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.

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 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?

 

Maximum penalty and Court that deals with Resisting or Assaulting Police

The maximum penalty is level 6 imprisonment (5 years).

Assaulting or Resisting Police is regularly heard in the Magistrates Court.

Did you act in self-defence?
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—
    2. is guilty of an indictable offence.

 
prison penalty sentencing

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 in the higher courts

There is limited sentencing data for Section 31(1)(c) of the Act.

For the charge of section 31(1)(b) Assault, Threaten, Resist or Intentionally Obstruct Police or Emergency Worker, 38 charges were heard in Victorian higher courts from 1 July 2011 to 30 June 2016. Majority of the charges led to imprisonment (73.7%) although there were also charges that resulted in Community Correction Order (18.4%), Fine (5.3%), and Adjourned Undertaking/Discharge/Dismissal (2.6%).

Most of the charges that led to imprisonment were sentenced to a term that was less than a year (60.7%). The highest term imposed was between 2 and 3 years (14.3%).1

Sentencing in the Magistrates’ Courts

In the Magistrates' Courts the following sentencing information are available from 1 July 2013 to 30 June 2016:
 
Section 31(1)(b) - Assault an Emergency Worker on Duty
Number of Cases: 299 (397 charges)

  • Imprisonment - 39.31%
  • Community Correction Order (CCO) - 27.1%
  • Adjourned Undertaking/Discharge/Dismissal - 17.4%
  • Fine - 14.7%
  • Other - 1.3%
  • Youth Justice Centre Order - 0.3%

Most Frequently Imposed Prison Term: 3 < 6 mths (38.5% of cases that resulted in imprisonment) Highest Prison Term Imposed: 36+ months (0.9%) Most Frequently Imposed CCO Term: 12 < 18 months (69.8%, non-aggregate) Highest CCO Term Imposed: 24+ months (3.5%, non-aggregate)2
 
Section 31(1)(b) - Assault, Threaten, Resist or Intentionally Obstruct Police
Number of Cases: 647 (889 charges)

  • Imprisonment - 31.8%
  • Community Correction Order (CCO) - 26.0%
  • Fine - 19.0%
  • Adjourned Undertaking/Discharge/Dismissal - 15.9%
  • Wholly Suspended Sentence - 4.5%
  • Partially Suspended Sentence - 1.7%
  • Youth Justice Centre Order - 0.8%
  • Other - 0.3%

Most Frequently Imposed Prison Term: < 3 mths (31.7% of cases that resulted in imprisonment) Highest Prison Term Imposed: 36+ months (1.0%) Most Frequently Imposed CCO Term: 12 < 18 months (54.0%, non-aggregate) Highest CCO Term Imposed: 24+ months (7.7%, non-aggregate)3
 
Section 31(1)(b) - Resist an Emergency Worker on Duty
Number of Cases: 237 (322 charges)

  • Imprisonment - 44.7%
  • Community Correction Order - 24.1%
  • Fine - 15.6%
  • Adjourned Undertaking/Discharge/Dismissal - 12.7%
  • Youth Justice Centre Order - 1.3%
  • Other - 1.3%
  • Partially Suspended Sentence - 0.4%

Most Frequently Imposed Prison Term: < 3 mths (34.0% of cases that resulted in imprisonment) Highest Prison Term Imposed: 36+ months (0.9%) Most Frequently Imposed CCO Term: 12 < 18 months (57.1%, non-aggregate) Highest CCO Term Imposed: 24+ months (4.1%, non-aggregate)4

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.5

Other Important Resources
Case Studies

 



[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 February 11, 2019).
[2] Sentencing Advisory Council. "SAC Statistics - Crimes Act 1958 (Vic): s 31(1)(b) - assault an emergency worker on duty." SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/6231_31_1_b.html (accessed February 11, 2019).
[3] Sentencing Advisory Council. "SAC Statistics - Crimes Act 1958 (Vic): s 31(1)(b) - assault, threaten, resist or intentionally obstruct police." SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/6231_31_1_b.2.html (accessed February 11, 2019).
[4] Sentencing Advisory Council. "SAC Statistics - Crimes Act 1958 (Vic): s 31(1)(b) - resist an emergency worker on duty." SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/6231_31_1_b.3.html (accessed February 11, 2019).
[5] Sentencing Advisory Council. "Suspended Sentence." SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence (accessed February 11, 2019).