In NSW, affray carries a maximum penalty of 10 years imprisonment. People are typically charged with affray if they’ve acted violently or threateningly around other people.
A person can be charged with affray if they use or threaten to use unlawful violence towards another person. This means that a person can be charged if they use physical force against another person, such as punching, shoving or kicking them, or if they threaten to do so. These acts of violence or threats of violence must be serious enough to cause a person of reasonable firmness to fear for their personal safety. In other words, the acts or threats must be serious enough to make an ordinary bystander scared of being injured or harmed by the person charged. This is a question of degree – the more aggressive the threats or the more serious the violence the more likely it is that a person of reasonable firmness would be concerned for their safety.
An offence such as affray can result in sentences that include imprisonment even where an individual has no previous convictions. 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 038 223 for urgent advice.
The Offence of Affray:
The offence of Affray is contained in s 93C of the Crimes Act 1900 and states:
A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years.
What Actions Might Constitute Affray?
Common examples of Affray include:
- Getting into a fight in front of one or more people;
- Yelling and threatening to punch someone;
- Road rage; or
- Participating in a riot.
It is important to remember that there may be consequences other than the penalty imposed by the court. A criminal conviction is serious and can have far reaching consequences, particularly on what you do for a living. Some jobs require you to have no criminal convictions or to hold a licence or authorisation which is dependent on you having a criminal history check. A criminal history can prevent you from working with children, in a hospital, in a bank, at a casino or as a security guard, just to name a few. Potential employers are also more likely to employ a person without any convictions over someone who has even a minor criminal conviction. A criminal conviction can also make it difficult to obtain visas for overseas travel.
Should I Plead Guilty or not Guilty?
You should always seek legal advice before deciding whether to plead guilty or not guilty, especially for a serious charge, such as Affray.
There is no hard and fast rule to whether you should plead guilty or not guilty. Every matter and charge is different, both in the circumstances of the offence and the law that applies to it. Generally, your lawyer will advise you to either:
- Plead not guilty if the prosecution may have difficulty proving the charge of Affray or if a defence is available; or
- Plead guilty if the prosecution is likely to prove the charge of Affray.
What the Police Must Prove?
To convict you of Affray, the prosecution must prove each of the following matters beyond reasonable doubt:
- You used, or threatened to use violence towards another person;
- You intended to use or threaten to use violence;
- Your actions would cause a reasonable person to fear for their personal safety; and
- You did so without lawful excuse.
Possible Defences for Affray
The most common ways to defend this charge are:
- To maintain your innocence if you did not commit the act;
- To argue that you did not use or threaten to use violence;
- To argue that a person of reasonable firmness would not have feared for their personal safety because of your conduct; or
- To raise self-defence, necessity or duress as the reason for your conduct.
Which Court Will Hear Your Matter?
This charge is a “Table 1” offence which means that either the person charged or the prosecution can elect to have the matter dealt with in the District Court. If neither party makes this election the matter will be finalised in the Local Court.
What Will Happen if I Plead Guilty to Affray?
If you committed the offence and do not have a defence you can plead guilty to the charge of Affray. The court then conducts a sentencing hearing and hears submissions from you or your lawyer about the circumstances of the offence, your personal circumstances, any other legal principles that are relevant and what the appropriate penalty might be.
Types of penalties:
Home Detention for an affray charge: 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) for an affray charge: 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 for an affray charge: 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) for an affray charge: 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 for an affray charge: 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) for an affray charge: 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.
Conditional Release Order (CRO) for an affray charge: 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 for an affray 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.
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.