Engaging in a mutual fight—where both parties consent to physical violence—does not exempt individuals from criminal liability in Western Australia.

Even with a shared agreement, participants can be charged with common assault or more severe offences, depending on the circumstances and outcomes of the altercation.​

At Chambers Legal, our team of assault lawyers has vast experience dealing with common assault charges.

We understand that facing any criminal charge is a difficult and stressful time for the accused and those closest to them. We will always look to support you as we work towards achieving the best possible outcome.

This article explains how the WA court system approaches assaults emerging from mutual fights. If you have been charged with common assault and feel as though these circumstances are relevant to you, you can contact Chambers Legal on (08) 9500 8915 or at [email protected].

Alternatively, we also offer free 15 minute phone consultations.

Understanding Common Assault

Under Western Australia’s Criminal Code Act Compilation Act 1913, common assault is defined as:​

• The unlawful application of force to another person without their consent.​
• Causing another person to apprehend the immediate application of force without lawful excuse.​

It is important to understand that physical injury is not a requirement for a common assault charge. What is important is simply a threat or attempt to apply force.

The maximum penalty for standard common assault is 18 months imprisonment or a fine of $18,000.

Common assault can be considered more serious if aggravating factors are present. These include the victim being over the age of 60 years and the offender being in company with others.

For this offence, penalties can increase to three years imprisonment or a fine of $36,000.

You can read more about aggravated assault here.

Consent and Mutual Fights

Consent helps determine the legality of certain physical interactions, most notably contact sports. However, its application is limited in the context of mutual fights.

The law dictates that individuals cannot legally consent to any physical harm that results in bodily injury. This means that even if both parties agree to engage in a fight, they can still be prosecuted for assault if injuries occur.

In simpler terms, when bodily harm is intended or caused, consent becomes irrelevant, meaning most fights are unlawful even with a mutual agreement. A conviction for common assault arising from a mutual fight could result in any of the penalties discussed above.

Potential Legal Defences

Although both parties can be prosecuted for assault arising from an agreed upon fight, there are still defences available to the accused.

It is important to consult a criminal defence lawyer, whose knowledge and understanding can lead the accused toward the best possible outcome. Considering the facts of each case, a lawyer may advise pursuing:

• Self-Defence: If a person genuinely believes they are under threat and responds with a proportionate level of force to protect themselves, they may claim self-defence. The response must be deemed reasonable under the circumstances. ​For more information of self-defence in assault cases, click here.
• Defence of Another: Similar to self-defence, this applies when an individual uses reasonable force to protect someone else from immediate harm.​

Chambers Legal: Dedicated, Perth Based Common Assault Lawyers

If an assault occurs during a mutual fight, no party is immune from assault charges. If you find yourself facing charges arising from such an incident, it is crucial to engage an assault lawyer as soon as possible. A lawyer will help you navigate the complexities of the legal system and explore potential defences tailored to the facts of your case.

At Chambers Legal, we recognise that assault charges can emerge from complex situations. Whether it be self-defence, mistaken identity or provocation during a heated dispute, you may feel you have a strong chance of a successful defence.

To support you during the legal process, we hold ourselves to values of transparency and integrity. We are fair and honest in our pricing, providing proper cost notice. Furthermore, our advice is tailored to each client and always provided in writing.

If you have been accused of common assault or any other charge, please contact Chambers Legal for advice. We can be reached on (08) 9500 8915 or at [email protected].

If you would rather, you can book a free 15 minute phone consultation.

If you have been accused of common assault, but feel you are innocent, you may insist that you did not make any contact with the alleged victim. However, it is important to understand that common assault encompasses more than just physical contact.

In Western Australia, individuals can indeed be charged with common assault even without making direct physical contact with another person.​ Under Section 222 of the Criminal Code Act Compilation Act 1913, an assault is defined as:​

• The application of force to another person without their consent; or​
• An attempt or threat to apply force, where the person making the threat has the apparent ability to carry it out.​

This means that actual physical contact is not a prerequisite for an assault charge. Charges can come from someone causing another to fear imminent and unlawful force. ​Actions such as threatening, spitting and intimidating can be considered assault.

This article outlines different kinds of non-contact assault. If you would like further information or are seeking legal advice, you can contact a Chambers Legal common assault lawyer on (08) 9500 8915 or at [email protected].

Our team understands that facing a criminal charge is an incredibly stressful time for the accused and those closest to them. We will always look to support you as we work toward the best possible outcome.

