Assault Offences in the ACT

Assault and resisting police are criminal offences that involve the use of physical force or violence against another person, or the refusal to comply with a police officer's lawful orders.

Common Assault in the ACT

  1. Common assault is an offence under section 26 of the Crimes Act 1900 (ACT).
  2. This offence is a summary offence. It is normally dealt with in the Magistrates Court but can sometimes be dealt with in the Supreme Court in aggravating circumstances.
  3. An assault can, but does not have to, include the application of physical force.
  4. The maximum penalty for this offence is 2 years imprisonment. An aggravated offence (family violence context) against this section carries a maximum penalty of 3 years imprisonment.
  5. If you plead guilty or are found guilty, a number of different sentences can be imposed. A criminal conviction may be recorded, although it is generally unlikely that you will be sentenced to full-time imprisonment.

If you are charged with common assault without applying physical force, the prosecutor must prove that:

  1. You intentionally or recklessly did something that caused another person (the complainant) to fear immediate and unlawful violence
  2. The complainant did not consent
  3. You did not have a lawful excuse

If you have been charged with common assault by the application of unlawful force (physically touching them), the prosecutor must prove that:

  1. You intentionally or recklessly touched another person (the complainant)
  2. The complainant did not consent
  3. You did not have a lawful excuse

What can amount to a common assault without physical force?

Your conduct or actions may still be considered assault even if no physical contact is made with the complainant if your words or actions caused them to fear that immediate and unlawful violence would be applied. Examples include directly threatening somebody by shouting at them or merely moving towards somebody in an intimidatory manner.

What is unlawful touching/violence?

Unlawful touching/violence is defined as any contact with another person that occurs without their consent and is deemed unlawful but which does not amount to or result in actual bodily harm. In R v Donovan [1934] 2 KB 498, the court determined that to constitute actual bodily harm, the injury does not have to be particularly serious, but must be more than an annoyance or mere inconvenience. This definition ranges from cuts, scratches and bruises to more serious injuries such as minor fractures and psychological harm. An example of what may not be actual bodily is a small bruise that cannot be seen after a day or harm in the form of pain only.

The courts have accepted that this definition excludes any unwanted contact that would naturally occur during the course of everyday life, such as brushing up against somebody or bumping into them whilst walking along a busy street/pavement.

How does the court determine whether I intended to assault the complainant?

For an act to have been intentional, you must have decided to bring about an act of a particular kind or result. This is a question for the magistrate, who would consider all the surrounding circumstances, including what you did and said.

What does ‘recklessness’ mean?

If the prosecution alleges that you recklessly committed assault without applying physical force, it must be proved that you realised the complainant might fear that they would be subjected to immediate and unlawful violence, but you continued regardless.

If the prosecution allege that you committed assault by applying physical force/violence, it must be proved that you realised the complainant might be subjected to unlawful touching, however slight, but you continued regardless.

This is a question for the magistrate, who would consider the surrounding circumstances.

What is an aggravated offence?

An offence will be aggravated if occurring in a family violence context. This means the offender and victim need to be relatives, domestic or former domestic partners, or intimate or former intimate partners.

Q. Should I plead guilty or not guilty to an aggravated offence?

This will depend on a number of factors including, for example:

  • Whether you accept that you assaulted the complainant
  • Whether you acted intentionally or recklessly
  • Whether you acted in self-defence or have another lawful excuse/justification.
  • Whether you accept that the complainant feared the application of immediate and unlawful violence
  • Whether you accept that the complainant had not consented
  • Whether the act may is considered to be a lawful correction

You may accept that you assaulted the complainant, 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.

Q. What are the possible defences for aggravated offence?

  • You may deny that you assaulted the victim
  • You may have been acting in self-defence
  • The complainant may have consented, such as during contact sports or combat sports sparring
  • The contact may be fall under conduct deemed acceptable during the course of everyday life
  • The conduct may be considered lawful correction, which allows for the reasonable and warranted discipline of children
  • You may have been acting under duress
  • The assault was an accident/unvoluntary and not reckless
  • The assault was committed whilst mentally impaired

Q. Will I go to gaol if I plead lty or am found guilty of an aggravated offence?

Though imprisonment is not a likely outcome for an offence of common assault, and there are many sentencing alternatives, it is still possible that you will go to gaol if you plead guilty or are found guilty.

The maximum penalty for common assault is 2 years imprisonment or 3 years imprisonment in aggravated circumstances, although these penalties are typically reserved for the most extreme offences.

The type of sentence you receive will ultimately depend on the facts of your case, your personal circumstances, criminal history, and a variety of other factors. It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to gaol, or to persuade the court to reduce the length of the gaol sentence.a

Affray in the ACT

  1. Affray is an offence under section 35A of the Crimes Act 1900 (ACT).
  2. Depending on the number of people involved in the affray the offence might be dealt with in the Magistrates Court or Supreme Court.
  3. The maximum penalty for this offence is 2 years imprisonment in regular circumstances, 5 years imprisonment when 2 or more people are present are also engaging in the conduct, and 10 years imprisonment when 5 or more people are present and also engaging in the conduct.
  4. If you plead guilty or are found guilty, a number of different sentences can be imposed. A criminal conviction is likely to be recorded, and you may be sentenced to full-time imprisonment.

If you have been charged with affray, the prosecutor must prove that:

  1. You engaged in conduct
  2. The conduct was violence or the threat of violence
  3. The violence or threat was directed towards someone else
  4. The violence or threat would likely cause a reasonable person to fear for their safety

If you have been charged with affray under subsections 2 or 3, the prosecutor must prove that:

  • Two or more other people present were also engaging in conduct that is violence, or the threat of violence, directed towards someone else; or
  • Five or more other people present were also engaging in conduct that is violence, or the threat of violence, directed towards someone else.

