Assault and violent crime

Commonly asked questions about assault and violent crime

Assault is any act that causes someone to fear immediate violence, whether the act is intentional or reckless. Assault may be physical (eg hitting, punching, pushing, spitting) or may involve a verbal threat to a person that causes them to believe they may be hurt.

GBH is any really serious injury that causes permanent or serious disfigurement to the victim, no matter whether the effect of the injury is temporary or long-term. Some examples of injuries include broken bones, damage to internal organs, or the infliction of disease or harm to a pregnant woman that results in the loss of the foetus.

Wounding involves the breaking of the skin, such as a cut, split lip or stab wound. The extent of the injury can vary greatly.

An AVO is an order made by the court against a person who makes you fear for your safety. The purpose of an AVO is to protect you from violence, intimidation and harassment.

When a person is sentenced for a criminal offence, certain features of the offence or the offender are considered “aggravating factors”, meaning that they justify a more severe penalty.

Some examples of factors that may aggravate a violent offence include:

  • If the offender already has a criminal record for similar offences
  • If the offender was in a position of authority over the victim (eg a parent assaulting a child)
  • Domestic violence
  • If a weapon was used
  • If the assault caused particularly serious injuries
  • If the offence involved gratuitous cruelty
  • If the offender violated the conditions of their parole, bail or an AVO in committing the crime
  • If the offence was committed in the presence of a child
  • If the victim was a public official, such as a police officer or correctional officer, and the offence arose because of the victim’s occupation

In cases where the aggravating factor is already an element of the offence that has been charged, the court cannot take the aggravating factor into account at sentencing, as this would be “double counting”.

When a person is sentenced for a criminal offence, certain features of the offence or the offender are considered “mitigating factors”, meaning that they reduce the offender’s culpability for the offence and justify a lower penalty.

Some examples of mitigating factors that may apply to violent offences include:

  • The offender has no prior criminal record
  • Past circumstances might have contributed to the person offending (eg abuse)
  • Circumstances at the time might explain why the offence was committed (eg. stress)
  • The offender shows genuine remorse
  • The offender was suffering from a mental or physical illness
  • The offender only played a minor role in the offence

The terms “reckless” and “intentional” refer to a person’s state of mind. You have basic intent if your acts are voluntary and deliberate. You have a specific intent if your acts are voluntary and deliberate, and you meant to bring about a particular result. You are reckless if you are aware that certain acts carry a substantial risk of a particular circumstance or result, in circumstances where taking the risk is unjustifiable. Where an offence may be committed either intentionally or recklessly, recklessness is likely to attract a lower penalty. Determining the intention of the offender can be a particularly challenging area of the law.

The offence of murder is defined in the Crimes Act 1900 (NSW), and by common law principles which have been articulated by the courts.

Section 18 of the Crimes Act defines murder as any unlawful act or omission which causes the death of another person. In terms of the defendant’s state of mind, the act/s or omission/s causing the death must have been committed:

  • With reckless indifference to human life; or
  • With intent to kill or inflict grievous bodily harm; or
  • In an attempt to commit, or during or immediately after commission by the defendant or an accomplice of, a crime punishable by imprisonment for life, or 25 years.

Section 19A of the Crimes Act dictates that the maximum penalty for murder is imprisonment for life.

Like murder, the offence of manslaughter is defined in the Crimes Act 1900 (NSW), and by common law principles which have been articulated by the courts. Section 18 of Crimes Act defines manslaughter as any punishable homicide which does not amount to murder.

As to the meaning of “punishable homicide”, section 18 states that a person is not to be punished for causing the death of another person:

  • “By misfortune only”; or
  • By any act or omission which was not malicious, or for which the person had lawful cause or excuse.

Section 24 of the Crimes Act dictates that the maximum penalty for manslaughter is imprisonment for 25 years.

Voluntary and involuntary manslaughter under common law

The common law recognises two distinct categories of manslaughter: voluntary manslaughter and involuntary manslaughter.

