THINGS YOU NEED TO KNOW:
- Assault occasioning actual bodily harm is an offence under section 59 of the Crimes Act 1900 (NSW).
- This offence is a Table 2 (T2) offence. It is normally dealt with in the Local Court but can sometimes be dealt with in the District
- The maximum penalty is 5 years imprisonment and/or 50 penalty units (i.e. a fine of up to $5,500). If dealt with in the Local Court, the maximum penalty is 2 years imprisonment.
- If you plead guilty, or are found guilty, a number of different sentences can be It is possible that a criminal conviction will be recorded.
What does the prosecutor have to prove?
If you have been charged with assault occasioning actual bodily harm, the prosecutor must prove that you:
- assaulted someone (the complainant), either intentionally or recklessly
- caused actual bodily harm to the
What is an assault?
An assault is the unlawful touching of someone else, either intentionally or recklessly.
Examples of physical actions which may amount to an assault in this context include slapping, punching, kickingor pushing.
What does actual bodily harm mean?
Actual bodily harm (ABH) means there must be some injury to the complainant. ABH includes things like bruises, scratches or marks. The injury does not need to be permanent, but it must be more than transient.
What does recklessness mean?
It must be proved that you realised the complainant might be subjected to unlawful touching which would cause them actual bodily harm, but continued regardless.
Should I plead guilty or not Guilty?
This will depend on a number of factors including, for example:
- whether you accept that you assaulted the complainant
- whether the injury amounts to actual bodily harm (if not, you may still be guilty of common assault)
- whether you were acting in self-defence.
You may accept that you assaulted the complainant, but:
- your lawyer may be able to persuade the prosecutor to accept a plea of guilty to a less serious chargesuch as common assault
- you may disagree with part of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the police facts.
What will the court take into account when sentencing?
The court will take into account the nature of the injury, the nature of the assault and the surrounding circumstances. For example, an assault which causes a scratch or red mark to the complainant may be seen as less serious than a sustained, prolonged assault which causes multiple injuries.
The court will also take into account many other factors including your personal circumstances and criminal history.
If I plead guilty or am found guilty, will a conviction be recorded?
It is possible that the court may record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
It is important that a lawyer properly prepares and presents your case to minimise the risk of a convictionbeing recorded.
What does it mean to have a conviction recorded?
A conviction is an entry on your criminal record (also referred to as your antecedents). A conviction may pose a hurdle, or a bar, to current or future employment, travel, adoption, residency, applications for citizenship or your ability to attain or hold a certain licence.
Will I go to gaol for an offence of assault occasioning actual bodily harm?
Although there are many sentencing alternatives, it is possible that you will go to gaol if you plead guilty or are found guilty.
The maximum penalty for assault occasioning actual bodily harm is 5 years imprisonment, however the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history andmany other factors.
What if I only hit someone because they hit me first?
You may have a defence of self-defence available to you. This will depend on whether you believed that it was necessary to do what you did, and whether what you did was reasonable in the circumstances.
What is the difference between lawful and unlawful activity?
Certain lawful activities which give rise to actual bodily harm, such as boxing, surgery or tattooing, can be performed if the person consents. However, even if two people agree to engage in a ‘fist-fight’, at law they cannot consent to such an assault, so this would be an unlawful activity.
Can emotional harm be considered actual bodily harm?
Possibly. Actual bodily harm may have been occasioned where a complainant has been injured psychologically in a very serious way, however transient emotions will not amount to actual bodily harm.
This blog is intended to provide general information about matters that often come before the court and is not legal advice. For legal advice on common assault offences or any other criminal offences, please reach out to us and speak to one of our lawyers on (02) 9696 1361 (Sydney) or (02) 5104 9640 (Canberra) or by email at email@example.com
Carol Younes, Partner