What is considered conduct?

Subsection 5 of the offence provision states that ‘engage in conduct’ is given the definition outlined in Section 13 of the Criminal Code 2002 (ACT). ‘Conduct’ means an act, an omission to do an act or a state of affairs, whereas to ‘engage in conduct’ means to do an act or omit to do an act.

How does the prosecution prove that I made a threat of violence?

Whether you threatened another is a matter of fact and will, therefore, be decided by the jury, judge or magistrate, who will consider the surrounding circumstances, including what you said and did. However, for the offence of affray, a verbal threat by itself is not sufficient. The threat must involve more than words and be accompanied by conduct, which, when combined with the verbal threat,, would cause a witness to fear for their safety.

What conduct constitutes violence?

Whether your conduct or the content of your threat was sufficient to be considered violence is a matter of fact and will therefore be decided by the jury, judge or magistrate who will consider all surrounding circumstances. Typically, the term violence has been broadly interpreted and adopts its ordinary and natural meaning. Whether conduct or threatened conduct will be deemed violent will typically depend on its severity and possible consequences.

How does the court determine whether the violence or threat was directed towards someone else?

Whether the violence of threat of violence was directed towards another person is typically a straightforward assessment of fact and will be determined by the magistrate, judge or jury who will consider all of the surrounding circumstances including what you said and how you acted. A person towards whom the violence or threat of violence is directed does not need to be involved in the violence or threat.

What is a ‘reasonable person’?

In determining whether a reasonable person would have feared that the threat would have been carried out, the jury, judge or magistrate is to consider objectively whether an ordinary and reasonable person placed in the circumstances of the complainant, with all of the information available to the complainant at the time of the alleged offence would have feared that the threat would be carried out. This hypothetical reasonable person is deemed to be neither particularly timid nor particularly brave. Typically, the more aggressive you acted or the greater the severity of the threatened or actual violence, the more likely it will be considered sufficient to make a reasonable person fear for their safety. A reasonable person does not need to be, or be likely to be, present at the place where the conduct happened and need not have actually feared for their safety.

How does the court determine whether other people present were also engaging in the conduct?

Whether other people are deemed to have also been present and engaged in the conduct will be an assessment of fact and determined by the magistrate, judge, or jury, who will consider all of the surrounding circumstances, including what each person said and did.

Q. If I plead guilty or am found guilty of affray, will a conviction be recorded?

The court will likely 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.

Your lawyer will play a critical role by:

  1. Collecting and presenting evidence to clarify your actions.
  2. Challenging prosecution witnesses to find inconsistencies.
  3. Calling witnesses to support your account.
  4. Differentiating your conduct from others involved.
  5. Making arguments to frame the facts favorably.
  6. Presenting a clear and compelling narrative of your actions.

Q. Should I plead guilty or not guilty to a charge of affray?

This will depend on a number of factors including, for example:

  • Whether you accept that engaged in conduct
  • Whether you accept that the conduct was violent or included a threat of violence
  • Whether you accept that that the violence or threat of violence was directed towards someone else
  • Whether you accept that the violence or threat would be likely to cause a reasonable person to fear for his or her safety.
  • Whether you accept that either 2 or more, or 5 or more people were present and also engaging in the conduct.

You may accept that you assaulted the complainant, 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.
  • Your lawyer may persuade the prosecutor to accept a guilty plea to a less serious charge such as common assault.

Q. What are the possible defences against a charge of affray?

  • You may deny that engaged in conduct
  • You may have been acting in self-defence
  • You may deny that the conduct was violent or included a threat of violence
  • You may deny that the violence or threat of violence was directed to another person
  • You may deny that the violence or threat would likely cause a reasonable person to fear for his or her safety
  • You may argue that the threat of violence merely involved words and was not accompanied by conduct
  • The affray was an accident/involuntary and not reckless
  • The affray was committed whilst mentally impaired

Q. Will I go to gaol if I plead guilty or am found guilty of affray in the ACT?

Though imprisonment is not a certain outcome for the offence of affray, and there are many sentencing alternatives, it is still possible that you will go to gaol if you plead guilty or are found guilty.

The maximum penalty for affray is 2 years imprisonment in regular circumstances, 5 years imprisonment when 2 or more people are present are also engaging in the conduct, and 10 years imprisonment when 5 or more people are present and also engaging in the conduct. However, these penalties are typically reserved for the most extreme offences.

The type of sentence you receive will ultimately depend on the facts of your case, your personal circumstances, criminal history, and a variety of other factors. It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to gaol, or to persuade the court to reduce the length of the gaol sentence.

Assault Occasioning Actual Bodily Harm (AOABH) in ACT

  1. Assault Occasioning Actual Bodily Harm is an offence under section 24 of the Crimes Act 1900 (ACT).
  2. This offence is indictable meaning it can be dealt with in either the Magistrates Court or Supreme Court.
  3. The maximum penalty for this offence is 5 years imprisonment. However, an aggravated offence (family violence context) against this section carries a maximum penalty of 7 years imprisonment.
  4. If you plead guilty or are found guilty, a number of different sentences can be imposed. A criminal conviction may be recorded, and you may be sentenced to full-time imprisonment.

If you have been charged with assault occasioning actual bodily harm, the prosecutor must prove that you:

  1. Assaulted another person (the complainant)
  2. Did so intentionally or recklessly
  3. As a result of that assault, the person suffered actual bodily harm

How does the court determine whether I intended to assault the complainant?

