– section 31 of the Crimes Act 1958
The Police will charge you with assault where they believe that you have intentionally or recklessly caused another person to apprehend immediate an unlawful contact without the person’s consent. An assault occurs where the victim does not suffer an injury. The Crimes Act 1958 (Vic) defines ‘injury’ as:
- physical injury; or
- harm to mental health
whether temporary or permanent.
As of May 2018, the Courts are treating assaults where emergency workers are the victim more seriously.
Assault is an indictable common law offence in Victoria.
There is no distinction made between a battery (the actual application of force) and making the victim apprehend the application of force. The offence covers both set of circumstances.
Some examples of Assault
- An ambulance officer at a music festival tries to assist you, you push him in the chest and run away.
- You punch someone while attempting to burgle their house but do not cause an injury.
- You kick a police officer while they are on duty.
Section 31 of the Crimes Act 1958 (Vic) states:
- A person who—
- assaults or threatens to assault another person with intent to commit an indictable offence; or
- assaults or threatens to assault, resists or intentionally obstructs an emergency worker on duty or a youth justice custodial worker on duty, or a custodial officer on duty, knowing or being reckless as to whether the person was an emergency worker or a youth justice custodial worker or a custodial officer; or
(ba) assaults or threatens to assault, resists or intentionally obstructs a person lawfully assisting an emergency worker on duty or a youth justice custodial worker on duty, or a custodial officer on duty, knowing or being reckless as to whether the person was assisting an emergency worker or a youth justice custodial worker or a custodial officer; or
- assaults or threatens to assault a person with intent to resist or prevent the lawful apprehension or detention of a person—
is guilty of an indictable offence.
Penalty: Level 6 imprisonment (5 years maximum).
- In subsection (1), “assault” means the direct or indirect application of force by a person to the body of, or to clothing or equipment worn by, another person where the application of force is—
- without lawful excuse; and
- with intent to inflict or being reckless as to the infliction of bodily injury, pain, discomfort, damage, insult or deprivation of liberty—
and results in the infliction of any such consequence (whether or not the consequence inflicted is the consequence intended or foreseen).
Assault involving the application of force
The Prosecution must satisfy the following elements beyond reasonable doubt to prove an assault has occurred:
- you applied force to the complainant’s body;
- The application of force was intentional or reckless; and
- The application of force was without lawful justification or excuse.
The force applied does not need to be violent and may be as slight as a mere touch.
Force may be applied directly or through the medium of a weapon or instrument controlled by you.
Assault not involving the application of force
What must the prosecution prove?
Assault not involving the application of force has three elements:
- You committed an act that caused the complainant to apprehend the immediate application of force to his or her body;
- You intended his or her actions to cause such apprehension, or was reckless as to that outcome; and
- You had no lawful justification or excuse for causing the complainant to apprehend the application of immediate force.
The Prosecution must prove that the application of force was intentional or reckless.
The Prosecution must prove that you intended to create in the complainant’s mind an apprehension that force would be applied. They do not need to prove that you intended to apply force.1
For the application of force to have been “reckless”, the Prosecution must prove that you should have realised that your conduct would probably result in force being applied to the complainant’s body.2
What are some of the possible defences to an Assault charge?
- You acted in self-defence. To successfully raise a defence of self-defence, you must satisfy the Court that your actions were necessary and proportionate in the circumstances.
- Somebody else committed the assault.
- You had the complainant’s consent.
- There is a lawful excuse, such as you assaulted the complainant while playing sport. For example a tackle in football or punching somebody while boxing.
- You were lawfully correcting a child as long as the application of force is reasonable.
There are other possible defences, depending on the circumstances surrounding the alleged offending. Each matter is unique and requires an individual approach and strategy.
Questions in cases like this
- Were you defending yourself from a threat?
- Were you the person who assaulted the victim?
- Was the arrest unlawful?
- Did you have the complainant’s consent to touch them?
Maximum penalty and court that deals with Assault
The maximum penalty for this offence is level 6 imprisonment (5 years). This is reserved for the very worst example of this offence.
Assault is an indictable offence triable summarily. This means it will be heard in the County Court unless you agree to have it heard in the Magistrates’ Court.
What can you be sentenced to for this charge?
Assault charges can attract a gaol sentence for the most serious examples and should be treated seriously. Serious examples of assault may include where the victim is an emergency worker or a partner in a domestic situation.
Other penalties for less serious examples include – diversion (for first time offenders), a promise to the Court to be of good behaviour, a fine or a Community Corrections Orders.
Sentencing in the higher courts
The Sentencing Council has published statistics regarding s31(1)(b) of the Crimes Act 1958.
Between 1 July 2011 and 30 June 2016, 73.7% of offenders received a term of imprisonment, 18.4% received a community corrections order, 5.3% received a fine and 2.6% received an adjourned undertaking/discharge/dismissal.
These statistics reflect the seriousness of assaulting emergency workers.
Sentencing in the Magistrates’ Courts
Between 1 July 2013 and 30 June 2016, 39.1% of offenders found guilty under s31(1)(b) of the Crimes Act 1958 received a term of imprisonment, 27.1% received a community corrections order, 14.7% received a fine, 1.3% received ‘other’ sentences, and 17.4% received an adjourned undertaking/discharge/dismissal.
- Adjourned Undertaking Without Conviction for Unlawful Assault
- Exceptional Circumstances in a Contested Bail Application
- Sexual and Assault Charges – CCO
- Downgrading Threat to Kill and Criminal Damage
- Community Corrections Order (CCO) for Family Violence