Examples of Non-Contact Assault

The wording of the Criminal Code allows for several non-contact actions to be considered common assault. It is possible to be charged for:​

• Threatening Gestures: Such as raising a fist or brandishing an object in a threatening manner.
• Verbal Threats: Verbally indicating an intent to inflict harm. This is taken more seriously when the intent is accompanied by actions suggesting the act could happen immediately.​
• Intimidating Behaviour: Advancing towards someone aggressively, causing them to fear possible violence.​
• “Fake” Punches or Swings: Pretending to hit someone can cause a fear of imminent harm.

Other actions that may be considered common assault include spitting at someone, cornering someone or throwing an object that misses.

The key element of these actions is that the victim perceives an immediate threat. They are also likely to believe that the aggressor has the capability to carry out the threatened action. ​

Penalties for Common Assault

In Western Australia, the maximum penalty for common assault is 18 months imprisonment and/or a fine of $18,000.

Under aggravating circumstances, the maximum penalty is increased to three years imprisonment and/or a fine of $36,000. Aggravating circumstances are those that make the crime more serious and, in turn, the penalties more severe. Aggravating factors for this charge may include:​

• The offender being in the company of others.​
• The victim being over 60 years of age.​
• The offender causing bodily harm.​

Defences Against Common Assault Charges

In Western Australia, several defences may be applicable to a common assault charge, including:​

• Self-Defence: Acting to protect oneself, another person or property from immediate harm.​
• Consent: Situations where the alleged victim consented to the act, such as in contact sports.​
• Accident: The act was unintentional and occurred without negligence.​

It is always advised to engage a common assault lawyer. They will be able to analyse the specifics of a case and determine the viability of all defence options.

Find a Common Assault Lawyer in Perth with Chambers Legal

Understanding the scope of actions and behaviours that constitute assault is critical if you are to avoid unintended legal consequences.

If you facing these charges, it is recommended to consult a common assault lawyer as soon as possible. An experienced professional understands the complexity of Western Australian assault law and can assist you in submitting a plea and exploring potential defences.

At Chambers Legal, we pride ourselves on working with transparency and integrity. Our pricing is fair and honest, accompanied by proper cost notice. All legal advice is tailored to each client and always provided in writing.

Our team is available to support you through criminal proceedings. For a cost and obligation free consultation, you can contact Chambers Legal on (08) 9500 8915 or at [email protected].

Alternatively, you can book a free 15 minute phone consultation.

In Western Australia, engaging in a physical altercation with a co-worker can lead to legal consequences, including charges of common assault. Whilst these charges are defendable, it is important to engage an experienced lawyer so that you understand your charges and are prepared for the legal process.

At Chambers Legal, we have a team of criminal defence lawyers with vast experience defending these assault charges. They understand that the difficulty and stress of facing a criminal charge does not only affect the accused, but also those closest to them.

If you have been charged with common assault following an incident at work and would like to speak with a lawyer, Chambers Legal would be more than happy to assist.

We can be contacted on (08) 9500 8915 or at [email protected]. If you would prefer, you can book a free 15 minute phone consultation.

What is Common Assault?

In Western Australia, Section 313 of the Criminal Code Act Compilation Act 1913 defines common assault as:​

• The unlawful application of force to another person without their consent; or​
• The threat of applying force, causing the person to apprehend immediate and unlawful violence.​

It is important to understand that physical injury is not a requirement for a common assault charge. Legally speaking, the act of applying force or causing someone to fear imminent harm is what is important. ​

How Does It Apply in the Workplace?

As with confrontations in public or private settings, altercations between co-workers can result in common assault charges. For example:

• Physical Altercations: Actions such as pushing, shoving or striking a colleague can constitute common assault, regardless of the severity of the act.​
• Threatening Behaviour: Verbally threatening a co-worker or making menacing gestures that cause fear of immediate harm can also lead to assault charges.​

How Can Your Employer Respond?

Employers in Western Australia are legally obligated to provide a workplace that is free from violence, aggression and harassment. Even if a workplace fight is relatively minor or seems mutual, employers may treat it as a serious misconduct issue. Outcomes could include:

• Formal warnings or disciplinary action
• Suspension from duties pending investigation
• Immediate termination of employment, especially if the incident involved injury, threats, or created risk to others

If you have been involved in a workplace incident that could lead to assault charges, you should seek both criminal and employment law advice as early as possible.

What are the Penalties for Common Assault?