For an act to have been intentional, you must have decided to bring about an act of a particular kind or result. This is a question for the jury, who would consider all of the surrounding circumstances including what you did and said.

Your lawyer can help the jury understand the concept of intentionality by:

  1. Explaining that “intentional” means deciding to bring about a specific act or result.
  2. Showing how your actions and words align with or contradict intentionality.
  3. Providing evidence that supports your lack of intent.
  4. Arguing against the prosecution’s interpretation of your actions.
  5. Bringing in experts to discuss intentional behaviour.
  6. Highlighting all relevant circumstances to build a narrative supporting your lack of intent.
  7. Breaking down complex legal ideas for the jury.

This ensures the jury fully understands whether your actions were intentional.

What does ‘recklessness as to causing actual bodily harm’ mean?

Being ‘reckless as to causing actual bodily harm’ means that you realised actual bodily harm may possibly be inflicted on the complainant by your actions but continued regardless. This is a question for the jury, judge or magistrate, who would consider all of the surrounding circumstances.

What does ‘assault the complainant’ mean?

Assault is defined narrowly as the intentional or reckless application of unlawful force by the accused to the complainant without their consent or without lawful justification/excuse. This imposes a relatively low threshold but does not include contact that ordinarily occurs during everyday life.

What is actual bodily harm?

In R v Donovan [1934] 2 KB 498, the court determined that to constitute actual bodily harm an injury need not be permanent, but “must be more than merely transient or trifling”. The injury does not have to be particularly serious but must be more than an annoyance or mere inconvenience. This definition ranges from cuts, scratches and bruises to more severe injuries such as fractures and serious psychological harm. An example of what is not actual bodily harm might be a small bruise that is not visible a day after an assault or injury in the form of pain only.

What is an aggravated offence?

An offence will be aggravated if occurring in a family violence context. This means the offender and victim need to be relatives, domestic or former domestic partners, or intimate or former intimate partners.

Q. If I plead guilty or am found guilty of AOABH, 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.

Q. Should I plead guilty or not guilty to AOABH?

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
  • Whether you acted intentionally or recklessly
  • Whether you acted in self-defence or have another lawful excuse/justification.

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 charge such 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 statement of facts for sentencing.

Q. What are the possible defences to AOABH?

  • You may deny that you assaulted the victim
  • You may agree that you assaulted the victim, but the injury did not amount to actual bodily harm.
  • You may have been acting in self-defence
  • You may have been acting under duress
  • The assault was an accident/unvoluntary and not reckless
  • The assault was committed whilst mentally impaired

Q.Will I go to gaol for assault occasioning actual bodily harm if I plead guilty or am found guilty?

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 or 7 years imprisonment in aggravated circumstances, although these penalties are typically reserved for the most extreme offences.

The type of sentence you receive will ultimately depend on the facts of your case, your personal circumstances, criminal history, and a variety of other factors.

It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to gaol, or to persuade the court to reduce the length of the gaol sentence.

Assault of Frontline Community Service provider in the ACT

Assault of frontline community service provider is an offence under section 26A of the Crimes Act 1900 (ACT).

  1. This offence is a summary offence, meaning that it is dealt with in the Magistrates Court.
  2. An assault can, but does not have to, include the application of physical force.
  3. The maximum penalty for this offence is 2 years imprisonment.
  4. 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, and you may be sentenced to full time imprisonment.

If you have been charged with assaulting a frontline community service provider, the prosecutor must prove that:

  1. You assaulted another person
  2. The other person is a frontline community service provider
  3. You knew or were reckless about whether the other person is a frontline community service provider
  4. The assault is committed when the frontline community service provider is exercising a function of their role, as a consequence of or in retaliation for action taken by the person in exercising their function in that role, or because that person is a frontline community service provider.

How can the prosecution prove I knew the person was a frontline community service provider?

Unless there is evidence to the contrary, it is presumed that the defendant knew that the person was a frontline community service provider if the person identified themselves as such or that fact was reasonably apparent, having regard to all of the circumstances, including their conduct and manner. Examples of evidence that may be used is if the person was in uniform or if they were operating or driving an emergency vehicle. The defendant has the evidential burden in relation to evidence contrary to this assumption. Therefore, the defendant must prove that they did not know the person was a frontline community service provider.

Your lawyer will aim to create reasonable doubt about your knowledge of the person’s status as a frontline community service provider, potentially leading to a favourable outcome for your case.

How can the prosecution prove I was ‘reckless’ as to whether the person was a frontline community service provider?

If the prosecution alleges that you recklessly assaulted a frontline community service provider, it must be proved that you were aware of the possibility that the person was a frontline community service provider but decided to assault them regardless. This is a question for the magistrate, who would consider all of the surrounding circumstances.

How can the prosecution prove that the person was exercising a function of their role?

Strict liability applies to the circumstance that the frontline community service provider was exercising a function as a frontline community service provider. This means that it is a matter of fact whether the person was exercising a function of their role and does not matter whether you knew that they were exercising a function of their role. Therefore, it is for the magistrate to decide, who will consider all of the surrounding circumstances. It does not necessarily matter whether the frontline community service provider was off duty when exercising a function as a frontline community service provider.

How can the prosecution prove that I assaulted the person because that person is a frontline community service provider?

It is a matter of fact whether you assaulted the victim as a consequence of, or in retaliation for, action taken by the person in exercising their function in that role, or because that person is a frontline community service provider. This means that the magistrate will make a determination, having considered all of the surrounding circumstances, including what you said and did.

Who is considered a frontline community service provider?

