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What to do if you have been charged with assault

What is Assault?

What Happens If You Get Charged With Assault

In Western Australia, there are several types of assault charges, and the penalty may depend on the severity of the offending. In some cases, an offender can be sentenced to an immediate term of imprisonment and that imprisonment may be mandatory even if the offender has good antecedents. However, experienced criminal lawyers can help you work out a defence strategy in devising a defence. Before diving into details of ‘What Happens If You Get Charged With Assault’, here are a few things you should know:

What is Assault?

Assault is defined as a person who strikes, touches, or moves, or otherwise applies force of any kind to another person, whether directly or indirectly, without his or her consent, or if consent is obtained by force. 

In Western Australia, it is an offence under the WA Criminal Code to strike, touch, move or otherwise apply the force of any kind to another person, whether directly or indirectly.

There are different types of assault that you may be charged with. Each of these carries a different range of penalties. These types are:

  1. Common assault;
    1.1 Assault with intent (Aggravated assault/ Circumstances of aggravation)
  2. Assault causing bodily harm, and serious assaults;
  3. Grievous Bodily Harm (GBH), and
  4. Sexual or Indecent Assault

Types of Assault

1. Common Assault

Intentional or reckless acts which make a person inflict violence on another person or make the other person feel attacked are regarded as Common Assaults. Some examples of common assault are pushing, slapping, striking, and kicking. Spitting on someone or attempting to do so even if it does not touch the victim is also considered a serious assault as it may cause the spread of transmissible diseases. If it was unintentional, a defence of ‘accident’ may be applicable in certain circumstances. 

What happens if you get charged with common assault?

So, how serious is a common assault charge? If convicted, the offender faces a term of imprisonment for up to 18 months and a fine of up to $18,000. 

In order to prove that a crime related to common assault has been committed, the following conditions must be proven in court without any doubt:

  1. The accused had put some kind of force on the victim
  2. The force was applied without the victim’s consent
  3. It was intentionally or recklessly done
  4. This act was not justified, excused, or approved by law

Possible Defences

On the other hand, a non-exhaustive list of the defences which an experienced criminal lawyer, like WA Legal, might prescribe to prevent or lower the intensity of any penalties are:

  1. Self defence;
  2. Provocation;
  3. Extraordinary emergency;
  4. Accidental occurrence;
  5. Unwilled acts; or,
  6. Intoxication if it was not self-intoxication. 

1.1 Assault with intent (Aggravated assault)

Circumstances of aggravationis a situation that becomes more serious than it actually would be when a crime had been committed. For instance, during a verbal dispute, a verbal abuse aggravates to physical assault of intensified nature. ‘Circumstances of aggravation‘ includes a case wherein the offender is: 

  1. armed with a weapon or 
  2. in company with others; or 
  3. the offender harms, degrades, humiliates, or threatens to kill the victim; or 
  4. where the victim is between 13 and 16 years old.

These constitute circumstances of aggravation or circumstances of racial aggravation. 

What happens if you get charged with assault? (common assault in circumstances of aggravation)

For aggravated assault, or assault in circumstances of aggravation, the offender is liable to imprisonment for up to 3 years and a fine of up to $36,000.

2. Assault causing bodily harm

Bodily harm by definition as a criminal offence in which one person gives the victim injury that causes pain and intervenes with their health or comfort. This involves cuts, bruises, burns, fractures, internal bleeding, disfigurement of any body part, or anything causing malfunctioning of a body part including mental health and more is considered bodily harm.

The difference between a common assault and assault causing bodily harm depends on the degree of injury. Bodily harm mostly constitutes injuries that are trifling or transient in nature like a minor fracture or multiple bruising. On the other hand, common assault constitutes injuries like scratches or minor bruising.

What Happens If You Get Charged With Assault Occasioning Bodily Harm

This carries a sentence of imprisonment for up to 2 years and a fine of $24,000 if dealt with by Magistrates Court. However, if such an assault is committed in circumstances of aggravation or in circumstances of racial aggravation, (as above) then the offender is liable for a maximum penalty of 3 years imprisonment and a fine of $36,000.

There would be a significant increase in maximum statutory penalties if the matter is dealt with by the district court.

2.1 Assault on the Crew of an Aircraft

There is a separate offence of assault on the crew of an aircraft. Accordingly, a person who assaults a member of the crew of an aircraft or threatens them with violence is liable to imprisonment of up to 14 years

In order to prove that a crime related to ‘assault crew’ has been committed, the following conditions must be proven in the court without any doubt:

  1. The Aircraft is a Division 3 aircraft;
  2. You assaulted, threatened with violence, or intimidated another person; and
  3. That other person is a member of the crew of the aircraft.

