What is aggravated assault? Normal or common assault is often defined as any intentional act that causes another person to fear an attack or imminent physical harm. In New South Wales (NSW), there is no specific offence of “aggravated or serious assault” under legislation. However, there are various assault offences that can be aggravated if certain factors are present.
In Criminal Law, if an offence is aggravated, the offender would deal with a harsher penalty. For instance, the offender could face more severe sentences of imprisonment. This article discusses aggravated assault in NSW.
What Is Aggravated Assault?
This summary offence will be considered aggravated (or more serious) when there are aggravating factors present in an assault case. An aggravated assault results in higher penalties as opposed to when the offence was committed with the absence of aggravating factors.
The Judge or the Magistrate takes into consideration various factors (such as the extent of violence used) that could aggravate the assault offence. These factors include, but are not limited to, the following:
- Extent of injury caused to the victim (whether there was serious injuries caused),
- Extent of premeditation and planning before committing the assault,
- Degree of violence used,
- Whether the assault was done with the intention to cause the harm or recklessness,
- Whether there was any provocation by the victim,
- If the offender has a criminal record for similar offences,
- If the offender was in a position of authority over the victim,
- If the offender used a weapon,
- If the offender committed the offence in breach of bail terms, parole, or an apprehended violence order, or
- If the offence was committed in a domestic violence context.
The penalty for assault will depend whether there was aggravated assault. The presence of aggravated assault then warrants harsher penalties or higher prison sentences.
It is significant to note that the main difference between assault and aggravated assault is the absence or presence of aggravating factors or objective seriousness of the assault.
The Assault Offences That Can Be Aggravated in NSW
There are various types of assault offences under the Crimes Act 1900 (NSW), and their penalties differ, especially when the offence is aggravated. The types of assault charges under the Crimes Act 1900 include:
- Assault against police officers,
- Sexual assault,
- Assault occasioning bodily harm,
- Wounding or grievous bodily harm with intent, and
- Grievous bodily harm by unlawful act or negligence.
These assault offences under the Crimes Act 1900 can be aggravated when circumstances provided under legislation are present.
Note that the assault offences listed above are not exclusive. There are many assault offences in the Crimes Act 1900 between Division 6 and Division 10. There may also be assault offences outside the criminal code.
Assault and Other Actions Against Police Officers
Under Section 60 of the Crimes Act 1900, a person who hinders or resists, or incites another person to hinder or resist a police officer in the execution of the officer’s duty commits an offence. The offender faces a maximum penalty of 12 months’ imprisonment and/or a fine of 20 penalty units.
The offence is aggravated when a person who by any means —
- wounds or causes serious bodily harm to a law enforcement officer while in the execution of the officer’s duty, and
- is reckless as to causing actual bodily harm to that officer or any other person.
In this case, the offender is liable to imprisonment for up to 12 years.
Assault against police officers is also aggravated when a person who by any means during a public disorder —
- wounds or causes grievous bodily harm to a police officer while in the execution of the officer’s duty, and
- is reckless as to causing actual bodily harm to that officer or any other person.
In this case, the offender is liable to imprisonment for up to 14 years.
The Crimes Act 1900 also provides for offences of assault against other law enforcement officers who are not police officers under Section 60A. Such offences have similar aggravating circumstances with those assaults against police officers.
Sexual Assault
Division 10, Subdivision 2, Section 61I to Section 61KB of the Crimes Act 1900 deals with sexual assault cases in NSW.
A sexual assault charge occurs when a person touches another person inappropriately without consent. It can also occur when the offender forces another to take part in a sexual activity with them. Sexual assault includes unwanted kissing and sexual touching.
Sexual assault cases are heard in a District Court, and the offender can face penalties of up to 14 years’ imprisonment. The court can also order an extended imprisonment sentence for aggravated sexual assault.
Section 61JA of the Crimes Act 1900 provides that sexual assault is aggravated when done in the company of another person or persons and who:
- at the time of, or immediately before or after, the commission of the offence, intentionally or recklessly inflicting actual bodily harm on the complainant or any other person who is present or nearby, or
- at the time of, or immediately before or after, the commission of the offence, threatens to inflict actual bodily harm on the complainant or any other person who is present or nearby by means of a dangerous weapon or instrument, or
- deprives the complainant of his or her liberty for a period before or after the commission of the offence.
When sexual assault is aggravated, the penalty is life imprisonment.
Assault Occasioning Actual Bodily Harm
Under Section 59 of the Crimes Act 1900, a person who assaults another and causes actual bodily harm, shall be liable to imprisonment for five years.
The offence is aggravated when the offender commits the offence in the company of another person or persons. In this case, the maximum penalty imposable is 7 years’ imprisonment.
The law considers assault occasioning immediate bodily harm a serious offence because the victim suffers injuries which could require medical treatment and interfere with the victim’s health.
Wounding or Grievous Bodily Harm With Intent
Under Section 33 of the Crimes Act 1900, a person who, with intent to cause grievous bodily harm:
- wounds any person, and
- causes grievous bodily harm to any person
shall be liable for this offence and face a maximum penalty of up to 25 years’ imprisonment.
Grievous bodily harm is one of the most serious forms of assault. Under Section 4 of the Crimes Act, “grievous bodily harm” includes:
- the destruction (other than in the course of a medical procedure or a termination of a pregnancy in accordance with the Abortion Law Reform Act 2019) of the foetus of a pregnant woman, whether or not the woman suffers any other harm,
- any permanent or serious disfiguring of the person, and
- any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease).
Grievous Bodily Harm by Unlawful Act or Negligence
Under Section 54 of the Crimes Act 1900, an offender who, by any unlawful or negligent act, or omission, causes grievous bodily harm to any person, shall be liable to imprisonment for two years.
Seeking Legal Advice
If you are facing an assault conviction, we highly advise you to seek legal advice. JB Solicitors has a leading team of lawyers who can help with your case. We provide legal advice and can discuss possible defences for your case.u. We also provide legal representation should the matter escalate to the Courts.
Do you have any more queries on aggravated assault and other circumstances surrounding assault? Contact us today.