A frontline community service provider means a police officer, protective service officer, corrections and interstate escort officers, or a member of an emergency service such as fire or ambulance. Accordingly, whether someone is a ‘member’ of an emergency service is outlined in section 176 of Emergencies Act 2004 (ACT) and means any person employed by the ACT Emergency Services Agency and any volunteer assisting the ACT Emergency Services Agency.

What can amount to an assault without physical force?

Your conduct or actions may still be considered assault even if no physical contact is made with the complainant if your words or actions caused them to fear that immediate and unlawful violence would be applied. Examples include directly threatening somebody by shouting at them, or merely moving towards somebody in an intimidatory manner.

What is unlawful touching/violence?

Unlawful touching/violence is defined as any contact with another person that occurs without their consent and is deemed unlawful, but which does not amount to or result in actual bodily harm. In R v Donovan [1934] 2 KB 498, the court determined that to constitute actual bodily harm the injury does not have to be particularly serious, but must be more than an annoyance or mere inconvenience. This definition ranges from cuts, scratches and bruises to more serious injuries such as fractures and serious psychological harm.

The courts have accepted that this definition is to exclude any unwanted contact that would naturally occur in during the course of everyday life such as brushing up against somebody or bumping in to them whilst walking along a busy street/pavement.

Q. If I plead guilty or am found guilty of the assault of a frontline service provider, will a conviction be recorded?

It is 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.

Q. Should I plead guilty or not guilty to the assault of a frontline service provider?

This will depend on a number of factors including, for example:

  • Whether you accept that you assaulted the complainant
  • Whether you knew or were reckless as to whether the person was a frontline community service provider
  • Whether the person was a frontline community service provider
  • Whether you assaulted them whilst they were exercising a function of their role, as a consequence of or in retaliation for action taken by the person in exercising their function in that role, or because that person is a frontline community service provider.
  • Whether you acted in self-defence or have another lawful excuse/justification.
  • Whether you accept that the complainant feared the application of immediate and unlawful violence
  • Whether you accept that the complainant had not consented

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 charge such 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.

Q. What are the possible defences against the charge of assault of a frontline service provider?

  • You may deny that you assaulted the victim
  • You may deny that you knew or were reckless as to whether the person was a frontline community service provider
  • You may deny that they were a frontline community service provider
  • You may deny that you assaulted them whilst they were exercising a function of their role, as a consequence of or in retaliation for action taken by the person in exercising their function in that role, or because that person is a frontline community service provider.
  • You may have been acting in self-defence
  • The contact may be fall under conduct deemed acceptable during the course of everyday life
  • You may have been acting under duress
  • The assault was an accident/unvoluntary and not reckless
  • The assault was committed whilst mentally impaired

Q. Will I go to gaol if I plead guilty or am found guilty of assaulting a frontline community service provider?

It is possible you will be sentencing to full-time imprisonment, although there are potentially many sentencing alternatives.

The maximum penalty for of assaulting a frontline community service provider is 2 years imprisonment, although these penalties are typically reserved for the most extreme offences.

The type of sentence you receive will ultimately depend on the facts of your case, your personal circumstances, criminal history, and a variety of other factors. It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to gaol, or to persuade the court to reduce the length of the gaol sentence.

Choke, Suffocate or Strangle in the ACT

  1. Choking, Suffocating or Strangling another person is an offence under section 28(2)(a) of the Crimes Act 1900 (ACT).
  2. This offence is indictable, meaning it can be dealt with in either the ACT Magistrates Court or    Supreme Court
  3. The maximum penalty for this offence is 5 years imprisonment. An aggravated offence (family violence context) against this section carries a maximum penalty of 7 years imprisonment.
  4. If you plead guilty or are found guilty, a number of different sentences can be imposed. A criminal conviction is likely to be recorded, and you may be sentenced to full-time imprisonment.

If you have been charged with wounding, the prosecutor must prove that:

  1. You intentionally choked, suffocated, or strangled another person
  2. You did not have a lawful excuse

To defend you against these charges, your lawyer will:

  1. Challenge the Intent: Argue that there was no intention to choke, suffocate, or strangle. This might involve presenting evidence or witness testimony to show that the act was accidental or unintentional.
  2. Lawful Excuse: Provide evidence or arguments that you had a lawful excuse for your actions. This could include self-defense or defense of another person if you were acting to prevent immediate harm.
  3. Question Evidence: Scrutinise the prosecution’s evidence for inconsistencies or weaknesses. This involves examining witness statements, physical evidence, and any medical reports to find discrepancies or lack of corroboration.
  4. Witness Testimony: Call witnesses who can testify on your behalf to provide an alternative account of events or to vouch for your character and intentions.
  5. Cross-Examination: Rigorously cross-examine prosecution witnesses to uncover inconsistencies, biases, or errors in their testimony, which can cast doubt on the prosecution’s case.
  6. Expert Witnesses: Use expert witnesses if necessary, such as medical experts, to provide professional opinions that support your defense or undermine the prosecution’s claims.
  7. Legal Arguments: Present legal arguments that question the application of the law to your case, potentially seeking to dismiss the charges if procedural or substantive legal errors are identified.

By employing these strategies, your lawyer aims to create reasonable doubt about your guilt or to demonstrate that your actions were justified under the circumstances, ultimately seeking to have the charges reduced or dismissed.

How does the court determine whether I intended to choke, suffocate, or strangle the complainant?

For an act to have been intentional, you need to have made the decision to bring about an act of a particular kind or particular result. This is a question for the jury, judge or magistrate, who would consider all of the surrounding circumstances including what you did and said.

How does the court determine whether I acted unlawfully?

There are particular circumstances where inflicting harm upon another person will be deemed to have been lawful. For example, choking, suffocating, or strangling another person may be deemed lawful in the context of proportional self-defence. Alternatively, such conduct may be deemed lawful in the context of consensual combat sports, such as mixed martial arts sparring.