Under the Criminal Code, the maximum penalty for common assault is 18 months’ imprisonment and/or a fine of up to $18,000.​ Under aggravating circumstances, those penalties can increase to a maximum of three years’ imprisonment and/or a fine of up to $36,000.

Aggravating circumstances are those which are seen as making an offence more severe. As such, the penalties are harsher. For common assault, aggravating factors could include:

• The accused being in company with others
• The victim being over 60 years old
• The offence being racially motivated

If you have been charged with common assault following a fight at work, it is recommended to engage a specialised workplace assault lawyer. This is the surest way of understanding your charges and whether your case involves aggravating circumstances

How Can Common Assault Be Defended?

There are several defences applicable to common assault charges that arise from workplace incidents:

• Self-Defence: Acting to protect oneself from immediate harm, provided the response is proportionate to the threat faced.​
• Defence of Another: Protecting a colleague from immediate harm using reasonable force.​
• Lack of Intent: The act was accidental or involuntary – there was no intent apply unlawful force or cause fear of immediate harm.

After assessing the facts of a case, a lawyer will be able to provide the accused person a thorough assessment of the defences open to them and their viability.

Find a Common Assault Lawyer in Perth with Chambers Legal

If you are facing criminal charges as a result of a workplace incident, obtaining prompt legal advice is crucial in protecting yourself legally and professionally.

At Chambers Legal, we recognise that these charges can emerge from complex situations. Whether it be self-defence or an unintended act, you may feel you have a strong chance of defending your charges.

Our team prides itself on working with transparency and integrity. We are fair and honest in our pricing, providing proper cost notice. Furthermore, our advice is tailored to each client and always provided in writing.

If you have been accused of common assault or any other charge, please contact Chambers Legal for advice. We can be reached on (08) 9500 8915 or at [email protected].

If you would rather, you can book a free 15 minute phone consultation.

In Western Australia, assault charges are divided into two categories: common and aggravated assault.

If you have been charged with one of these offences, you may not fully understand the allegations against you and the penalties you are facing. Contacting an experienced criminal defence lawyer will ensure that you are protected and prepared for trial.

At Chambers Legal, our team of common and aggravated assault lawyers can provide you with this assistance. Along with a thorough understanding of WA criminal law, we recognise that assault allegations can be incredibly stressful for the accused and their family. Because of this, we pride ourselves on working with transparency and integrity.

This article outlines the differences between common and aggravated assault. If you would prefer to speak with a member of our team, you can you can book a free 15 minute phone consultation.

What is Common Assault?

In Western Australia, common assault is one of the most frequently laid criminal charges. It applies when someone intentionally applies force to another person without lawful excuse or does something that causes that person to reasonably fear they are about to be hurt.

Importantly, you don’t have to physically injure someone to be charged with common assault. Legally speaking, the act of applying force or causing someone to fear imminent harm is enough. ​This means that a slap, a push or even raising a fist in a threatening way can constitute common assault.

For example, if you grab someone by the shirt during an argument or ‘swing and miss’ — charges could be laid if the other person feared for their safety or if some force was used.

Under the Criminal Code, the maximum penalty for common assault is 18 months’ imprisonment and a fine of up to $18,000. ​

What is Aggravated Assault?

An assault is considered aggravated when it happens under circumstances that make it more serious in the eyes of the law. This doesn’t change the definition of assault itself, but takes into account the context in which the alleged offence occurred.

In the eyes of the court, the presence of aggravating factors means that the offence had a greater impact on the victim or community. Therefore, these offences are subject to harsher penalties. The maximum penalty for aggravated assault to three years’ imprisonment and a fine of up to $36,000. ​

For an assault charge, some circumstances of aggravation could be:​

• The offender being in a family or domestic relationship with the victim.​
• A child being present during the commission of the offence.​
• The offence constituting a breach of a restraining order.​
• The victim being aged 60 years or older.​
• The offence being racially motivated.

How Are They Different?

While both common and aggravated assault involve unlawful force or the threat of force, the main difference lies in the circumstances surrounding the offence.

The key differences include:

• Context of the Assault: Common assault typically involves isolated incidents where no extra risk factors are present. Aggravated assault, on the other hand, occurs when the law considers the situation to be more serious.
• Presence of Aggravating Factors: Aggravated assault involves the presence of specific “circumstances of aggravation” defined in the Criminal Code.
• Penalties: The penalties for aggravated assault are significantly higher than for common assault.
• Court Process: In some cases, aggravated assault may be treated more seriously by the prosecution, meaning it could be dealt with in a higher court or pursued more aggressively than a standard common assault.

In short, aggravated assault isn’t a different type of offence. It is a common assault made more serious by who it was against, how it happened and what rules were broken in the process.

Find a Common or Aggravated Assault Lawyer at Chambers Legal

Recognising the differences between common and aggravated assault is essential, as the legal consequences vary substantially. If you are facing either of these charges, it is critical to contact a lawyer as soon as possible.

Chambers Legal has a dedicated team with a thorough understanding of Western Australian law.

Understanding the stress and seriousness of facing a criminal charge, we pride ourselves on working with integrity and transparency. We are fair and honest in our pricing, providing proper cost notice. Our legal advice is tailored to each client and always provided in writing.

If you have been charged with assault and would like to speak with a lawyer, please contact Chambers Legal on (08) 9500 8915 or at [email protected].

Alternatively, you can book a free 15 minute phone consultation.

In Western Australia, individuals charged with common assault may be eligible to apply for a Spent Conviction Order (SCO), which can limit the long-term impact of a criminal record.

This could mean that a conviction will not appear on the accused’s police checks and won’t affect their employment, travel or other opportunities.

It is critical to contact a common assault lawyer to ensure an application is constructed in the best possible way. At Chambers Legal, our team has extensive experience applying for SCOs.

If you have been charged with assault or would like assistance with an SCO, you can book a free 15 minute phone consultation.

What is Common Assault?

Under the Criminal Code Act Compilation Act 1913, common assault covers a broad range of behaviours where a person unlawfully applies force to someone else or causes them to fear that force is about to be used.

This may include:

• Pushing, slapping or grabbing someone during an argument
• Swinging a punch but missing
• Verbally threatening someone while making a physical gesture, like raising a fist

Importantly, physical injury is not required for a common assault charge. Minimal contact or a credible threat of violence can be enough if the victim reasonably feared that they were about to be harmed.

Common assault carries a maximum penalty of 18 months imprisonment and/or a fine of up to $18,000, though penalties may be higher if the offence is committed in aggravating circumstances.

What is a Spent Conviction and How Can You Apply for Sentencing

An SCO can limit the long-term impact of a criminal record. This means that the convicted person can move on without the conviction appearing on a National Police Certificate or affecting employment and other opportunities.

When being sentenced for a common assault charge, the accused can request the court consider issuing a SCO. The court will assess the following criteria:​

1. Likelihood of Reoffending: The court must be satisfied that the accused is unlikely to commit a similar offence in the future.​
2. Nature of the Offence: The offence should be considered trivial and not be of a serious nature.​
3. Character Assessment: The accused’s prior character and any previous criminal history will be taken into account.​

It’s important to note that the court cannot make an SCO if the accused is sentenced to imprisonment (including suspended sentences) or an intensive supervision order.

It is always recommended to consult an experienced common assault lawyer to ensure that you fully understand the charges you are facing and whether an SCO is possible

Post-Sentencing Applications for Spent Convictions

If an SCO was denied at the time of sentencing, the accused may apply to have the conviction spent after a period of time, typically 10 years from the date of conviction.

Lesser convictions with a penalty of imprisonment for less than one year or a fine of $15,000 or less are handled by the Commissioner of Police.

For serious convictions—involving imprisonment for more than one year or fines exceeding $15,000—an application must be made to the District Court. ​

Find a Common Assault Lawyer in Perth with Chambers Legal

Securing a Spent Conviction Order for a common assault charge can reduce the long-term impact of a criminal record, reopening opportunities that were seemingly lost.

They are, however, complex legal orders and it is best to seek the advice of a common assault lawyer. An experienced professional can help you navigate the application process effectively and ensure that you understand your rights and obligations fully.​

At Chambers Legal, we understand the difficulties caused by an assault conviction and how an SCO may help relieve any stress. As such, we dedicate ourselves to the application process, working with integrity and transparency. We are fair and honest in our pricing, providing proper cost notice. Our legal advice is tailored to each client and always provided in writing.

If you have been charged with assault and would like to speak with a lawyer, please contact Chambers Legal on (08) 9500 8915 or at [email protected].

Alternatively, you can book a free 15 minute phone consultation.



Accused of Sexual Assault and Wondering What to Do?

The term sexual offences refers to a range of unlawful acts that are sexual in nature. They are considered serious offences and if found guilty, defendants often face prison time.

