Assault Occasioning Bodily Harm (WA)

In WA, there are a number of assault offences including common assault, assault with intent, serious assault, and assault occasioning bodily harm. These offences are set out in the Criminal Code Act Compilation Act 1913.

Assault occasioning bodily harm in Western Australia

This page deals with assault occasioning bodily harm (AOBH) in Western Australia.

Maximum penalty for AOBH

The offence of assault occasioning bodily harm is contained in section 317 of the act.

When the offence is dealt with in a higher court (on indictment) it carries a maximum penalty of imprisonment for five years, or imprisonment for seven years if it is committed under circumstances of aggravation or under circumstances of racial aggravation (detailed below).

When the offence is finalised by a magistrate (in the summary jurisdiction), the maximum penalty is two years imprisonment or a fine of $24,000; or three years imprisonment or a fine of $36,000 if the offence is committed under circumstances of aggravation or racial aggravation.

What is bodily harm?

Assault occasioning bodily harm is an assault that causes the victim harm that interferes with their health or comfort. The harm does not have to be long-term and does not have to require medical treatment.

AOBH is more serious than common assault. A common assault does not require the victim to have sustained an injury. AOBH is less serious than grievous bodily harm, which is harm that is likely to endanger the victim’s life or to cause permanent injury to their health.

Circumstances of aggravation

Under section 221 of the Criminal Code Act Compilation Act 1913, an assault occurs under circumstances of aggravation if:

• The offender and the victim are in a family relationship;
• A child is present when the offence occurs;
• The offence involved a breach of an order;
• The victim is aged over 60.

Circumstances of racial aggravation

Under section 80I of the Criminal Code Act Compilation Act 1913, an offence occurs under circumstances of racial aggravation if:

• the offender shows hostility towards the victim based on their membership of a racial group; or
• the offence is motivated by hostility towards members of a racial group.

Jurisdiction

AOBH an either-way offence, meaning it may be dealt with in the Magistrates Court or on indictment in the Supreme Court. A different maximum penalty applies in each jurisdiction (as detailed above).

Defences to assault occasioning bodily harm

A person charged with assault occasioning bodily harm may have a range of legal defence available to them.

Self-defence

A person is not guilty of any assault offence if the act was committed while they were defending themselves or another person. A person may secure an acquittal on the basis of self-defence if they reasonably believed their actions were necessary in self-defence and their conduct was proportionate to the degree of threat that they believed they were facing.

Mental impairment

A person is not guilty of an offence if they were mentally impaired at the time of the alleged offence and as a result, they could not understand the nature of the act or they could not understand that the act was wrong.

Duress

A person is not guilty of an offence if they acted under duress. A person acts under duress if they carry out an act only because of fear if they do not comply with the demands of another person. To be found not guilty on the basis of duress, a person must have been facing a threat that was serious enough that an ordinary person in similar circumstances would have yielded.

Immature age

A person is not guilty of assault occasioning bodily harm if they were under the age of criminal liability when they committed the act. A person may also be found to be not guilty based on immature age if they were under 14 when the alleged offence occurred and were insufficiently mature to understand the nature of their conduct.

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