How does the court define ‘choking’?

Section 27(1) of the Crimes Act 1900 (ACT) defines “choke” as the application of pressure by a person, to any extent to another person’s neck.

How does the court define ‘suffocating’?

Section 27(1) of the Crimes Act 1900 (ACT) defines “suffocate” as including any of the following:

(a)     obstruct, to any extent, any part of the person’s—

(i)     respiratory system; or

(ii)     accessory systems of respiration;

(b)     interfere, to any extent, with the operation of the person’s—

(i)     respiratory system; or

(ii)     accessory systems of respiration;

(c)     impede, to any extent, the person’s respiration.

How does the court define ‘strangling’?

Section 27(1) of the Crimes Act also defines “strangle” as the application of pressure by a person, to any extent to another person’s neck.

What is an aggravated offence?

An offence will be aggravated if occurring in a family violence context. This means the offender and victim need to be relatives, domestic or former domestic partners, or intimate or former intimate partners.

Q. If I plead guilty or am found guilty of choking, suffocating or strangling, 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.

Q. Should I plead guilty or not guilty to a charge of choking, suffocating or strangling?

This will depend on a number of factors including, for example:

  • Whether you accept that you choked, suffocated, or strangled another person
  • Whether you acted intentionally
  • Whether you acted in self-defence or have another lawful excuse/justification.

You may accept that you wounded another person, 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.

Q. What are the possible defences to a charge of choking, suffocating or strangling?

  • You may deny that you choked, suffocated, or strangled another person
  • You may have been acting in self-defence
  • The complainant may have consented, such as during contact sports or combat sports sparring
  • You may have been acting under duress
  • The conduct was an accident/involuntary and was, therefore not intentional
  • The conduct was committed whilst mentally impaired

Q. Will I go to gaol for choking, suffocating, or strangling another person?

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 this offence is 5 years imprisonment, or 7 years imprisonment in aggravated circumstances. However, these penalties are typically reserved for the most extreme offences, and the type of sentence you receive will depend on the facts of your case, your personal circumstances, your 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, or to persuade the court to reduce the length of the gaol sentence.

Choke, Suffocate or Strangle so as to Render Insensible/Unconscious in the ACT

  1. Choking, Suffocating or Strangling another person so as to render that person insensible or unconscious is an offence under section 27(3)(a) of the Crimes Act 1900 (ACT).
  2. This offence under this section is indictable, meaning it can be finalised in the Magistrates Court or Supreme Court. If the offence is aggravated (family violence context) it must be finalised in the Supreme Court.
  3. The maximum penalty for this offence is 10 years imprisonment. An aggravated offence against this section carries a maximum penalty of 13 years imprisonment.
  4. Any offence against this provision that is committed with the intention to prevent or hinder the lawful apprehension or detention of themselves or any other person, intention to prevent or hinder a police officer from lawfully investigating an act or matter that reasonably calls for investigation, or whilst committing another indictable offence punishable by imprisonment for a maximum period exceeding 10 years, is guilty of an offence punishable by imprisonment for 15 years.
  5. If you plead guilty or are found guilty, a number of different sentences can be imposed. It is almost certain that a criminal conviction will be recorded, and likely that you will be sentenced to full time imprisonment.

If you have been charged with this offence, the prosecutor must prove that:

  1. You intentionally choked, suffocated, or strangled another person
  2. That other person was rendered insensible or unconscious as a result of the choking, suffocation, or strangling
  3. You did not have a lawful excuse

Your lawyer will challenge the intent, dispute the victim’s condition, and establish lawful excuse if present. They’ll scrutinise evidence, cross-examine witnesses, and may use expert testimony. By creating doubt about intent, outcome, or lawful justification, the aim is to reduce charges or secure an acquittal.

How does the court determine whether I intended to choke, suffocate, or strangle the complainant?

For an act to have been intentional, you need to have made the decision to bring about an act of a particular kind or particular result. This is a question for the magistrate, judge or jury, who would consider all of the surrounding circumstances including what you did and said.

How does the court determine whether I acted unlawfully?

There are particular circumstances were inflicting harm upon another person will be deemed to have been lawful. For example, choking, suffocating, or strangling another person may be deemed lawful in the context of proportional self-defence. Alternatively, such conduct may be deemed lawful in the context of consensual combat sports, such as mixed martial arts sparring.

How does the court define ‘choking’?

Section 27(1) of the Crimes Act defines “choke” as the application of pressure by a person, to any extent to another person’s neck.

How does the court define ‘suffocating’?

Section 27(1) of the Crimes Act defines “suffocate” as including any of the following:

(a)     obstruct, to any extent, any part of the person’s—

(i)     respiratory system; or

(ii)     accessory systems of respiration;

(b)     interfere, to any extent, with the operation of the person’s—

(i)     respiratory system; or

(ii)     accessory systems of respiration;

(c)     impede, to any extent, the person’s respiration.

How does the court define ‘strangling’?

Section 27(1) of the Crimes Act also defines “strangle” as the application of pressure by a person, to any extent to another person’s neck.

How does the court determine whether the other person was rendered unconscious or insensible?

Courts will typically determine that a person is unconscious or insensible when he/she is not awake and/or aware of and responding to his or her actions and surroundings. Colloquially, this encompasses when someone is choked, suffocated, or strangled to the extent to which they are deemed to have been ‘knocked out’, ‘passed out’, or otherwise forcefully incapacitated.

What is an aggravated offence?

An offence will be aggravated if occurring in a family violence context. This means the offender and victim need to be relatives, domestic or former domestic partners, or intimate or former intimate partners. Your lawyer will explain all legal terms in detail.

