Common Assault, Assault and Aggravated Assault

Common Assault, Assault and Aggravated Assault

What is Common Assault/Assault?

Under s. 222 of the Criminal Code Compilation Act 1913 (WA) (“Criminal Code”), the definition of assault is wide and can encompass many acts.  It includes acts where a person:

  1. Strikes, touches, or moves a person.
  2. Applies force of any kind to the person of another, either directly or indirectly, without their consent, or with their consent if the consent is obtained by fraud.
  3. By any bodily act or gesture, attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person.

The term ‘applies force’ includes the application of heat, light, electrical force, gas, odour, or any other substance or thing which has been applied in such a degree as to cause injury or personal discomfort.

What is Aggravated Assault?

Under the  s. 313 (1)(a) of the Criminal Code, aggravated assault occurs if a person commits an offence in circumstances of aggravation or in circumstances of racial aggravation.

Circumstances of aggravation means circumstances in which:

  1. The offender is in a family and domestic relationship with the victim of the offence; or,
  2. A child was present when the offence was committed; or,
  3. The conduct of the offender in committing the offence constituted a breach of an order made or registered under the Restraining Order Act 1997 (WA) or to which that Act applies or;
  4. The victim is of or over the age of 60 years old.

Is Assault an offence?

Unless it is authorised, or justified by law, assault is unlawful.

Maximum Penalties

The maximum penalty for an assault/common assault is imprisonment 18 months and a fine of $18,000.

The maximum penalty for an aggravated assault is imprisonment for 3 years and a fine of $36,000.

What should I do if I am charged with assault?

We recommend that you contact WN Legal for further advice on whether there are any defences possible, or for further guidance on what you can do.

You do not have to participate in a Video Recorded Interview and in general, you have a right to silence, and you do not have to answer questions from the police.  However, there are some exceptions to this.  The police should make it clear when the law requires you to provide an answer.  Some questions that you must answer include:

  1. Name
  2. Address
  3. Date of Birth

If it is requested, you do have to submit to fingerprinting, being photographed and DNA sampling.

What possible defences can I use?

A defence justifies your conduct or gives you an excuse as to why your conduct was not unlawful.  Below are some defences which may apply to your circumstances:

  1. Self Defence
  2. Provocation
  3. Duress
  4. Accident
  5. There was consent to the ‘application of force’
  6. Insanity
  7. Emergency
  8. Identification
  9. Lawful Authority
  10. Dispute of Relevant Facts
  11. Dispute of Identity
  12. Dispute on the technicalities of the law associated with this charge