Assault offences in Victoria range in seriousness from the lowest level offending, where a person may not even be touched during the course of an assault, through to attempted murder which is dealt with in the Supreme Court. Depending on the severity of the assault, prosecutions for assaults can be dealt with in the Magistrates’ Court, County Court and Supreme Court. The most important aspect in any assault prosecution is the severity of any injury perpetrated against the victim. In some cases, there will be no injury at all. In others, the victim may have just survived the assault.
Where the person injured is an emergency worker, a youth justice custodial worker or a custodial worker on duty, the law imposes particularly harsh penalties (including mandatory imprisonment) for individuals who assault and injury a special category or person.
Assaults are generally considered to have occurred where the accused, either directly or indirectly, applies force to the body, clothing or equipment worn by another person where the application is without lawful excuse and, with intent to inflect or being reckless as to the infliction of bodily injury, pain, discomfort, damage, insult or deprivation of liberty. The conduct must result in the infliction of any such consequence (whether or not the consequence inflicted is the consequence intended or foreseen). An application of force includes an application of direct physical contact, heat, light, electric current or any other form of energy, as well as the application of matter in solid, liquid or gaseous form.
Common Law Assault Offences
Before the law developed into pieces of legislation and statute, the ‘common law’ existed. The common law developed through cases that came before Courts, which then had to essentially make the law that applied to the offending before it. Over the development of the common law, the offence of common law assault was created. This occurs in circumstances where a person applies for to the body of another, the application of force was intentional and that there was no lawful justification or excuse. An injury does not need to result, nor does there have to be an intention to cause an injury. The mere application of force is enough. A common example is a person pushing another to start a fight.
Common Assault and Aggravated Assault Offences
Starting from the lower end of the range of assault offences, common assault sits at the lowest end of the scale. It is contained in the Summary Offences Act 1966 and carries a maximum sentence of 15 penalty units or imprisonment for three months. This level of assault does not include any injury. Accordingly, it occurs in circumstances where the accused has applied force to another person without lawful excuse and with the intention of causing injury. If a Magistrate believes that the offending for common assault is of an aggravated nature, because it was committed against a child under the age of fourteen or any female, the Court can increase the sentencing range to 25 penalty units or up to six months’ imprisonment.
Intentionally or Recklessly Causing Injury
A more serious category of assault is an assault involving an injury. A person is guilty of an offence if they, without lawful excuse, intentionally or recklessly cause injury to another person. An injury is defined as:
- a physical injury (ie unconsciousness, disfigurement, substantial pain, infection with a disease and an impairment of bodily function); or
- harm to mental health.
If found guilty of intentionally causing injury, a person can receive up to ten years’ imprisonment. In the case of recklessly causing injury, a person can receive up to five years’ imprisonment. However, it is unusual for a person to be sentenced to a term of imprisonment for such offending, which is almost always dealt with in the Magistrates’ Court.
Recklessly Causing Serious Injury
At the beginning of the scale of serious assaults is recklessly causing serious injury. A serious injury is one that endangers life, is substantial or protracted or which destroys the foetus of a pregnant woman. This offence is committed where the conduct of a person causes a serious injury due to the person’s recklessly, notwithstanding that they did not intend to cause that injury. An example of the offending is where a person punches another once to the face, the person falls back, hits their head and fractures their skull. A fractured skull endangers life and, therefore, constitutes a serious injury. Where the victim is an emergency worker, custodial officer or youth justice officer on duty, and the offender knew or was reckless as to whether they were such a person, this opens up far more serious sentencing powers and requires a term of imprisonment of at least two years. The maximum sentence available for this offending is 15 years imprisonment.
Intentionally Causing Serious Injury
Previously the most serious form of assault, intentionally causing injury is committed where, without lawful excuse, a serious injury was sustained by the victim and intended by the offender. An example of such offending is stabbing a person with a knife during an argument. As with the offence of recklessly causing serious injury, where the victim is an emergency worker, custodial officer or youth justice officer on duty, and the offender knew or was reckless as to whether they were such a person, this opens up far more serious sentencing powers. However, the minimum term required to be served in the case of intentionally causing serious injury is three years’ imprisonment. The maximum sentence available for this offending is 20 years’ imprisonment.
Causing Serious Injury Recklessly in Circumstances of Gross Violence
In recent years, Parliament introduced offences involving gross violence. Where a person has committed the offence of recklessly causing serious injury, but in circumstances of gross violence, this converts the offending into a category 1 offence and imposes a mandatory non-parole period of not less than 4 years. If the victim is an emergency worker, custodial officer or youth justice officer on duty, the mandatory non-parole period is 5 years’ imprisonment, This means that the offender must serve at least four years. Gross violence includes pre-planning of violence in circumstances where they intended to or were reckless as to whether the conduct would cause a serious injury. For example, planning to go and beat up a person. Gross violence also includes circumstances where the offender was in company with two or more other persons when they caused the serious injury and, where they entered into an agreement to attack a person together. The use of weapons or imitation firearms is also a circumstance that can convert the offending into a gross violence offence. The maximum sentence available for the offending is 15 years.
Causing Serious Injury Intentionally in Circumstances of Gross Violence
Similarly to the offence of causing serious injury recklessly in circumstances of gross violence, in circumstances where the offender intended to cause serious injury in circumstances of gross violence, this elevates the offending so as to attract the mandatory non-parole period of 4 years’ imprisonment and 5 years’ imprisonment if the person is an emergency worker, custodial officer or youth justice officer. The maximum sentence available is 20 years’ imprisonment.
Assault offences can range from the relatively minor through to the incredibly serious. A finding of guilt or conviction can have far ranging consequences, including the imposition of a criminal record all the way up to serious terms of imprisonment. However, importantly, an assault only becomes illegal if the accused has no lawful excuse. For example, self defence or defence of another. Before making a decision on the direction of an assault matter, an accused person must get the best legal advice.
How Galbally Parker Assault Offence Lawyers Can Help
When facing charges of assault, finding lawyers to repressent you is a time-sensitive and crucial task. At Galbally Parker, our team of expert assault lawyers can provide you with easier access to the resources you need during this challenging time. We can represent you for a range of assault charges including aggravated assault, physical assault, common assault and domestic assault.