Q. If I plead guilty or am found guilty of this charge, will a conviction be recorded?

It is almost certain 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.

Q. Should I plead guilty to choking, suffocating or strangling someone to render them insensible or unconscious?

This will depend on a number of factors including, for example:

  • Whether you accept that you choked, suffocated, or strangled another person
  • Whether you acted intentionally
  • Whether you acted in self-defence or have another lawful excuse/justification.

You may accept that you wounded another person, 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.

Q. What are the possible defences against a charge of choke, suffocate or strangle so as to render insensible/unconscious?

  • You may deny that you choked, suffocated, or strangled another person
  • You may have been acting in self-defence
  • The complainant may have consented, such as during contact sports or combat sports sparring
  • You may have been acting under duress
  • The conduct was an accident/unvoluntary and was therefore not intentional
  • The conduct was committed whilst mentally impaired

Q. Am I going to go to gaol if I plead guilty to or am found guilty of choking, suffocating or strangling someone to the point of unconsciousness?

Although there are many sentencing alternatives, it is likely that you will go to gaol if you plead guilty or are found guilty.  The maximum penalty for this offence is 10 years imprisonment, or 13 years imprisonment in aggravated circumstances. However, these penalties are typically reserved for the most extreme offences and 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, or to persuade the court to reduce the length of the gaol sentence.

Inflicting Actual Bodily Harm in ACT

 Inflicting Actual Bodily Harm is an offence under section 23 of the Crimes Act 1900 (ACT).

  1. This offence is indictable meaning It can be dealt with in either the Magistrates Court or Supreme Court.
  2. The maximum penalty for this offence is 5 years imprisonment. However, an aggravated offence against this section carries a maximum penalty of 7 years imprisonment. If dealt with in the magistrates court the maximum penalty is 2 years imprisonment.
  3. If you plead guilty, or are found guilty, a number of different sentences can be imposed. It is likely that a criminal conviction will be recorded, and you may be sentenced to full time imprisonment.

If you have been charged with inflicting actual bodily harm, the prosecutor must prove that you:

  1. Inflicted harm upon another person
  2. The harm suffered constitutes actual bodily harm
  3. You acted intentionally or recklessly

How does the court determine whether I intended to inflict actual bodily harm on another person?

For an act to have been intentional, you need to have made the decision to bring about an act of a particular kind or particular result. This is a question for the jury, who would consider all of the surrounding circumstances including what you did and said.

What does ‘recklessness as to inflicting actual bodily harm’ mean?

Being ‘reckless as to inflicting actual bodily harm’ means that you realised the risk that actual bodily harm may possibly be inflicted on another person as a result of your actions but continued regardless. This is a question for the jury, who would consider all of the surrounding circumstances.

How does the court determine whether I inflicted actual bodily harm?

Whether you inflicted actual bodily harm on another person is a matter of fact and will therefore be determined by the magistrate, judge or jury. There must be a sufficiently direct link between your conduct and the harm inflicted upon the other person and no discernable alternative intervening cause or factor to prove this element. This assessment is ultimately a matter of causation and will be examined considering all of the surrounding circumstances, including what you did and said.

A good lawyer enhances your chances of achieving a favourable outcome by meticulously analysing the facts, challenging the prosecution’s evidence, and effectively presenting your defence.

What is ‘actual bodily harm’?

In R v Donovan [1934] 2 KB 498, the court determined that to constitute actual bodily harm an injury need not be permanent, but “must be more than merely transient or trifling”. The injury does not have to be particularly serious but must be more than an annoyance or mere inconvenience. This definition ranges from cuts, scratches and bruises to more serious injuries such as fractures and serious psychological harm.

What is an ‘aggravated offence’?

An offence will be aggravated if occurring in a family violence context. This means the offender and victim need to be relatives, domestic or former domestic partners, or intimate or former intimate partners.

Q. If I plead guilty or am found guilty of inflicting actual bodily harm, will a conviction be recorded?

It is 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.

Q. Should I plead guilty to inflicting actual bodily harm ?

This will depend on a number of factors including, for example:

  • Whether you accept that you inflicted harm upon another person
  • Whether the injury inflicted amounts to actual bodily harm
  • Whether you acted intentionally or recklessly
  • Whether you acted in self-defence or have another lawful excuse/justification

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 charge such 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.

Q. What are the possible defences against a charge of inflicting actual bodily harm ?

Your lawyer will conduct a thorough investigation to gather all relevant facts. This includes interviewing witnesses, reviewing medical records, and collecting any available video or physical evidence.

  • You may deny that you inflicted harm upon the other person
  • You may agree that you inflicted harm, but the injury did not amount to actual bodily harm.
  • You may have been acting in self-defence
  • You may have been acting under duress
  • Your conduct was an accident/involuntary and not reckless
  • Your conduct was committed whilst mentally impaired

Q. Am I going to go to gaol if I plead guilty to or am found guilty of inflicting actual bodily harm against someone?

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 inflicting actual bodily harm is 5 years imprisonment or 7 years imprisonment in aggravated circumstances, although these penalties are typically reserved for the most extreme offences.

The type of sentence you receive will ultimately depend on the facts of your case, your personal circumstances, criminal history, and a variety of other factors.

It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to gaol, or to persuade the court to reduce the length of the gaol sentence.

Causing Grievous Bodily Harm in ACT

  1. Causing Grievous Bodily Harm is an offence under section 25 of the Crimes Act 1900 (ACT).
  2. This offence is indictable meaning It can be dealt with in either the Magistrates Court or Supreme Court.
  3. The maximum penalty for this offence is 5 years imprisonment.
  4. If you plead guilty, or are found guilty, a number of different sentences can be imposed. It is likely that a criminal conviction will be recorded, and you may be sentenced to full time imprisonment.

