ASSAULT 

AssaultGalbally Rolfe Criminal Lawyers has a robust practice within Melbourne and across Victoria in the areas of assault and violent crime. Assault charges can range from lower level common law and unlawful assaults, to charges of intentionally causing serious injury and attempted murder. It is our job as criminal defence lawyers to assess the evidence, consider issues of identity, to explore the available defences, and provide competent legal advice to those charged with assault and other related offences. Assault matters often intersect with scientific disciplines and, therefore, an in-depth understanding of forensic procedures and access to the very best experts available is imperative to a successful defence. In today’s social climate, assaults are vigorously investigated and prosecuted zealously. The penalties for ‘single punch’ assaults that result in serious injury and, in some cases, death carry with them increasingly severe sentences, the inevitable sentence being a term of imprisonment. If you are charged or under investigation for a death arising from a single punch, refer to our Homicide section for further information.

The Victorian Parliament has also introduced mandatory baseline sentences for certain offences and special provisions for those who assault emergency workers. There is also an intersection between assault offences which occur in a domestic setting and the intervention order and family violence jurisdictions. The criminal law jurisdiction is expecting the introduction of new laws specific to such offences, given the community outrage at recent high profile domestic deaths. If you are charged with domestic assault offences and are facing intervention order proceedings, please also refer to our intervention orders page also for more information.

There is a cascading scale of assaults, from the most serious to the least:

Attempted murder

In order for an accused person to be convicted of attempted murder, they must have intended to commit a murder and attempted to do so. It is important that the Prosecution proves that they intended to commit murder and not some other offence. An act of attempted murder must be more than merely preparatory to the commission of the offence, and must be immediately and not remotely connected with the commission of the offence: Crimes Act 1958, s321N(1). Often an attempt is described as the beginning of the commission of the offence: R v De Silva [2007] QCA 301.

Most usually, accused persons are charged with this offence, as well as alternative assault offences, in circumstances where they intended to murder the victim, but the victim survived their injuries. The usual sentence of imprisonment for attempted murder ranges in the number of years, but the Sentencing Statistics available show that the average total effective sentence is usually between 10 and 12 years, with a non-parole period of around 8 years: Statistics Snapshot, Sentencing Advisory Council.

Provisions:

S321M Crimes Act 1958

S321N(1), Crimes Act 1958

Intentionally Cause Serious Injury (with a related offence involving gross violence)

A serious injury is an injury which endangers life, is substantial and protracted and/or which causes the destruction of a fetus (other than during a medical procedure). These offences are heard in the County Court of Victoria and have a maximum term of imprisonment of 20 years. In order for a serious injury to be caused intentionally, the High Court of Australia has found that the accused must have a general intent to commit the act involved in the offence, or specific intent to produce the serious injury: He Kaw Teh [1985].

The offence is aggravated if committed in circumstances of gross violence. Whilst the offence has the same maximum sentence as the base offence without gross violence, if the offence is committed in circumstances of gross violence, the Court must impose a non-parole period of at least 4 years unless the Court finds that special reasons exist. If the victim is an emergency worker, the mandatory non-parole period increases to 5 years.

Provisions:

S16, Intentionally Cause Serious Injury

S15A, Intentionally Cause Serious Injury (gross violence).

Recklessly Cause Serious Injury (with a related offence involving gross violence)

A serious injury is an injury which endangers life, is substantial and protracted and/or which causes the destruction of a fetus (other than during a medical procedure). These offences are determined in the County Court of Victoria and have a maximum term of imprisonment is 15 years imprisonment. The distinction between recklessly cause serious injury and intentionally cause serious injury is the accused’s state of mind at the time of the offending. To be convicted of recklessly causing serious injury, the Prosecution must prove that the accused was aware at the time of the alleged offending that serious injury was “probable” or “likely” to occur from the accused’s actions.

The Prosecution must prove that the accused, him or herself, had this awareness. It is not enough that a reasonable person would have understood that serious injury would likely occur. Often it is described as the accused doing something in the awareness that the victim would probably be seriously injured but went ahead anyway. Accused persons charged with “single punch” assaults that result in serious injury are more frequently convicted of recklessly cause serious injury.

The offence is also aggravated if committed in circumstances of gross violence. Whilst the offence has the same maximum sentence as the base offence without gross violence, if the offence is committed in circumstances of gross violence, the Court must impose a non-parole period of at least 4 years unless the Court finds that special reasons exist. If the victim is an emergency worker, the mandatory non-parole period increases to 5 years.

