THINGS YOU NEED TO KNOW:
- Assaulting or resisting a police officer is an offence under section 58 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 Court.
- The maximum penalty is 5 years imprisonment. If the matter is dealt with in the Local Court, the maximum penalty is 2 years imprisonment and/or 50 penalty units (i.e. a fine of up to $5,500).
- If you plead guilty, or are found guilty, a number of different sentences can be imposed. It is possible that a criminal conviction will be recorded.
WHAT DOES THE PROSECUTOR HAVE TO PROVE?
If you have been charged with assaulting or resisting a police officer, the prosecutor must prove that:
- you assaulted or resisted a police officer
- your actions were intentional or reckless
- the police officer was acting in the execution of their duty.
If police allege that you assaulted a police officer, you may have instead been charged under section 60 of the Crimes Act. This offence has the same maximum penalties as an offence under section 58.
If police allege that you resisted a police officer, you may have instead been charged under section 546C of the Crimes Act. This offence is less serious and has a maximum penalty of 12 months imprisonment and/or a fine of 10 penalty units (a fine of up to $1,100).
This page only relates to offences under section 58 of the Crimes Act.
What is an assault?
In this context, an assault is either:
- an act which does not involve the application of physical force but which caused the police officer to fear immediate and unlawful violence, or
- the unlawful touching of a police officer, without their consent, but which does not amount to actual bodily harm. Actual bodily harm includes things like bruises, scratches, or marks.
Examples of actions which may amount to an assault, but which do not include physical force, include threatening someone by shouting, or moving towards someone in an intimidatory manner.
Examples of physical actions which may amount to an assault include slapping, punching, kicking, pushing or spitting.
What could amount to resisting?
To resist police you must have done more than merely obstruct police. You must have used some a degree of force in opposition to an action by police.
What does recklessness mean?
If police do not allege that you applied physical force, it must be proved that you realised the complainant might fear that they would be subjected to immediate and unlawful violence, but continued regardless.
If police allege that you physically touched someone, it must be proved that you realised the complainant might be subjected to unlawful touching, however slight, but you continued regardless.
When is a police officer ‘acting in the execution of their duty’?
To be acting in the execution of their duty, a police officer must be carrying out a lawful task connected with their functions as a police officer. If they are acting outside of this, for example by using excessive force, they may not be acting in the execution of their duty.
It is not necessary to prove that you knew the police officer was a member of the police force. This may be relevant if it is alleged that you assaulted or resisted an undercover police officer.
SHOULD I PLEAD GUILTY OR NOT GUILTY?
This will depend on a number of factors including, for example:
- whether you accept that you assaulted or resisted the police officer
- whether the police officer was acting in the execution of their duty
- whether you were acting in self-defence.
You may accept that you resisted the police officer, but your lawyer may be able to persuade the prosecutor to accept a plea of guilty to the less serious charge of resist a police officer in the execution of their duty under section 546C of the Crimes Act.
You may accept that you assaulted or resisted the police officer, but 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 assault or the level of resistance, as well as the surrounding circumstances. For example, spitting or punching may be seen as more serious than pushing, and a slight resistance will be seen as less serious than a violent struggle.
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 conviction being 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 assaulting or resisting a police officer?
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 assaulting or resisting a police officer is 5 years imprisonment, however 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 you going to gaol.
Is bumping into a police officer an assault?
Bumping into a police officer is not an assault as long as you did not intend to bump into them.
Is it possible to be found guilty of assaulting or resisting a police officer if they were not wearing their uniform?
Yes. Police do not have to prove that you knew the police officer was a member of the police force at the time of the offence. Despite this, you may be able to rely on the defence of honest and reasonable mistake.
What if I only assaulted or resisted the police officer because they were violently handcuffing me?
If the police officer was using excessive force, the court may find that they were acting outside the execution of their duty. In this situation you may not be guilty of assaulting or resisting the police officer, but only if what you did was a reasonable response to their actions.
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 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 firstname.lastname@example.org
Carol Younes, Partner