Resisting Arrest

– section 51(2) of the Summary Offences Act 1966
Man Resisting ArrestA person may be charged with resisting arrest under section 51(2) of the Summary Offences Act 1966 if he/she assaults, resists, obstructs, hinders, delays a member of Police in the execution of their duty. A person may also be charged if he/she incites another person to do any of the conduct mentioned above.
Examples of Resisting Arrest
  • Physically blocking a Police officer from arresting someone
  • Refusing to comply with a Police officer’s orders during an arrest
  • Running away from Police when they try to arrest you
  • Warning an offender that Police are coming
Questions in cases like this
  • Did you comply with Police orders?
  • Did you intentionally hinder them?
  • Was the arrest lawful?
What are some of the possible defences to Resisting Arrest?

A person charged with hindering Police may rely on one of the following defences:

  1. Factual dispute;
  2. Lack of intent.

You should call us to discuss your case if you have been charged. Deciding on whether to plead guilty or not has important implications for you and should be made after proper discussions with a criminal lawyer.

Maximum penalty and court that deals with this charge

A person found guilty of this charge may be sentenced to a maximum penalty of 60 penalty units (fine) or imprisonment for 6 months.

The offence of resisting arrest is the sort of offence which is heard in the Magistrates’ Court.

What is the legal definition of Resisting Arrest?

Arrest
A person is under arrest when they are told by a Police officer that they are under arrest and have no choice but to accompany the Police officer back to the Police station. The Police officer must make it clear to the person that they are free to refuse a request to accompany the officer back to the station if they are not under arrest.1

Hinder
Hindering Police has been defined by the Courts as ‘any act of interference or obstruction which makes the duty of the Police officer substantially more difficult of performance’.2

Legislation

The legislation for this offence can be found on section 51(2) of Summary Offences Act 1966.

Elements of the offence

To prove this charge the Prosecution must show that the accused:

  1. assaulted, resisted, obstructed, hindered or delayed a defined person or incited or encouraged another person to assault, resist, obstruct, hinder or delay a defined person; and
  2. that the person obstructed was either a member of the police force in the execution of their duty, a person lawfully assisting the police member in the execution of their duty under the Summary Offences Act or any member of staff of the local authority in the execution of their duty under the Summary Offences Act.
“Was the arrest lawful?”
Sentencing in the higher courts

County CourtThere were 98 charges of Assault/Resist/Obstruct/Hinder/Delay Police or Protective Services Officer on Duty – section 52(1) that were heard in the higher courts of Victoria from 1 July 2011 to 30 June 2016. Majority of these charges resulted in imprisonment (54.1%) although there were other sentencing forms that were imposed:

  • Community Correction Order – 20.4%
  • Adjourned Undertaking/Discharge/Dismissal – 9.2%
  • Fine – 6.1%
  • Community-Based Order – 4.1%
  • Wholly Suspended Sentence – 2%
  • Youth Justice Centre Order – 2%
  • Partially Suspended Sentence – 1%
  • Other – 1%

There were 53 charges that resulted in imprisonment and 79.2% of these charges were sentenced to a term that was less than a year. Another 9.4% were sentenced to a period between 1 and 2 years.3

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.4

Sentencing in the Magistrates’ Courts

In the Magistrates’ Courts, below are the statistical data for variations of offences related to section 52 of the Summary Offences Act 1966:

Assault Police: Summary Offences Act 1966 (Vic) s 52(1)
From 1 July 2013 to 30 June 2016: 1,514 cases (1,905 charges)

  • Community Correction Order – 25.9%
  • Fine – 25.7%
  • Adjourned Undertaking/Discharge/Dismissal – 19.6%
  • Imprisonment – 18.9%
  • Wholly Suspended Sentence – 7.8%
  • Partially Suspended Sentence – 1.6%
  • Youth Justice Centre Order – 0.4%