Provisions:

S17, Recklessly Causing Serious Injury 

S15B, Recklessly Causing Serious Injury (gross violence)

Causing Injury Intentionally

An injury is defined as a physical injury or harm to mental health, whether temporary or permanent. It is distinguished from serious injury by the gravity of the harm. In circumstances where the injury is caused intentionally, the maximum sentence is 10 years imprisonment. In order for a injury to be caused intentionally, the High Court of Australia has found that the accused must have a general intent to commit the act involved in the offence, or specific intent to produce the serious injury: He Kaw Teh [1985].

Where the victim is an emergency worker, a Court must impose a non-parole period of not less than 6 months unless special reasons exist. These offences can be heard in the Magistrates’ Court where the maximum sentencing jurisdiction is 2 years for a single offence and 5 years for multiple offences.

Provisions:

S18, Causing Injury Intentionally & Recklessly

Causing Injury Recklessly

An injury is defined as a physical injury or harm to mental health, whether temporary or permanent. It is distinguished from serious injury by the gravity of the harm. To be convicted of recklessly causing injury, the Prosecution must prove that the accused was aware at the time of the alleged offending that injury was “probable” or “likely”. The Prosecution must prove that the accused, him or herself, had this awareness. It is not enough that a reasonable person would have understood that injury would likely occur. Often it is described as the accused doing something in the awareness that the victim would probably be injured but went ahead anyway.

In circumstances where the injury is caused recklessly, the maximum sentence is 5 years imprisonment. Where the victim is an emergency worker, a Court must impose a non-parole period of not less than 6 months unless special reasons exist. These offences can be heard in the Magistrates’ Court where the maximum sentencing jurisdiction is 2 years for a single offence and 5 years for multiple offences.

Provisions;

S18, Causing Injury Intentionally & Recklessly 

Statutory Assault

Under s31 of the Crimes Act, there are 5 separate assault related offences:

  1. Assaulting or threatening to assault a person with intent to commit an indictable offence – s31(1)(a).
  2. Assaulting or threatening to assault an emergency worker on duty (or a person lawfully assisting an emergency worker on duty) – s31(1)(b), (ba).
  3. Resisting an emergency worker on duty (or a person lawfully assisting an emergency worker on duty) – s31(1)(b), (ba).
  4. Obstructing an emergency worker on duty (or a person lawfully assisting an emergency worker on duty) – s31(1)(b), (ba).
  5. Assaulting or threatening to assault a person with intent to resist or prevent arrest – s31(1)(c).

Assault is defined as the direct or indirect application of force to the body of, or to the clothing or equipment worn by, a person (s31(3)). Force includes applying to the victim heat, light, electric current, or any other form of energy, including actual physical contact. Statutory assault is punishable by 5 years maximum imprisonment. Statutory assault can be heard in the Magistrates’ Court where the maximum sentencing jurisdiction is 2 years for a single offence and 5 years for multiple offences.

Provisions:

S31, Statutory Assault

Common Law Assault

Assault is an offence at common law, which means that it was made an offence by the Courts in the past whilst hearing cases. Common law assault applies to cases where the accused put the victim in fear of the use of force, but does not require the actual application of force. So, for example, if someone enters another’s personal space in a manner which puts them in fear, but does not actually apply physical force, this can be a common law assault. This is contrasted with statutory assault, where there is an actual application of force.

Assault with intent to commit a sexual offence

From 1 July 2015, new legislation brings into affect the new offence of assault with intent to commit a sexual offence, pursuant to the new section 42. This offence carries with it a maximum sentence of 15 years imprisonment. A person commits this offence if :

  • he or she intentionally applies force to another;
  • the alleged victim does not consent to the application of that force;
  • at the time of applying that force the accused intends that the alleged victim take part in a sexual act; and
  • the accused does not reasonably believe that the alleged victim would consent to taking part in the sexual act.

Pursuant to section 37F, a person is deemed to have taken part in a sexual act if:

  • the alleged victim is sexually penetrated or sexually touched by another person or an animal; or
  • the accused sexually penetrates or sexually touches another person, or themselves or an animal.

See our section on sex offences for further information in relation to the definition of sexual penetration sexual touching, and consent.