Affray and riot are criminal offenses that involve the use of violence or the threat of violence in a public place. These crimes can have serious consequences and it is important to understand the differences between the two offenses.
Affray and riot are criminal offenses that involve the use of violence or the threat of violence in a public place. These crimes can have serious consequences and it is important to understand the differences between the two offenses.
Affray is defined as the use of or threat of violence between two or more people in a public place that would cause a reasonable person to fear for their safety. This can include physical altercations, verbal arguments that escalate into physical threats, or the use of weapons. While affray is a serious crime, it is typically considered less severe than riot.
Riot, on the other hand, involves the use of or threat of violence by a group of three or more people in a public place, with the intent to cause public fear or alarm. This can include violent protests, mob violence, or other large-scale disturbances that threaten public safety. Riot is a more serious offense than affray, as it involves a larger group of people and the intent to cause fear or alarm in the wider community.
Both affray and riot are punishable by significant fines and imprisonment, depending on the severity of the offense. In some cases, the penalties for these crimes may be enhanced if they are committed during a time of social unrest or in connection with other criminal activity. If you have been charged with one of these crimes, it is important to seek legal counsel as soon as possible to protect your rights and defend yourself against the charges. It is also important to remember that even if you are not directly involved in the violence, you can still be charged with affray or riot if you are present at the scene and do not take steps to disperse or prevent the violence from occurring.
Note:
Instead of charging you with affray, police may instead charge you with violent disorder under section 11A of the Summary Offences Act. This offence is less serious and has a maximum penalty of 6 months imprisonment and/or 10 penalty units (i.e. a fine of up to $1,100).
This page only relates to the offence of affray.
If you have been charged with affray, the prosecutor must prove that:
This is a hypothetical ‘reasonable person’. A person of reasonable firmness is not too sensitive or emotionally vulnerable. Such a person has been described as a ‘reasonably firm-minded member of the public’.
Importantly, no ‘person of reasonable firmness’ actually needs to be present at the scene of the affray.
This will depend on a number of factors including, for example:
You may accept that you used or threatened unlawful violence that would have caused a person of reasonable firmness to fear for their personal safety, but:
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 affray is 10 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.
If you have been charged with rioting, the prosecutor must prove that:
It needs to be proved that you and the other participants in the riot were all acting for a common purpose. In other words, while your reasons for being involved may be different, you must have all been trying to achieve the same thing.
This is a hypothetical ‘reasonable person’. A person of reasonable firmness is not too sensitive or emotionally vulnerable. Such a person has been described as a ‘reasonably firm-minded member of the public’.
Importantly, no ‘person of reasonable firmness’ actually needs to be present at the scene of the affray.
This will depend on a number of factors including, for example:
You may accept that you were in a group of 12 or more people, that you shared a common purpose and that you used or threatened unlawful violence that would have caused a person of reasonable firmness to fear for their personal safety, but:
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 rioting is 15 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.
Further advice:
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 this offence or any other criminal offence, 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 info@hugolawgroup.com.au
What will the court take into account when sentencing?
The court will take into account the scale of the affray and riot, as well your individual conduct (i.e. the level of violence used or threatened by you) when looked at in the context of the conduct of the whole group. For example, if you were only involved in the affray for a short period of time, or to a lesser degree than others, this will be seen as less serious than someone who was more actively involved in the affray.
The court will also take into account many other factors including your personal circumstances and criminal history.
What if I only got involved because someone 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 if I only got involved because my friend was getting assaulted or attacked?
You may have a defence of self-defence (defence of another) 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 does ‘using or threatening unlawful violence’ mean?
Common examples of unlawful violence include throwing objects, fighting, punching or aggressively approaching others. If you are acting in self-defence, you would not be using unlawful violence.
If you threaten unlawful violence (as opposed to using unlawful violence), you must do something more than just use words.
How does the court determine whether I intended to use or threaten unlawful violence?
This is a question for the magistrate or jury, who would consider all of the surrounding circumstances, including what you did and said.
If I plead guilty or am found guilty, will a conviction be recorded?
It is very likely that the court will 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 assist you in getting the best possible outcome.
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.
What is a standard non-parole period (SNPP)?
A non-parole period is the period of time someone spends in jail before they will be released to parole (or considered for parole).
A standard non-parole period is a legislative guidepost which represents the non-parole period for an offence which is in the middle of the range of seriousness, without reference to discounts or positive or negative features for an offender.
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Even if you have not yet been charged with a criminal offence, you should seek advice from a lawyer at an early stage to ensure that your rights and interests are protected.
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