Highest prison term imposed: 36+ months (0.9% of cases that led to imprisonment)
Most frequently imposed prison term: 3 < 6 months (34.7%)
Highest fine imposed: $3,000 < $4,000 (3.9% of the charges that led to fines)
Most frequently imposed fine: $500 < $1,000 (33.9% of the charges that led to fines for aggregate, and 8.2% for non-aggregate)5

Hinder Police: Summary Offences Act 1966 (Vic) s 52(1)
From 1 July 2013 to 30 June 2016: 435 cases (475 charges)

  • Fine – 43.2%
  • Adjourned Undertaking/Discharge/Dismissal – 24.4%
  • Community Correction Order – 16.2%
  • Imprisonment – 10.5%
  • Wholly Suspended Sentence – 5.1%
  • Youth Justice Centre Order – 0.4%
  • Partially Suspended Sentence – 0.2%

Highest prison term imposed: 24 < 36 months (1.7% of cases that led to imprisonment)
Most frequently imposed prison term: < 3 months (31.0%)
Highest fine imposed: $5,000 < $10,000 (0.5% of the charges that led to fines)
Most frequently imposed fine: “$500 < $1,000” for aggregate (34.2% of the charges that led to fines) and “less than $500” for non-aggregate (17.1%)6

Resist a Protective Services Officer: Summary Offences Act 1966 (Vic) s 52(1)
From 1 July 2013 to 30 June 2016: 435 cases (475 charges)

  • Fine – 33.3%
  • Community Correction Order – 20.0%
  • Imprisonment – 18.3%
  • Adjourned Undertaking/Discharge/Dismissal – 18.3%
  • Partially Suspended Sentence – 3.3%
  • Wholly Suspended Sentence – 3.3%
  • Youth Justice Centre Order – 1.7%
  • Other – 1.7%

Highest prison term imposed: 18 < 24 months (9.1% of cases that led to imprisonment)
Most frequently imposed prison term: < 3 months (45.5%)
Highest fine imposed: $1,000 < $2,000 (27.6% of the charges that led to fines)
Most frequently imposed fine: “$500 < $1,000” for aggregate (55.2% of the charges that led to fines) and “less than $500” for non-aggregate (3.5%)7

Call Doogue + George

Resist Police: Summary Offences Act 1966 (Vic) s 52(1)
From 1 July 2013 to 30 June 2016: 2,584 cases (3,450 charges)

  • Fine – 28.5%
  • Community Correction Order – 22.1%
  • Imprisonment – 21.6%
  • Adjourned Undertaking/Discharge/Dismissal – 16.7%
  • Wholly Suspended Sentence – 7.5%
  • Partially Suspended Sentence – 2.8%
  • Youth Justice Centre Order – 0.5%
  • Other – 0.3%

Highest prison term imposed: 36+ months (1.3% of cases that led to imprisonment)
Most frequently imposed prison terms: “< 3 months” (30.3%) and “3 < 6 months” (30.3%)
Highest fine imposed: $5,000 < $10,000 (0.1% of the charges that led to fines)
Most frequently imposed fine: “$500 < $1,000” for aggregate (39.1% of the charges that led to fines) and “less than $500” for non-aggregate (4.5%)8

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.9

Other important resources
Media information
Case studies related to Resisting Arrest

 



[1] R v Lavery (1978) 19 SASR 515.
[2] Leonard v Morris (1975) 10 SASR 528.
[3] SACStat Higher Courts – Summary Offences Act 1966 (Vic) : s 52(1) – assault/resist/obstruct/hinder/delay police or protective services officer on duty < https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_7405_52_1.html >
[4] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >
[5] SAC Statistics – Summary Offences Act 1966 (Vic): s 52(1) – assault police < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/7405_52_1.html >
[6] SAC Statistics – Summary Offences Act 1966 (Vic) : s 52(1) – hinder police < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/7405_52_1.2.html >
[7] SAC Statistics – Summary Offences Act 1966 (Vic): s 52(1) – resist a protective services officer < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/7405_52_1.3.html >
[8] SAC Statistics – Summary Offences Act 1966 (Vic): s 52(1) – resist police < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/7405_52_1.4.html >
[9] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >