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Common Assault

– section 23 of the Summary Offences Act 1966

Common Assault is used when the police think you have unlawfully assaulted or physically beaten another person.

Common Assault is a summary offence which will be heard in the Magistrates’ Court.

Examples of Common Assault
  • Without provocation, someone punches a stranger in the head at the local supermarket.
  • A bouncer punches a patron in the head for deliberately throwing a full glass of wine on the floor.

Our client was a bouncer and had a recent conviction for hitting a patron with an open hand. Following the conviction, our client came to see us. After reviewing the evidence, we advised our client to file an appeal against conviction. Following the appeal, the Judge dismissed the charges and ordered the police to pay our client’s costs.

Elements: What is the legal definition of Common Assault

In legal terms, Common Assault means assaulting or physically beating another person without a legal excuse.

Legislation

The section that covers this offence is section 23 of the Summary Offences Act 1966.

What are some of the possible defences to a Common Assault charge?
  • You were acting in self-defence.
  • You did not assault anyone.
  • You never intended to assault anyone.

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
  • How can they prove it wasn’t a case of self-defence?
  • How can they prove the offender’s identity?
“Were you acting in self-defence? “

The maximum penalty for Common Assault is imprisonment for 3 months or a fine of 15 penalty units ($2,331.90).

Sentencing in the higher courts
In the higher courts of Victoria, 19 cases (184 charges) of section 23 Unlawful Assault were heard from 1 July 2011 to 30 June 2016. Majority of the cases resulted in a Community Correction Order (CCO) at 57.9% but there were also a few that led to Imprisonment (15.8%), Community-Based Order (15.8%), Fine (5.3%), and Adjourned Undertaking/Discharge/Dismissal (5.3%).

Of the cases that led to CCO, majority were sentenced to a term that was between 2 and 3 years (45.4%). The highest term imposed was between 4 and 5 years but this was applied in only 9.1% of the cases.

Most of the charges that led to imprisonment were sentenced to a term that was less than a year (84.1%). The highest term imposed was between 1 and 2 years but this was true for only 0.9% of the charges.1

Sentencing in the Magistrates’ Courts
From July 2013 to June 2016, a total of 16,849 cases (20,640 charges) of section 23 Unlawful Assault were heard in the Magistrates’ Court of Victoria. These cases resulted in the following penalties:

  • Adjourned Undertaking/Discharge/Dismissal – 28.0%
  • Fine – 26.2%
  • Community Correction Order – 23.8%
  • Imprisonment – 16.2%
  • Wholly Suspended Sentence – 4.3%
  • Partially Suspended Sentence – 1.0%
  • Youth Justice Centre Order – 0.4%
  • Other – 0.1%
Of the charges that resulted in financial penalties, majority fell under the “$1,000 < $2,000” category for aggregate (25.2%) and “$500 < $1,000” for non-aggregate. The highest amount imposed was somewhere between $5,000 and $10,000 (aggregate) and was applied in 0.5% of the charges.

Majority of the charges that led to Community Correction Orders were sentenced to a term between 12 and 18 months (non-aggregate). The longest term imposed was more than 2 years which was applied in 6.7% (non-aggregate) of the charges.2

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.3


[1] Sentencing Advisory Council. “SACStat Higher Courts – Summary Offences Act 1966 (Vic): s 23 – unlawful assault.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_7405_23.html (accessed February 18, 2019).
[2] Sentencing Advisory Council. “SAC Statistics – Summary Offences Act 1966 (Vic): s 23 – unlawful assault.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/7405_23.html (accessed February 18, 2019).
[3] 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 18, 2019).