If you are accused of a sexual offence, the gravity of the situation may make you feel stressed and confused.  

This is a common experience for many, so we have compiled the information you need to navigate the process. This article outlines the things you should and shouldn’t do to ensure that you can achieve the best possible result.

If you need more information and would like to speak to a sexual offence lawyer, you can book a free 15 minute phone consultation.

What should I do?

Create a record of events

As soon as possible and in as much detail as you can, create a written account of your version of events. You can support this record with other information, such as:

1. Any messages or communication between you and the person who has accused you (complainant).
2. Any CCTV footage of you and the complainant from the time in question. It is important to retrieve this as quickly as possible, as CCTV can be deleted after a certain period of time.
   

Do not let anyone see this document except for you and your lawyer.

This information could be used as helpful evidence should you go to trial. If you don’t collect it as soon as possible, that evidence may be lost.

Make a list of potential witnesses

Consider those who might have been present to witness the incident.

Write down their names and contact details and provide them to your lawyer.

Comply with your bail

If you have been charged and released on bail, make sure you comply with conditions imposed upon you.

Breaching bail is seen as a serious offence and can result in a separate criminal charge.

Click here to read more about applying for bail.

What shouldn’t I do?

Do not contact the person who has accused you (or potential witnesses)

If a person has accused you of sexual assault, do not contact them. If you do, you put yourself at risk of:

1. Witness tampering charges: A charge of attempting to intimidate, influence or harass a witness.
2. Impacting legal proceedings: Contact with the accuser could be used as evidence against you, undermining your credibility in court.
   
3. Breach of bail charges: If you are out on bail, a standard condition is that you must not contact the complainant. If you do, you risk breaching your bail and getting additional charges.
   

The same rules apply to witnesses, so you should not contact any of the people on the witness list that you give to your lawyer.

Make a list of potential witnesses

Consider those who might have been present to witness the incident.

Write down their names and contact details and provide them to your lawyer.

Do not post about the incident on social media

Posting about the incident or the accusation on social media can have serious consequences. These include:

1. Self-incrimination: Anything that you post can be used as evidence in court and harm your defence, regardless of whether it has been taken out of context.
2. Breach of bail: Posting about the incident may be a breach a non-contact or gag order, meaning that you could be charged with breach of bail.
   

Do not ignore the police

Do not ignore any contact you may receive from the police. Instead, contact a criminal lawyer as soon as possible. A lawyer can speak to the police on your behalf and arrange a time for you speak with them.
If you are contacted by the police, you are only required to provide your name, date of birth and address.
Chambers Legal advises that you only answer further questions once you have received legal advice. This is because the police do not always work in your best interests.
There is no legal risk in doing this, as remaining silent cannot be used as evidence of guilt.
You can read more about talking to the police here.

Do I need a lawyer?

Sexual offence charges are serious and often result in imprisonment if the defendant is found guilty. Because of this, Chambers Legal recommends consulting a specialised sexual offence lawyer to ensure you are best prepared for trial.
A lawyer can offer advice on:

1. The charge itself
2. The defences and pleas open to you
   
3. If found guilty, what sentence you may receive
   

A lawyer can also represent you in initial hearings in the Magistrates Court, where you may seek an adjournment and enter your plea. They will then represent you until your hearing and trial end or until you choose otherwise.
Chambers Legal understands that the seriousness of sexual offence charges can place significant stress of the defendant. To help ease this stress, we make sure our clients are fully aware of their rights and options and do so with compassion, integrity and respect.

Find a sexual offence lawyer in Perth

Chambers Legal has an experienced team of sexual offence lawyers who can advise you on legal defences and prospects of success at trial.

Our team prides itself on working with integrity and transparency. We are fair and honest in our pricing, providing proper cost notice. Our legal advice is tailored to each client and always provided in writing.

If you have been charged with a sexual offence and would like legal advice, please contact Chambers Legal on (08) 9500 8915 or at [email protected].

Alternatively, you can book a free 15 minute phone consultation.

In some circumstances, it may be appropriate to make a plea offer or submission to the prosecution in order to discontinue your charge, downgrade or amend your charge to a lesser or different offence, or amend the facts of the charge.

The prosecution is guided by the policies set out in the DPP Statement of Prosecution Policy and Guidelines. These Guidelines set out the factors to consider in determining whether a prosecution is in the public interest, the factors to consider when determining whether there are reasonable prospects of conviction, and the factors to consider in charge negotiations.

