Although you may agree that an assault occurred, you may not realise that you have a legal defence to the charge. You should therefore speak to a criminal lawyer before going to court and entering a plea.
We can advise you about the charge itself, the defences open to you, penalty options, and the court procedures for pleas of guilty and pleas of not guilty.
You should also speak to your criminal lawyer about the charge because it may be possible for the charge to be discontinued, downgraded or amended, depending on the circumstances.
The police want to speak to me about an alleged assault. Do I have to speak to them?
Please click here to read about your rights when speaking to and being questioned by police.
I have assaulted someone, but do I have a defence?
If you have been charged with assault and you accept that you have assaulted someone, it is still important to consider whether you might have a defence. For example, you may have been acting in self-defence of yourself or of another, or you may have been provoked.
In order to rely on self-defence, you must be able to show that the assault was necessary to defend yourself or another person from a harmful act, and that the assault was a reasonable response in the circumstances. This means that what you did must be proportionate to the danger that you perceived e.g. you cannot shoot someone with a gun if you thought they were going to punch you.
Self-defence can also be excessive and, in those circumstances, will not provide a defence.
Provocation means that you are deprived of the power of self-control and act upon it suddenly and before there is time for your passion to cool. Provocation can include someone saying or doing something to you, to such a degree that you lose all control and lash out. The force you used in response must also be proportionate to the provocation and cannot be intended to cause death or grievous bodily harm.
Identity may also be an issue in assault cases, meaning you were not the person involved and the police have incorrectly identified you as the offender.
You should speak to your criminal lawyer about whether or not you have a defence.
What will happen in court?
Please click here read about what happens in court.
Types of Assault
There are several different types of assaults. Each type of assault can carry different penalties, and can be heard in different courts. You will find the most common types of assault and defences that we deal with below.
Assault is defined as being any application of force, either directly or indirectly, without the other person’s consent. This can include a touch, slap or hit to another person.
Assaults can also contain circumstances of aggravation. Circumstances of aggravation are things that the law says make the offence more serious, such as:
- If you were in a family relationship with the victim
- If a child was present during the assault
- If the victim is over the age of 60
- If you are breaching a restraining order
Common assault is an assault (defined above) that does not result in any injuries to the other person.
A charge of common assault will be dealt with in the Magistrates Court.
The maximum penalty for this offence is 18 months imprisonment and an $18,000 fine. However, if the assault was committed in circumstances of aggravation (see examples above), then the maximum penalty is 3 years imprisonment and a $36,000 fine.
The most common defences for common assault are self-defence or provocation.
Assault Occasioning Bodily Harm
Assault is defined above. Bodily harm means any injury which interferes with health or comfort. It can include anything from a bruise or swelling to more serious injuries such as broken bones.
This charge can be dealt with in the Magistrates Court or the District Court, depending on how serious the allegation is.
If dealt with in the Magistrates Court, the maximum penalty is 2 years imprisonment and a $24,000 fine. However, if the assault was committed in circumstances of aggravation, then the maximum penalty is 3 years imprisonment and a $36,000 fine.
If dealt with in the District Court, the maximum penalty is 5 years imprisonment. However, if the assault was committed in circumstances of aggravation (see examples above), then the maximum penalty is 7 years imprisonment.
The most common defences for assault occasioning bodily harm are self-defence or provocation.
Grievous Bodily Harm
Grievous bodily harm (GBH) is a very serious assault that has resulted in any bodily injury that can endanger life or cause permanent injury to someone’s health. This can include broken bones where surgery is required as treatment or internal injuries that require medical treatment in order for the victim to survive.
This charge must be dealt with in the District Court and is punishable by a maximum penalty of 10 years imprisonment.
The most common defence of GBH is self-defence. Provocation is not a defence for GBH.
This charge is very serious, and would ordinarily result in a term of imprisonment (suspended or immediate).
Assault Public Officer
This charge is used when the victim of an assault is a police officer or emergency worker, such as a paramedic. The most common assaults charged under this section are against police officers.
This charge can be dealt with in either the Magistrates Court or District Court.
If the assault was committed in “prescribed circumstances”, such as if the assault was against a police officer, prison officer or a Transperth security officer, and they suffered bodily harm, then mandatory sentencing applies. If convicted, you will be sentenced to a minimum mandatory sentence of 6 months imprisonment.
If dealt with in the Magistrates Court, the maximum penalty is 3 years imprisonment and a $36,000 fine. If dealt with in the District Court, the maximum penalty is 7 years imprisonment. Higher penalties apply if you were armed or in company before or after the offending.
Act or Omission causing Bodily Harm or Danger
If you fail to do something or illegally do something that results in bodily harm or someone’s life or safety being endangered, you may be charged with this offence. Driving your car at someone to hit them is an example that could lead to charges.
This charge can be dealt with in either the Magistrates Court or District Court, depending on the severity of the allegation, and whether or not it is alleged that you had intent to harm.
The maximum penalty in the Magistrates Court is 3 years imprisonment and a $36,000 fine. The maximum penalty in the District Court is 7 years imprisonment (if no intent to harm is alleged), and 20 years (if intent to harm is alleged).
Unlawful Assault Causing Death
If a person dies as a result of an unlawful assault, this is punishable by a maximum penalty of 20 years imprisonment, and may be upgraded to either manslaughter or murder.
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