Common Assault (Common Law)

common assault (common law)

 

Common Assault (Common Law) is used when a person makes unlawful contact with another person, or threatens to do so.

Examples of Common Assault (Common Law)
  • You push your neighbour when he complains about a branch overhanging the fence.
  • You angrily tell another motorist you will punch them for failing to give way to you.
  • You threateningly grab the collar of someone's shirt when they are rude to you in bar.
What are some of the possible defences to a Common Assault (Common Law) charge?
  • Someone was acting in self-defence.
  • Someone else did the assault.

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 there circumstances in which you need to defend yourself?
  • Was someone else involved who did the offending?

Maximum penalty and Court that deals with this charge

The maximum penalty is 5 years imprisonment.

Common Assault (Common Law) can be heard in the Magistrates’ Court.

"Why are they charging with common law assault?"
What is the legal definition of Common Assault (Common Law)?

The legal definition of Common Assault (Common Law) is making unlawful contact with another person, or threatening to do so.

Legislation

This is a common law offence which means there is no specific legislation for the offence.

Elements of the offence

For an accused to be found guilty of common assault, the Prosecution must prove the following elements beyond a reasonable doubt:

  1. The accused applied force to the complainant’s body;
  2. The application of force was intentional or reckless; and
  3. The application of force was without lawful justification or excuse.1

sentencing county court

What can you be sentenced to for this charge?

This is an unusual charge for the Police to proceed with. You would expect it in a more serious case and therefore gaol might be an outcome. However if it was in minor circumstances then it could be a fine as a penalty.

Sentencing in the higher courts

There were 141 cases (721 charges) of Common Law Assault that were heard in the higher courts of Victoria from 1 July 2011 to 30 June 2016. Most of these cases resulted in Community Correction Order (35.5%) and Imprisonment (27.7%). Other penalties imposed include: Fine (14.9%), Wholly Suspended Sentence (9.2%), Adjourned Undertaking/Discharge/Dismissal (6.4%), Community-Based Order (3.6%), Partially Suspended Sentence (1.4%), Intensive Correction Order (0.7%), and other sentencing forms (0.7%).

The most frequently imposed CCO terms fell under the categories "1 < 2 years" (42%) and "2 < 3 years" (42%). The highest term imposed was 5+ years but this was applied in only 2% of the cases that led to CCO. Of the prison terms imposed, majority were below 1 year (53.8%). The longest prison term given was between 5 and 6 years but this was one of the least given terms, applied in only 2.6% of the cases that resulted in imprisonment.2

Please note that suspended sentences were abolished in the higher courts earlier than that of the Magistrates’ Court, and therefore all offences committed on or after 1 September 2013 will not have this available as a sentencing option.3

Sentencing in the Magistrates’ Courts

In the Magistrates' Courts, 119 cases (149 charges) of Common Law Assault were heard from 1 July 2013 to 30 June 2016. Most of these cases also resulted in Imprisonment (33.6%) and Community Correction Order (30.3%). Other sentences include: Fine (15.1%), Adjourned Undertaking/Discharge/Dismissal (10.9%), Wholly Suspended Sentence (7.6%), and Partially Suspended Sentence (2.5%).

The longest prison term imposed was between 24 and 36 months and this was applied in 5.0% of the cases that resulted in imprisonment. Majority were sentenced to a term between 6 and 12 months (35.0%).

Of the terms that were imposed for Community Correction Order (CCO), the longest was more than 24 months but this was the least frequently applied at only 2.4% (non-aggregate) of the charges that led to CCO. Most of the charges were sentenced to a term between 12 and 18 months (61.98%, 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

 



[1] http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#4957.htm
[2] Sentencing Advisory Council. "SACStat Higher Courts - Common Law: - assault." SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_LAW_3.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).
[4] Sentencing Advisory Council. "SAC Statistics - Common Law: - common law assault." SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/LAW_3.html (accessed February 18, 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 18, 2019).