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Assault charges 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”.

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