It is useful to consider the Guidelines and refer to the relevant parts when negotiating with the prosecution, usually with the assistance of your criminal defence lawyer.

What is the purpose of plea negotiations?

A plea offer or submission to the prosecution may be the difference between proceeding to trial and having your matter dealt with at an early stage, saving you in legal fees in the long run.

The plea offer or submission would set out to explain what we are seeking, the basis in support of what we are seeking, and where applicable, attach additional evidence or documentation in support.

Below are the main types of plea offers you can make, with some real-life examples from cases that our team of Perth criminal defence lawyers have worked on.

Submission to discontinue your charge

The submission to discontinue your charge may be based on a number of factors, either in isolation or in combination. For example, we could submit that the prosecution has a lack of evidence to obtain a conviction, or it may be that it is not in the public interest for the matter to be prosecuted.

If there is a lack of evidence to convict you, we would ordinarily set out the points of prosecution evidence which are weak, and which we say would be unable to prove the charge beyond a reasonable doubt.
Pursuant to the prosecution guidelines, matters should only be prosecuted if they have reasonable prospects of conviction.

Real case example: Our client was charged with Robbery. We wrote to the prosecution pointing out that their case was circumstantial, and would not be able to be proven beyond a reasonable doubt. The prosecution discontinued the charge.

Real case example: Our client was charged with Breach of Family Violence Restraining Order. Our client was retrieving personal property from the marital home, and was waiting in a vehicle on the verge of his neighbour’s house. He breached the restraining order by being within a certain distance of the marital home. Our client had good antecedents, and because of his job, any conviction (even if he got a spent conviction) would have an enormous impact on his life. We made a submission saying that the prosecution would not be in the public interest. The prosecution discontinued the charge.

Submission to downgrade or amend your charge

In support of downgrading or amending your charge, it may be submitted that the facts would still satisfy the elements of a lesser or alternate charge. The benefit of this may be that the lesser or alternate charge may have a lower maximum penalty available, which may result in you obtaining a lesser sentence.

Here is a real case example: Our client was charged with Act with intent to harm causing bodily harm, which carried a maximum penalty of 20 years’ imprisonment. As the client’s criminal defence lawyers, we successfully negotiated to have the charge downgraded to Act causing bodily harm, heard summarily in the Magistrates Court, where the jurisdictional limit on penalty was 3 years imprisonment and a $36,000 fine.

Another client client was charged with reckless driving with a circumstance of aggravation (to evade police), which carried a mandatory term of immediate imprisonment. This means that the Magistrate would have had no choice but to send our client to prison for at least 6 months. We successfully negotiated to remove the circumstance of aggravation, thus removing the mandatory imprisonment requirement, and the charge was also amended to dangerous driving. Our client pleaded guilty to the amended charge and received a fine. He also avoided a licence disqualification.

Submission to amend the facts

In some circumstances, you may agree with the essence of the charge and intend on pleading guilty, but disagree with certain alleged facts which would have a bearing on sentence. It is important to come to an agreement with the prosecution as to the facts, as this is the basis upon which you will be sentenced.

It could be submitted that a plea of guilty on the amended facts could still reasonably reflect the essential criminality of the conduct and provide an adequate basis for sentence. For example, you may agree to an assault, but only say you punched the victim, as opposed to punching and kicking the victim. Your sentence may be more serious if you are sentenced on the basis of having kicked the victim as well.

One of our clients was charged with Act or omission causing bodily harm. We successfully negotiated the facts to include some facts our client says occurred, and to remove some facts our client says didn’t occur. Prior to amending the facts, our client would likely have been facing imprisonment. The facts were amended and our client received a fine.

Hire our top criminal lawyers in Perth for your case

Chambers Legal is an experienced team of criminal defence lawyers that can assist with legal advice and representation. If you want more information regarding plea offers and negotiations, get in touch with our friendly team today.

Sexual Assault Allegations and Affirmative Consent

In May of 2024, the Law Reform Commission of Western Australia tabled its Final Report on Project 113: Sexual Offences in State Parliament.

Commissioned in 2021 by Attorney-General John Quigley, the report made 134 recommendations aimed at helping the Western Australian legal system better address sexual violence.

One of those recommendations was to legislate affirmative consent, a move that would put WA in line with most states.

This would be a significant shift from existing Western Australian law. However, it is a change supported by several political parties and NGOs that would make the law more responsive to the needs of younger people.

