When it comes to assault charges in New South Wales, there are a lot of nuances and defining variants that can be difficult to understand. Here, we’re talking specifically about Assault Occasioning Actual Bodily Harm.
What substantiates this criminal charge? What level of physical injury does this charge require? Does the bodily harm have to have been intentional?
Here, we’re breaking down the answers to these questions and more about Assault Occasioning Actual Bodily Harm.
Disclaimer: The information provided in this blog regarding Assault Occasioning Actual Bodily Harm in New South Wales is for general informational purposes only and should not be taken as legal advice. For specific legal assistance or to discuss your case, please contact us at (02) 8378 8585 to organise a free consultation.
The Legal Definition
In the Crimes Act 1900 NSW, Section 59 defines Assault Occasioning Actual Bodily Harm as a statutory offence of aggravated assault. It is worse than being charged with common assault, but the penalty varies depending on objective and subjective factors.
The primary difference between common assault and Assault Occasioning Actual Bodily harm is the presence of an injury on the victim. The victim doesn’t have to prove injury to press common assault charges.
Bruising, swelling, cuts, scrapes, and grazes, are all injuries that fall under the NSW definition of actual bodily harm. Essentially, it doesn’t need to be permanent, but it must be more than transient.
More severe injuries like disfiguration fall under grievous bodily harm with intent, which pairs with much more severe charges.
What It Takes to Prove in Court
Judges deal with Assault Occasioning Actual Bodily Harm charges in the Local Court unless the defence and prosecution elect for the case to move into the District Court system.
The prosecution is not required to prove that the defendant had specific intent to cause actual bodily harm. The prosecution only has to demonstrate that the assault was intentional. The charge will then carry if the victim suffered an injury that falls within the actual bodily harm definition NSW.
The Prosecution’s Duty
The prosecution must prove four explicit things beyond a reasonable doubt for this charge. It has to prove that the defendant committed physical contact against the victim that was outside of ordinary physical touch.
Next, the prosecution has to prove that the defendant committed that physical contact intentionally or recklessly. After that, it has to prove that there was no lawful excuse for physical touch like self-defence.
Finally, it has to prove that the victim suffered a physical injury that falls within the actual bodily harm definition NSW as a direct result of that contact.
The Defence’s Duty
Criminal defence lawyers refute the prosecution’s claims of occasioning actual bodily harm by proving that the physical injury wasn’t a result of the assault. Other common defence strategies include discrediting that the injury falls within the actual bodily harm definition in NSW and claiming self-defence.
If you or a loved one is facing this charge, it is best to contact our trusted Sydney criminal lawyers.
Penalties for Assault Occasioning Actual Bodily Harm
Conviction and sentencing for Assault Occasioning Actual Bodily Harm vary depending on various circumstances.
Influences on Ruling
The court considers different elements of the assault, like duration, degree of violence, how serious the injuries the victim suffered, and others when ruling on this charge.
Other factors that play into the ruling include whether the assault took place in public or the victim’s home, if there was provocation or planning, and the victim’s age and size compared to the defendant.
Subjective considerations include the defendant’s age, mental health, remorse for the assault, probability of re-offending, and previous criminal history.
Potential Maximum Penalty
Should the defendant plead or otherwise be found guilty, the maximum penalty for this crime is five years imprisonment, if tried in the District Court, or a $5,500 fine. The maximum imprisonment length that the Local Court can issue is two years.
Other Possible Penalties
It’s not common for the courts to sentence the maximum prison term for this level of assault charges. If the guilty party is a first-time or low-volume offender, it is more likely that the courts will rule a Conditional Release Order. This order doesn’t require a criminal conviction.
A CRO lasts for two years from the date of sentencing and usually carries requirements of maintaining good behaviour, checking in with the court system, and sometimes supervision.
It’s also possible to get a Conditional Release Order that does carry a criminal conviction that applies to the guilty party’s criminal record. Generally, a court will impose this type of CRO combined with a financial penalty. There has to be a criminal conviction for the court to impose a fine.
The other two types of orders that a court can institute are the Intensive and Community Correction orders. It’s common for re-offenders or more extreme cases of Assault Occasioning Actual Bodily Harm to receive these orders.
A Community Correction Order is similar to a Conditional Release Order, but it can last up to three years instead of just two and usually comes with community service requirements.
An Intensive Correction Order allows for a judge to impose additional terms on the person charged with Assault Occasioning Actual Bodily Harm. Click here for our breakdown on ICOs.
Some supplementary conditions include attending court-ordered counselling, adhering to a strict curfew, remaining under house arrest, completing community service, and submitting to sobriety testing.
Assault Occasioning Actual Bodily Harm FAQ
There are a couple of standard questions people have when the court brings this charge against them.
How does the court define recklessness?
To prove the defendant acted recklessly, the prosecution must show the defendant knew the unlawful physical contact could result in actual bodily harm and proceeded regardless of that knowledge.
Can I plead guilty?
Yes, you can enter a guilty plea and admit to the allegations. The penalties the court executes in response to a guilty plea are almost always less harsh than the penalties given if a defendant is otherwise found guilty.
A guilty plea shows more remorse and willingness to accept accountability, which judges favour over the alternative.
Final Notes
The criminal charge of Assault Occasioning Actual Bodily Harm is an offence that either a Local or District Court can manage. The prosecution must prove that the defendant inflicted physical contact resulting in injury that falls within the actual bodily harm definition in New South Wales intentionally or recklessly. If you face this charge, contact the lawyers at James & Jaramillo now.
