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Resisting Arrest

In Victoria, Resisting Arrest is found in section 51(2) of the Summary Offences Act 1966. It is a criminal offence that is committed by a person who resisted arrest by assaulting, resisting, obstructing, hindering, or delaying a member of the police in the execution of their duty. It also applies to a person who incited another person to do any of the conduct mentioned above.
 
Have you been accused of Resisting Arrest? If yes, contact our office immediately to make a time to speak with one of our experienced criminal defence lawyers who have enormous experience in representing people charged with Resisting Arrest.

Often there is a misunderstanding which leads to someone being accused of Resisting Arrest. This charge is often open to interpretation based on the facts and it will help you to have legal advice.

Police Interview
The Police will normally interview you on the spot if they accuse you of Resisting Arrest, but you are given an opportunity to speak with a lawyer first. You should take this opportunity to speak with a lawyer and contact our firm to get some advice.

The main purpose of interviewing people from Police perspective is to either get admissions from you or to get information which will assist their investigation. The Police interview is not the place for you to explain your side of what happened with the hope that Police will realise they have made a mistake in accusing you of Resisting Arrest. Especially in a charge such as this where the Police officer interviewing you is not going to be sympathetic to any explanation you offer.

Our lawyers can give you advice on how to best handle the Police interview to protect your rights and make sure you do not harm your defence.

Pleading Not Guilty
We are a firm of criminal defence lawyers who specialise in representing people accused of Resisting Police. Speak with one of our lawyers about your prospects of successfully defending a charge of Resisting Police. Our lawyers are proactive in their approach and will ask the Police for body worn camera footage, CCTV footage, if there are witnesses who Police have not spoken to or obtained a statement from.

It is key to get in early and speak with one of our lawyers, because it is good to get hold of any evidence Police have overlooked early before it is lost or over-written.

This charge has a very specific legal definition and it is important to get hold of all evidence and disclosure material from the Police. Sometimes the Police have not correctly placed you under arrest and there could be a legal defence available to you. This should be explored soon after you have been charged.

Pleading Guilty
Our lawyers are experienced in representing people who plead guilty to Resisting Arrest. We take the time to explain the implications of pleading guilty, the possible outcomes and what material should be gathered to get the best possible outcome for our clients. Our lawyers have achieved great outcomes for people who pleaded guilty to Resisting Arrest. Many of our clients have ended up with diversions or no conviction being recorded against them.
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

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
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?”

[1] R v Lavery (1978) 19 SASR 515.
[2] Leonard v Morris (1975) 10 SASR 528.

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

  1. Factual dispute;
  2. Lack of intent.
Questions in cases like this
  • Did you comply with Police orders?
  • Did you intentionally hinder them?
  • Was the arrest lawful?
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.
 

A person found guilty of Resisting Arrest (s51(2) of the Summary Offences Act 1966) may be sentenced to a maximum penalty of 60 penalty units (fine) or imprisonment for 6 months.

Sentencing in the higher courts
There 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

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


[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 >