Western Australia’s current laws

In WA, consent is defined as a free and voluntary agreement to engage in a sexual act. It must be given without any form of coercion, intimidation, force or deception.

Consent can be withdrawn at any time and cannot be given by someone under the age of 16 years.

Engaging in a sexual act without consent will be judged a sexual offence. These are serious offences and if a defendant is found guilty, their conviction will likely result in jail time.

You can read more about sexual assault charges and how Chambers Legal can assist you with them here.

What is affirmative consent?

Affirmative consent, as defined by the report, is actively sought content where no party feels coerced, threatened, or forced. Under this model:

“a person does not consent to an activity with another person only because the person does not say or do something to resist or prevent the activity”.

This means that silence, inaction or a lack of resistance cannot be considered consent.

Affirmative consent emphasises that consent is ongoing and can be withdrawn at any time. It also makes clear that both parties must take reasonable steps to ensure the other person consents.

The aim is to shift the how we view a sexual offence from “did the victim say no?” to “did all parties actively agree?”

What else did the report recommend?

Besides legislating affirmative consent, the report recommended:

• Government developed training for police, lawyers and judicial officers
• Expanding the list of circumstances where someone cannot consent to sexual activity
• Criminalising “stealthing”, the act of removing or tampering with a condom without consent
• Increasing maximum penalties
• Improving directions to juries

Find a sexual assault lawyer in Perth

If you have been accused of sexual assault, do not hesitate to contact Chambers Legal.

We have an experienced team of sexual assault lawyers who can advise you on legal defences and prospects of success at trial.

Our team prides itself on working with integrity and transparency. We are fair and honest in our pricing, providing proper cost notice. Our legal advice is tailored to each client and always provided in writing.

If you would like legal advice, please contact Chambers Legal on (08) 9500 8915 or at [email protected].

Alternatively, you can book a free 15 minute phone consultation.

A sentencing hearing will occur after an accused person pleads guilty.

Magistrates Court

In less serious cases, where the charges are dealt with in the Magistrates Court, the accused person can be sentenced immediately after pleading guilty.If the matter is complex, or reports are ordered, sentencing can occur on a later date.

District Court

Where the charges must be dealt with in the District Court, there can be a number of hearings after a plea of guilty is entered, and before the sentencing hearing. A “fast-track” plea will require at least one Sentence Mention hearing, before the sentencing hearing.

What happens at a sentencing hearing if I plead guilty?

The process for a sentencing is, firstly, that the charge or charges are read to the accused person by the Magistrate or by the Judge’s Associate.  The accused person responds to each charge by saying “guilty”. After this, the prosecutor reads the Statement of Material Facts and can make submissions about the offending and what type of sentence should be imposed.

The accused person’s defence lawyer will also make submissions about the type of sentence to be imposed, explaining why the accused committed the offence, and telling the Court about the accused’s personal circumstances with the purpose of persuading the sentencing Magistrate or Judge to impose a sentence that takes into account all of the mitigating factors. Mitigating factors are things that make the offending less serious. Because of this, sentencing hearings are also referred to as a “plea in mitigation”.

What the Magistrate or Judge will consider

• At sentencing, the Magistrate or Judge will consider:
• The circumstances of the offending and where it lies on the scale of seriousness for that type of offence;
• The aggravating factors that make the particular offending more serious;
• The mitigating factors that make the offending less serious;
• The offender’s personal circumstances, including their background, employment, family, and medical conditions;
• The explanation provided by the offender for committing the offence;
• Whether the offender is remorseful about committing the offence;
• Whether the offender has insight and is likely to re-offend in a similar way again;
• Whether the offender has taken any steps to rehabilitate him or herself; and
• Whether or not the offender has any prior convictions and, if so, whether they are for similar offences.

The type of sentence that can be imposed

The sentences that can be imposed in Western Australia are:

• A Conditional Release Order (“CRO”) – commonly known as a “good behaviour bond”; where the court may impose a requirement on you to ensure that you comply with the Order, such as a fine payable only if you offend during the term of the order;
• A fine;
• A Community Based Order (“CBO”) – this must involve one or more of the following: supervision requirement, programme requirement and/or a community service requirement;
• An Intensive Supervision Order (“ISO”) – this involves a supervision requirement, and may include one or more of the following: programme requirement, community service requirement and/or a curfew requirement;
• A Suspended Imprisonment Order (“SIO”) – meaning that the term of imprisonment is not to be served unless the offender commits an offence while serving the sentence, and the maximum penalty for the new charge is a term of imprisonment, and you are then ordered to serve the suspended term;
• A Conditional Suspended Imprisonment Order (“CSIO”) – which is similar to suspended imprisonment, but also requires at least one of the following: programme requirement, supervision requirement and/or a curfew requirement.
• Immediate imprisonment – meaning you go to prison immediately to serve your sentence.