If you have been charged with causing grievous bodily harm, the prosecutor must prove that you:

  1. Caused grievous bodily harm to another person
  2. Your actions and/or omissions were unlawful or negligent

Your lawyer will challenge the causation, dispute intent, question lawfulness, explore defenses like self-defense, challenge evidence, negotiate plea bargains if applicable, and prepare for trial if necessary. Their aim is to cast doubt on the prosecution’s case and secure the best possible outcome for you.

How does the court determine whether I acted unlawfully?

In particular circumstances, inflicting particular types of harm upon another person will be deemed lawful. For example, causing grievous bodily harm may be deemed lawful in the context of proportional self-defence. Nonetheless, any conduct that causes grievous bodily harm will be considered unlawful without any such lawful excuse.

What is the difference between an act and an omission?

In particular criminal law circumstances, a person may be held criminally liable for negligence due to either their conduct (an act) or their failure to act (an omission). This principle of liability for omission applies when a particular person has been negligent in failing to take a necessary precaution or measure that they ought to have taken, and this negligence has resulted in the injury or death of another person.

How does the court determine whether I acted negligently?

Section 21 of the Criminal Code 2002 (ACT) states that a person is deemed negligent if their conduct merits criminal punishment because it involves both “such a great falling short of the standard of care that a reasonable person would exercise in the circumstances” and “such a high risk that the physical element exists or will exist”. Whether your conduct is deemed to have fallen within these elements is a question of fact for the jury, who would consider all of the surrounding circumstances.

How does the court determine whether I caused the grievous bodily harm?

Whether you caused the grievous bodily harm suffered by another person is a matter of fact and will therefore be determined by either the magistrate, judge or jury. There must be a sufficiently direct link between your conduct and the harm inflicted upon the other person and no discernable alternative intervening cause or factor to prove this element. This assessment is ultimately a matter of causation and will be examined with consideration for all of the surrounding circumstances including what you did and said.

What is ‘grievous bodily harm’?

The Crimes Act 1900 (ACT) defines grievous bodily harm as “any permanent or serious disfiguring of the person”. In DPP v Smith [1961] AC 290 and Swan v R [2016] NSWCCA 79, the courts clarified that this refers simply to any injury deemed “really serious”. This might includes a fractured eye socket, a broken bone, or a severe laceration to the face which requires stitching and will permanently leave a scar. To be found guilty of this offence, the prosecution must prove that recklessly inflicted an injury of this magnitude upon another person. Inflicting an injury that does not amount to grievous bodily harm may result in you being charged with the lesser offence of common assault or recklessly inflicting actual bodily harm.

Q. If I plead guilty or am found guilty of grievous bodily harm, will a conviction be recorded?

It is 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.

Q. Should I plead guilty to inflicting grievous bodily harm?

This will depend on a number of factors including, for example:

  • Whether you accept that you caused grievous bodily harm to another person
  • Whether the injury inflicted amounts to grievous bodily harm
  • Whether you acted unlawfully or whether by act or omission you acted negligently
  • Whether you acted in self-defence or have another lawful excuse/justification.

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 charge such as inflicting actual bodily harm
  • 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 statement of facts for sentencing.

What are some possible defences to the charge of inflicting grievous bodily harm?

  • You may deny that you caused harm to another person
  • You may agree that you caused harm, but the injury did not amount to grievous bodily harm.
  • You may have been acting in self-defence
  • You may have been acting under duress
  • Your conduct was an accident/unvoluntary and not negligent
  • Your conduct was committed whilst mentally impaired

Q. Am I going to go to gaol if I plead guilty to or am found guilty of inflicting grievous 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 causing grievous bodily harm is 5 years imprisonment, although these penalties are typically reserved for the most extreme offences.

The type of sentence you receive will ultimately depend on the facts of your case, your personal circumstances, criminal history, and a variety of other factors.

It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to gaol, or to persuade the court to reduce the length of the gaol sentence.

Wounding in the ACT

  1. Wounding is an offence under section 21 of the Crimes Act 1900 (ACT).
  2. This offence is indictable, meaning it can be dealt with in either the ACT Magistrates Court or Supreme Court
  3. The maximum penalty for this offence is 5 years imprisonment. An aggravated offence (family violence context) against this section carries a maximum penalty of 7 years imprisonment.
  4. If you plead guilty or are found guilty, a number of different sentences can be imposed. A criminal conviction is likely to be recorded, and you may be sentenced to full-time imprisonment.

If you have been charged with wounding, the prosecutor must prove that:

  1. You intentionally wounded another person
  2. You did not have a lawful excuse

Your lawyer will scrutinise the evidence to challenge the prosecution’s case regarding intent and lawful justification. They may present evidence, witness testimony, or legal arguments to demonstrate that the wound was unintentional, that you acted in self-defence or defence of others, or that extenuating circumstances justified your actions. By doing so, your lawyer aims to create doubt about your guilt and potentially secure a favourable outcome for you.

How does the court determine whether I intended to wound the complainant?

For an act to have been intentional, you need to have made the decision to bring about an act of a particular kind or particular result. This is a question for the magistrate, judge or jury, who would consider all of the surrounding circumstances including what you did and said.

How does the court determine whether I wounded someone?

The term wound or wounding is not itself defined within the Crimes Act. However, the definition of wounding in criminal law context has been settled at common law, with the High Court in Vallance v The Queen (1961) 108 CLR 56 recognising that “a wound in criminal cases is an injury to the person, by which the skin is broken”. The consequences of a wounding may be quite minor and need not involve the use of a weapon, yet still constitute an offence under this provision.

