Assault is more than physical violence. It includes any act or threat that causes fear of harm, from striking someone to spitting or using threatening gestures. As both a criminal offence and a civil wrong, it can lead to charges, fines, or even imprisonment. This article outlines what constitutes assault and the legal consequences that may follow.
What is an Assault?
The meaning of ‘assault’ under the Criminal Code is quite broad. It includes striking, touching, moving, or applying force to a person, whether directly or indirectly. ‘Applying force’ also has a broad definition that includes applying heat, light, gas odour, or anything else; as long as the application is intense enough to cause injury or personal discomfort. Shining a bright light in someone’s eyes, exposing them to discomforting levels of odour, or spitting at them can all constitute assault.
In fact, merely to attempting or threatening to apply force to a person in these ways constitutes assault. The threat doesn’t even have to be verbal: assault can be established as long as you indicate the threat by a gesture, and appear to be able to carry out the threat.
Civil Actions
Unlike many other crimes, such as drug offences, an assault is both a crime and a tort. This means that in addition to being charged and prosecuted at a criminal trial, the person who was assaulted could also sue you for damages. Generally, the amount that a victim could recover would be quite small, unless they have been injured, in which case they could bring a personal injury claim.
Levels
Basic common assault is a misdemeanour and carries a maximum sentence of 3 years imprisonment. However, depending on the seriousness of the assault and the extent of any harm caused, you could be facing more serious charges.
If you cause physical harm to the other person, then you could be charged with assault occasioning bodily harm (AOBH), the maximum sentence for which is 7 years.
Be careful online – if you post on social media about the fact that committed the assault, then the maximum sentence extends to 4 years for common assault and 9 years for AOBH.
Likewise, if you committed the assault while drunk in a public place, or because you were motivated by hatred or serious contempt based on race, religion, sexuality, sex characteristics or gender identity, then you could be facing 4 or 10 years respectively. Being armed with a weapon could also move your AOBH sentence up to 10 years.
In a number of circumstances, you could also be charged with serious assault even if you didn’t cause bodily harm, and the maximum sentence would move up to 7 years. These circumstances include:
- Assaulting a person over 60 years of age;
- Assaulting a person who relies on a guide/assistance dog or a wheelchair, walking frame, walking stick etc.;
- Assaulting a person with intent to commit a crime or resist lawful arrest (or prevent someone else being lawfully arrested);
- Assaulting, resisting or willfully obstructing a police officer doing their duty (but if you bite the officer, or spit at them, throw dung or bodily fluids towards them, or if you are armed with a weapon, then you could be liable to 14 years’ imprisonment);
- Assaulting, resisting, or willfully obstructing anyone who is helping the police officer to do their duty;
- Assaulting someone while they are performing, or because they have performed, a duty required by law;
- Assaulting someone as part of an unlawful trade or business conspiracy.
Although smacking a child might seem like assault, there’s a specific provision of the Criminal Code that allows parents, guardians, and teachers to use reasonable force to discipline, manage, or control a child who is under their care.
Vocare Law is well equipped to assist our Criminal Law clients with a wealth of collective knowledge and over two decades experience providing insight and advice in this area. Please don’t hesitate to contact our office if you have any questions on your Criminal Law matter. Please don’t hesitate to contact our office if you have any questions on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au
This article was written by Martin Churchill.