Please note that sentences for Commonwealth offences and Children’s Court offences differ from the above.

Other options when pleading guilty

If you are pleading guilty to a charge, there are a number of options to consider that may assist for sentencing:

1. Asking to be put on a Pre-Sentence Order (“PSO”) – which means the offender is placed on a program where there will be one or more of the following: supervision requirement, program requirement and/or a  curfew requirement. Successful completion of the PSO can result in a less serious penalty than what would ordinarily be imposed;
2. Seeking a referral to Drug Court – this is a specialty court which deals with offenders who have a drug related problem. A program can last for about 3-12 months, depending on the offender’s needs. Successful completion of the program can result in a less serious penalty than what would ordinarily be imposed;
3. Seeking a referral to START Court – this is a specialty court which deals with offenders who have a mental health condition. A program can last for about 6 months, depending on the offender’s needs. Successful completion of the program can result in a less serious penalty than what would ordinarily be imposed.
4. Participating in Victim-Offender Mediation – which involves the offender making amends and apologising to the victim with the assistance of a mediation officer. This may involve a face to face meeting with the victim.

Other Orders that can be imposed

A spent conviction can be granted with a CRO, fine or CBO, but cannot be granted if you are sentenced to an ISO, SIO, CSIO or immediate imprisonment. You can find more information regarding spent convictions here.

Other orders may include:

• Reparation;
• Compensation;
• Restitution;
• The making of a Violence Restraining Order or Family Violence Restraining Order; and
• Becoming a reportable offender for sexual related offences.

For further information about a sentencing hearing or to get in touch for representation or advise, get in touch with our friendly team of criminal defence lawyers today!

Character references can be provided to the court at sentencing hearings. They can tell the Presiding Magistrate or Presiding Judge that, despite you being convicted of the current offence, you are still considered to be of good character.

This can be useful in assisting the Magistrate or Judge with what penalty should be imposed at your sentencing hearing. They are also particularly useful if you are applying for a spent conviction.

You should aim to get about 3-5 references from various people who know you well and who know about the charge(s) that you are in court for.

Who can give character references?

Anyone who knows you well can provide a character reference, but you should aim to get them from a variety of people, rather than just your family and close friends. It is also helpful to have character references from someone who has some standing in the community and who is well-respected.

Examples of people who can provide character references include:

• Family members
• Your partner
• Friends
• Employers
• Colleagues
• Teachers
• Coaches
• Religious leaders
• Family friends, and
• Neighbours

What should the character reference letter say?

Character references should include the following:

1. The full name and contact details of the writer;
2. How the writer knows you, and for how long they have known you for;
3. Acknowledge that they know of the charge(s);
4. Confirm that they consider you to be of good character, and whether this offending is out of character for you;
5. Confirm whether knowing about the charge(s) has had any impact on the writer’s opinion of you;
6. If the writer considers that you are remorseful about the offending, and/or accepting of responsibility for the offending, and/or have taken steps towards rehabilitation, then that can be included; and
7. Can include any personal recounts of particular events which show that you are of good character.

All character references need to be signed by the writer and dated. The character reference needs to be in the writer’s own words and be truthful. In rare circumstances, the court may contact the writer to verify the contents of the character reference.

Character references should be typed up (preferable) or neatly written on A4 paper, and be addressed to the Presiding Magistrate or Presiding Judge of whichever court you will be appearing in for your sentencing. They do not need to be longer than one page.

If you are legally represented, you should send a copy of the references to your criminal defence lawyer before court so that they can review them, and ensure that they are suitable to be used. If it’s your first time attending court, see more of our tips and advice on going to court in WA.

What should not be included in a character reference?

There are also things that should not be included in character references, namely:

1. Any opinions about the law;
2. Expressing views about why you are not guilty or did not commit the offence(s);
3. Trying to explain or justify why you may have committed the offence(s); and
4. Suggesting what penalty you should receive.

For more information about character references, or for advice or legal representation regarding a criminal charge, get in touch with one of our criminal lawyers in Perth today.