under subsections (1) and (1A) are Table 2 Offences. That is, the matter will be dealt with in the Local Court unless the Prosecution elects to have the matter dealt with in the District Court.

Offences under subsections (2) and (2A) are Table 1 Offences. That is, the matter will be dealt with in the Local Court unless either the Prosecution or the Defence elect to have the matter dealt with in the District Court.

Offences under subsections (3) and (3A) are strictly indictable offences. That means, the matter must be finalised in the District or Supreme Court.

If the matter is dealt with in the District or Supreme Court, it will give rise to harsher penalties.


Types of penalties:

Jail: This is the most serious penalty for assault police and involves full time detention in a correctional facility. Read more.

Home Detention: As a result of amended legislation this penalty was repealed on 24 September 2018 as a standalone order but may be imposed as a condition of an Intensive Corrections Order (ICO). 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 Corrections Order (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.

Suspended Sentence: As a result of amended legislation this penalty was repealed on 24 September 2018. 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.

Community Service Order (CSO): As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). 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.

Good Behaviour Bond: As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). 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.

Community Corrections Orders (CCO): A CCO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the Community Corrections Orders (CCO). Additional conditions may be imposed at the discretion of the court, both at the time of sentence and subsequently upon application by a community corrections officer, juvenile justice officer or the offender. Read more.

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

Section 10A: A section 10A is a conviction, with no other penalty attached to it. Read more.

Conditional Release Order (CRO): A CRO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the CRO. Read more.

Section 10: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.


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.

Why Choose Armstrong Legal?

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