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 With Intent to Commit an Indictable Offence
In Victoria, the maximum penalty for the offence of assault with intent to commit an indictable offence is 5 years’ imprisonment. The offence is found in Section 31(1)(a) of the Crimes Act 1958. It is an indictable offence that may be heard summarily (in the Magistrates Court).
Am I guilty of assault with intent to commit an indictable offence?
To find a person guilty of assault with intent to commit an indictable offence, the police must prove each of the following elements beyond a reasonable doubt:
- The accused assaulted/threatened to assault another person;
- The assault resulted in the complainant being injured or in pain (or in fear of being injured or in pain);
- They acted with the intention to commit an indictable offence; and
- They acted without lawful excuse.
Assault
For the purposes of this offence, assault is the direct or indirect application of force to the body of, or to the clothing or equipment worn by, a person where the application of force is:
- Without lawful excuse; and
- With intent to inflict, or being reckless as to the infliction of, bodily injury, pain, discomfort, damage, insult or deprivation of liberty.
The application of force includes the application of heat, light, electric current or any other form of energy to the complainant, as well as the application of matter in solid, liquid or gaseous form.
What is an Indictable Offence?
Indictable offences are serious offences that may be heard on indictment before a judge of the Supreme Court or County Court. Some indictable offences may also be heard summarily (in the Magistrates Court) with the consent of the defence and prosecution.
Indictable offences in Victoria include theft, rape, robbery, and murder and manslaughter.
What Actions Might Constitute an Assault with Intent to Commit an Indictable Offence
A person may be charged with an assault with intent to commit an indictable offence if they:
- Hit a person with the intent of stealing their bag;
- Pull a person to the ground with the intent of raping them;
- Assault a person with the intent to cause them grievous bodily harm.
In each of the above situations, there is a more serious offence that a person could be charged with if their intentions were in fact carried out. A person who assaults a person and then steals their bag could be charged with robbery. A person who pulls another person to the ground and attempts to rape them, could be charged with attempted rape (or with rape if the rape was actually carried out). A person who assaults a person and inflicts grievous bodily harm could be charged with causing grievous bodily harm.
The offence of assault with intent to commit an indictable offence exists to cover the situation where the accused’s intent was not in fact achieved.
Possible Defences
A person charged with assault with intent to commit an indictable offence may argue in their defence that:
- They did not intend to commit an indictable offence;
- Their actions were accidental and therefore do not amount to an assault.
Which Court Will Hear Your Matter?
So long as the accused consents, the charge will generally be heard in the Magistrates’ Court of Victoria. If there are other more serious charges or if the accused does not consent to the Magistrates’ Court hearing the matter, the matter can be committed to the County Court of Victoria.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.