The aggravated offence is convicted if it is proven beyond a reasonable doubt that:

  1. “Interference with that member’s performance of functions or duties, connected with the operation of the aircraft; or
  2. The lessening of that member’s ability to perform their functions or duties.”

 2.2 Serious assault

Serious assault is committed where the offender assaults a public officer, while such person is performing their duties, such as a police officer, bus driver, ambulance driver, taxi driver, fireman, or person working at a hospital or a court or prison guard.

What happens if you get charged with assault?

Conviction carries a term of imprisonment for up to 7 years. However, if the offender is armed with a weapon or is in company with other people, the term of imprisonment is up to 10 years.

Minimum sentences apply for serious assault. If the offender is between 16 and 18 years old, then the court sentences the offender to either imprisonment or detention of at least 3 months if the serious assault occasioned bodily harm. If the offender is over 18, then the minimum term of imprisonment is at least 6 months if the serious assault occasioned bodily harm. If the offender is armed with a weapon or in company with other people, the court sentences the offender to imprisonment of at least 9 months.

Except where minimum sentences are prescribed by law for serious assault, in most cases, the courts have discretion when sentencing an offender. Depending on the nature of the offence and criminal history, the courts can impose lesser penalties than the maximum prescribed in the Criminal Code. Such penalties could include fines, suspended imprisonment, immediate term of imprisonment, good behaviour bonds, community service orders, and probation.

3. Grievous Bodily Harm (GBH)

The Criminal Code WA defines Grievous Bodily Harm as a bodily injury that either causes permanent injury to health or endangers one’s life or is likely to do both. For instance, this includes broken legs, injured jaw, serious head injury, permanent loss of a particular body part, and more.

Whilst Grevious Bodily Harm charges commences at the Magistrates Court, all Grievous Bodily Harm charges will ultimately be dealt with by the District COurt in Western Australia. 

If the victim undergoes medical treatment and recovers completely from the injury, the severity of it will still be considered as “likely to endanger life or likely to cause permanent injury to health”. The accused in this case cannot defend the assault charges by saying that the life of the victim is no longer endangered.

The most commonly asked question about GBH is, “Can I get charged with assault without evidence?” The answer is NO. There must be prima facie proof of your crime to charge you with an offence.

In order to prove the offence of GBH the prosecution must prove the following:

  1. That the person lodging the complaint was a victim of GBH;
  2. GBH was caused by the person accused by the victim;
  3. The act of GBH was not justified, excused, or approved by law and hence was unlawfully done

What happens if you get charged with assault?

The maximum penalty for GBH is 10 years imprisonment. The case is dealt with by the district court and not by the Magistrates Court. 

4. Sexual assault or Indecent Assault

Finally, there is a range of separate offences involving sexual assault which involves physical contact of a sexual nature towards another person where that person does not consent or only consents as a result of fear, or where the person is legally deemed incapable of giving consent because of youth. There are different types of sexual assault which attract heavy penalties including significant terms of imprisonment.

The definition of ‘indecent’ is not defined in any prescribed law or the Criminal Code. However, the common law (case law) to include a range of factors, including whether the act of assault connotes a sexual connotation, such as a kiss that can be construed/ seen to be more than just a social greeting, or touching an indecent region of the victim’s body. 

Penalties for indecent assault

Except where minimum sentences are prescribed by law, as for serious assault, in most cases, the courts have discretion when sentencing an offender, and depending on the nature of the offence and his/her criminal history, the courts can impose lesser penalties than the maximum prescribed in the Criminal Code. Such penalties could include fines, suspended imprisonment, immediate term of imprisonment, good behaviour bonds, community service orders and probation.

How does an assault charge affect your life?

Depending on the severity of the offending, a criminal record for an assault charge may affect your employment situation, housing conditions, university education, and even military service in Australia. 

What can you do?

Reach out to your most trusted and experienced local criminal defence lawyers Perth – we can help you with different types of assaults depending on your situation.

Call WN Legal Today. To book your free 30 min Consultation, call us on 08 9349 2196

(Disclaimer: The material in this article is of a general nature and intended for information only. It is not intended to be comprehensive and does not constitute legal advice. Any person with a specific legal issue should consult a lawyer.)