What is an ‘aggrevated assault’?

An offence will be one aggravated if occurring in a family violence context. This means the offender and victim need to be relatives, domestic or former domestic partners, or intimate or former intimate partners.

Q. If I plead guilty or am found guilty of wounding in the ACT, will a conviction be recorded?

It is 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.

Q. Should I plead guilty or not guilty to a charge of wounding?

This will depend on a number of factors including, for example:

  • Whether you accept that you wounded another person
  • Whether you acted intentionally
  • Whether you acted in self-defence or have another lawful excuse/justification

You may accept that you wounded another person, 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.

Q. What are some possible defences to a charge of wounding?

  • You may deny that you wounded the victim
  • You may have been acting in self-defence
  • The complainant may have consented, such as during contact sports or combat sports sparring
  • You may have been acting under duress
  • The wounding was an accident/unvoluntary and therefore not intentional
  • The wounding was committed whilst mentally impaired

Q. Am I going to go to gaol if I plead guilty to or am found guilty of wounding another?

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 wounding is 5 years imprisonment, or 7 years imprisonment in aggravated circumstances. However, these penalties are typically reserved for the most extreme offences and 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, or to persuade the court to reduce the length of the gaol sentence.

Assault with Intent to Commit Other Offence in the ACT

  1. Under section 22 of the Crimes Act 1900 (ACT), assault with intent to commit other offences is an offence.
  2. This offence is indicatable, meaning it can be dealt with in either the ACT Magistrates Court or Supreme Court.
  3. The maximum penalty for this offence is 5 years imprisonment.
  4. An assault can, but does not have to, include the application of physical force.
  5. If you plead guilty or are found guilty, a number of different sentences can be imposed. A criminal conviction will likely be recorded, and you will possibly be sentenced to fulltime imprisonment.

If you have been charged with assault with intent to commit another offence, the prosecutor must prove that:

  1. You assaulted another person.
  2. You did so with the intent to commit another offence punishable by imprisonment for a maximum period of 5 years or longer.

Securing a good lawyer is crucial because they provide legal expertise, strategic planning, and protection of your rights throughout the legal prosecution. They communicate on your behalf, negotiate effectively with prosecutors, and provide strong courtroom representation if your case goes to trial. A skilled lawyer maximises your chances of success by developing tailored defense strategies and providing both legal guidance and emotional support. Ultimately, they work tirelessly to achieve the best possible outcome for you, whether through dismissal of charges, acquittal, or negotiation of favourable terms.

What is ‘unlawful touching or violence’?

Your conduct or actions may still be considered assault even if no physical contact is made with the complainant if your words or actions caused them to fear that immediate and unlawful violence would be applied. Examples include directly threatening somebody by shouting at them, or merely moving towards somebody in an intimidatory manner.

The courts have accepted that this definition excludes any unwanted contact that would naturally occur during the course of everyday life, such as brushing up against somebody or bumping into them whilst walking along a busy street/pavement.

How does the court determine whether I intended to commit another offence?

For an act to have been intentional, you need to have made the decision to bring about an act of a particular kind or particular result. This is a question for the jury, judge or magistrate, who would consider all of the surrounding circumstances including what you did and said. In these circumstances, the jury or Magistrate will consider the surrounding circumstances to determine whether it can be proven beyond reasonable doubt that the assault committed was done so with the requisite intent to commit another offence. It is important to remember that the other offence must be punishable by imprisonment for a maximum period of 5 years or longer and any other less serious offence will not make out the charge.

Q. If I plead guilty or am found guilty of assault with intent to commit another offence, will a conviction be recorded?

It is 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.

Q. Should I plead guilty or not guilty to this charge?

This will depend on a number of factors including, for example:

  • Whether you accept that you assaulted the complainant
  • Whether you accept that you did so with the intent to commit another offence
  • Whether the other offence you intended to commit carries a maximum penalty of 5 years imprisonment or longer.
  • Whether you acted in self-defence or have another lawful excuse/justification.
  • Whether you accept that the complainant feared the application of immediate and unlawful violence
  • Whether you accept that the complainant had not consented
  • Whether the act may be considered to be a lawful correction

You may accept that you assaulted the complainant, but:

  • Your lawyer may persuade the prosecutor to accept a guilty plea to a less serious charge such 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 statement of facts for sentencing.

Q. What are the possible defences my lawyer can take against the charge?

  • You may deny that you assaulted the victim
  • You may deny that you intended to commit another offence
  • You may deny that the offence you intended to commit carries a maximum penalty of 5 years imprisonment or longer.
  • You may have been acting in self-defence
  • The complainant may have consented, such as during contact sports or combat sports sparring
  • The contact may be fall under conduct deemed acceptable during the course of everyday life
  • The conduct may be considered lawful correction, which allows for the reasonable and warranted discipline of children
  • You may have been acting under duress
  • The assault was an accident/unvoluntary and not reckless
  • The assault was committed whilst mentally impaired

Q. Am I going to go to gaol if I plead guilty to or am found guilty of the charge assault with intent to commit other offence?

Though imprisonment is not a certain outcome for an offence of assault with intent to commit other offence, and there are many sentencing alternatives, it is still possible that you will go to gaol if you plead guilty or are found guilty.

The maximum penalty for common assault is 5 years imprisonment, although these penalties are typically reserved for the most extreme offences.

The type of sentence you receive will ultimately depend on the facts of your case, your personal circumstances, criminal history, and a variety of other factors. It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to gaol, or to persuade the court to reduce the length of the gaol sentence.

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 about 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

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