Voluntary manslaughter occurs when all the elements of the offence of murder are established. However, the acts or omissions causing the death occurred because of:

  • Extreme provocation by the deceased person, being acts or omissions amounting to a serious indictable offence and causing the defendant to lose control; or
  • Diminished responsibility, that is, an abnormality of mind which substantially impaired the defendant’s capacity to understand his or her acts or omissions.

Involuntary manslaughter may occur in one of two ways:

  • Killing by an unlawful and dangerous act, that is, any intentional act by a defendant which is unlawful and dangerous and carries an appreciable risk of serious injury, and which causes the death of another person.
  • Killing by criminal negligence, that is, any act or omission by a defendant, which causes or accelerates the death of another person, in circumstances where the defendant was under a duty to care for the deceased person, and the acts or omissions amount to gross negligence (or perhaps recklessness) and a failure to perform the duty.

Note that there is no such thing as “attempted manslaughter”.

Our experts

Postcode

News

Should a deaf person be able to serve on a jury?
14 Feb
Gaye Lyons is profoundly deaf. She can lip read, but her usual method of communication is ...
Read More
Does a bank have a duty of care to its customers during a robbery?
25 Jan
Imagine you are a bank customer caught up in a bank robbery. There you are minding your ...
Read More
“I was approached by the police. What are my rights in New South Wales?”
19 Jan
There are certain directions from police officers in NSW which must be followed by all ...
Read More
The importance of emotional intelligence for lawyers
20 Dec
Growing up and then coming to study law, I had always worried that my tendency to ...
Read More
Consumers urged to be wary of scams over Christmas
08 Dec
While most of us think of Christmas as the season of goodwill and happy holidays, some ...
Read More
Identity checks vital to combating fraud in property transactions
28 Oct
A case in the ACT Supreme Court earlier this year, Astell v Australian Capital Territory, ...
Read More
Murder, attempted murder, manslaughter, misadventure and accident – forms of death from unnatural causes
21 Sep
The Australian laws relating to murder, attempted murder and manslaughter are all ...
Read More
Law closes in on social media abusers
06 Jul
After years of inaction against those who use social media to abuse, threaten and ...
Read More
Can prisoners vote?
01 Jun
In the United States whole classes of people are barred from voting because they are ...
Read More
Is It Legal To Smack My Child?
27 Apr
 A recent Supreme Court case has thrown a new light on the controversial issue of ...
Read More
How Far Can I Go In Defending Myself And My Home?
06 Apr
A murder charge brought against a man alleged to have confronted and killed a person ...
Read More
Hulk Award Shows Danger Of Private Tapes
30 Mar
The incredible $US115 million awarded by a jury in an American court to pro-wrestler Hulk ...
Read More

Why Stacks


No hidden fees
Nobody likes surprises on their bills, so we take the time to agree with you exactly what our work will cost before we do it (not after!)

Deep expertise
Our lawyers aren’t ‘general practitioners’, they’re experts in their chosen fields of practice (many are Accredited Specialists)

Practical advice not legalese
We provide clear, practical advice, in plain English, so that you can make decisions with confidence


Over 25 local offices
Our local offices are owned and operated by friendly, local professionals, who are proud and active members of the communities they serve

Real client care
Genuine care for clients has been at the core of our practice since the first office was opened by ER Stack on the NSW Mid-North Coast in 1931

Progressive practice
We invest in technology and systems so that our services are always cost effective and clients are in control of their own legal affairs

More about our promises

Get help now

It's easy to get help, just tell us your story and we'll help you understand all your options. If you’d like us to help, we’ll agree exactly the work you'd like us to do up front so that you can be certain about our costs.

Your enquiry is completely confidential.

Fill out this form and one of our experts will contact you
within one business day

By submitting this form you agree to the terms of our Privacy policy

Need help? We’re here to assist