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Assaulting or Resisting Police

- section 31(1)(C) of the Crimes Act 1958

Assaulting or Resisting Police is used when the police try to arrest someone, and that person assaults the police to avoid being arrested.
Assaulting or Resisting Police is regularly heard in the Magistrates’ Court.
 
Examples of Assaulting or Resisting Police
  • You get into an altercation at a music festival. A policeman intervenes to arrest both of you. You refuse to be arrested and wrestle with him until you are eventually arrested.
  • You are caught riding on the train without a ticket and held by the inspectors until the police arrive. When a policeman arrives you push him and run away.
Our client was charged with Assaulting Police and Resisting Police. He was initially represented by other lawyers and received a conviction and fine. Our client sought our help to appeal against the harshness of his sentence. The conviction meant he may have lost his job, and our client felt that the Police had treated him unfairly and aggressively. He ended up without a conviction, as a result of the appeal.
What is the legal definition of Assaulting or Resisting Police?
The legal definition of Assaulting or Resisting Police is assaulting and resisting the police while they are arresting you, or encouraging another person to do so.

Legislation
The section that covers this offence is section 31(1)(C) of the Crimes Act 1958.

Elements of the offence
  1. A person who—
      1. 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.

What are some of the possible defences to an Assaulting or Resisting Police charge?
  • The Police were arresting you unlawfully, so you were acting in self defence.
  • Someone else Assaulted or Resisted Police.
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
  • Can they prove the police were lawfully arresting you?
  • Is there a possibility of mistaken identity?
Did you act in self-defence?

The maximum penalty is level 6 imprisonment (5 years).
 
What can you be sentenced to for this charge?
Assault Police can range from very serious examples of that offence to more minor ones. The penalty depends on the circumstances but Magistrates,understandably, view this charge very seriously.

Sentencing outcomes in the higher courts
There were 70 charges of Assault, Threaten, Resist or Intentionally Obstruct Police or Emergency Worker – Crimes Act 1958 (Vic) s 31(1)(b) that were heard in the higher courts of Victoria from 1 July 2013 to 30 June 2018. Most of these charges resulted in Imprisonment (78.6%).

Other penalties imposed include Community Correction Order (14.3%), Youth Justice Centre Order (2.9%), Fine (2.9%), and Adjourned Undertaking/Discharge/Dismissal (1.4%).

Of the prison terms imposed, 61.8% were below 1 year. The longest term was between 3 and 4 years but this applied in only 5.4% of the charges that led to imprisonment.

For Community Correction Order (CCO), the most commonly imposed term was between 1 and 2 years (40% of all CCO terms). The longest term was between 4 and 5 years (20%).1

Sentencing outcomes in the Magistrates’ Court
In the Magistrates’ Court, there were 8 forms of the offence of Assaulting or Resisting Police that were heard within the period 1 July 2016 to 30 June 2019.

Crimes Act 1958 (Vic) s 31(1)(b) – Assault Emergency Worker
Number of Cases: 950 (1,256 charges)

  • Imprisonment – 46.3%
  • Community Correction Order – 25.2%
  • Adjourned Undertaking/Discharge/Dismissal – 15.6%
  • Fine – 11.9%
  • Youth Justice Centre Order – 0.6%
  • Other – 0.4%
Most Common Prison Term: < 3 months (32.5% of cases that led to imprisonment)
Longest Prison Term: 36+ months (1.3%)
Most Common CCO Term: 12 < 18 months (of charges that led to non-aggregate CCOs)
Longest CCO Term: 24+ months (7.9%, non-aggregate2

Crimes Act 1958 (Vic) s 31(1)(b) – Assault Police Officer
Number of Cases: 541 (690 charges)

  • Imprisonment – 28.4%
  • Community Correction Order – 27.7%
  • Adjourned Undertaking/Discharge/Dismissal – 23.6%
  • Fine – 18.8%
  • Youth Justice Centre Order – 1.3%
Most Common Prison Term: < 3 months (31.9% of cases that led to imprisonment)
Longest Prison Term: 36+ months (0.6%)
Most Common CCO Term: 12 < 18 months (72.3% of charges that led to non-aggregate CCOs)
Longest CCO Term: 24+ months (5.8%, non-aggregate)3

Crimes Act 1958 (Vic) s 31(1)(b) – Assault Protective Services Officer
Number of Cases: 86 (114 charges)

  • Community Correction Order – 39.5%
  • Adjourned Undertaking/Discharge/Dismissal – 28.1%
  • Imprisonment – 20.2%
  • Fine – 11.4%
  • Youth Justice Centre Order – 0.9%
Most Common CCO Term: 12 < 18 months (46.7% of charges that led to non-aggregate CCOs)
Longest CCO Term: 24+ months (6.7%, non-aggregate)
Most Common Prison Term: < 3 months (43.5% of cases that led to imprisonment)
Longest Prison Term: 18 < 24 months (4.4%)4

Crimes Act 1958 (Vic) s 31(1)(b) – Resist Emergency Worker
Number of Cases: 786 (959 charges)

  • Imprisonment – 44.6%
  • Community Correction Order – 26.9%
  • Fine – 14.3%
  • Adjourned Undertaking/Discharge/Dismissal – 11.7%
  • Other – 2.1%
  • Youth Justice Centre Order – 0.4%
Most Common Prison Term: < 3 months (33.5% of cases that led to imprisonment)
Longest Prison Term: 36+ months (1.0%)
Most Common CCO Term: 12 < 18 months (72.9% of charges that led to non-aggregate CCOs)
Longest CCO Term: 24+ months (4.3%, non-aggregate)5

Crimes Act 1958 (Vic) s 31(1)(b) – Resist Police Officer
Number of Cases: 492 (595 charges)

  • Imprisonment – 30.6%
  • Community Correction Order – 25%
  • Fine – 21.5%
  • Adjourned Undertaking/Discharge/Dismissal – 21.9%
  • Other – 0.7%
  • Youth Justice Centre Order – 0.3%
Most Common Prison Term: < 3 months (33.0% of cases that led to imprisonment)
Longest Prison Term: 36+ months (1.7%)
Most Common CCO Term: 12 < 18 months (68.5% of charges that led to non-aggregate CCOs)
Longest CCO Term: 24+ months (8.7%, non-aggregate)6

Crimes Act 1958 (Vic) s 31(1)(b) – Resist Protective Services Officer
Number of Cases: 71 (81 charges)

  • Imprisonment – 24.7%
  • Community Correction Order – 34.6%
  • Fine – 19.8%
  • Adjourned Undertaking/Discharge/Dismissal – 21%
Most Common Prison Term: 6 < 12 months (42.9% of cases that led to imprisonment)
Longest Prison Term: 24 < 36 months (4.8%)
Most Common CCO Term: 12 < 18 months (75.0% of all charges that led to non-aggregate CCOs)
Longest CCO Term: 24+ months (10.7%, non-aggregate)7

Crimes Act 1958 (Vic) s 31(1)(b) – Threaten to Assault Emergency Worker
Number of Cases: 100 (129 charges)

  • Imprisonment – 51.9%
  • Community Correction Order – 27.9%
  • Fine – 10.1%
  • Adjourned Undertaking/Discharge/Dismissal – 6.2%
  • Other – 3.9%
Most Common Prison Term: 3 < 6 months (38.6% of cases that led to imprisonment)
Longest Prison Term: 24 < 36 months (3.5%)
Most Common CCO Term: 12 < 18 months (75.0% of all charges that led to non-aggregate CCOs)
Longest CCO Term: 24+ months (2.8%, non-aggregate)8

Crimes Act 1958 (Vic) s 31(1)(b) – threaten to assault police officer
Number of Cases: 49 (58 charges)

  • Fine – 25.9%
  • Imprisonment – 24.1%
  • Community Correction Order – 31%
  • Adjourned Undertaking/Discharge/Dismissal – 19%
Most Common Fine: $2,000 < $3,000 (33.3% of charges that led to aggregate fines, 6.7% for non-aggregate)
Highest Fine: $3,000 < $4,000 (6.7%, aggregate)
Most Common Prison Term: < 3 months and 6 < 12 months (28.6% respectively of cases that led to imprisonment)
Longest Prison Term: 18 < 24 months (14.3%)9


[1] Sentencing Advisory Council. “SACStat Higher Courts – Crimes Act 1958 (Vic): s 31(1)(b) – assault, threaten, resist or intentionally obstruct police or emergency worker.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_6231_31_1_B.html (accessed April 22, 2020).
[2] Sentencing Advisory Council. “SAC Statistics – Crimes Act 1958 (Vic): s 31(1)(b) – assault emergency worker.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/6231_31_1_b.html (accessed April 22, 2020).
[3] Sentencing Advisory Council. “SAC Statistics – Crimes Act 1958 (Vic): s 31(1)(b) – assault police officer.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/6231_31_1_b.2.html (accessed April 22, 2020).
[4] Sentencing Advisory Council. “SAC Statistics – Crimes Act 1958 (Vic): s 31(1)(b) – assault protective services officer.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/6231_31_1_b.3.html (accessed April 22, 2020).
[5] Sentencing Advisory Council. “SAC Statistics – Crimes Act 1958 (Vic): s 31(1)(b) – resist emergency worker.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/6231_31_1_b.4.html (accessed April 22, 2020).
[6] Sentencing Advisory Council. “SAC Statistics – Crimes Act 1958 (Vic): s 31(1)(b) – resist police officer.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/6231_31_1_b.5.html (accessed April 22, 2020).
[7] Sentencing Advisory Council. “SAC Statistics – Crimes Act 1958 (Vic): s 31(1)(b) – resist protective services officer.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/6231_31_1_b.6.html (accessed April 22, 2020).
[8] Sentencing Advisory Council. “SAC Statistics – Crimes Act 1958 (Vic): s 31(1)(b) – threaten to assault emergency worker.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/6231_31_1_b.7.html (accessed April 22, 2020).
[9] Sentencing Advisory Council. “SAC Statistics – Crimes Act 1958 (Vic): s 31(1)(b) – threaten to assault police officer.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/6231_31_1_b.8.html (accessed April 22, 2020).

 

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