Assault occasioning actual bodily harm NSW

What is the offence of assault occasioning actual bodily harm?

It is an offence under section 59 of the Crimes Act 1900 (NSW) to assault any person without their consent and cause them "actual bodily harm".

There are different levels of assault prosecuted in NSW, with increasing penalties based on the level of harm actually caused. Common assault is the least serious, followed by assault occasioning "actual bodily harm". The most serious is inflicting "grievous bodily harm" on another person.

Interestingly, the term assault actually refers to two separate offences:

1. A person could be accused of committing a "battery" which is when they cause unlawful physical contact to another person.
2. A person could also be accused of committing an "assault", which actually refers to when a person causes someone else to fear immediate unlawful violence. No physical contact is required. Obviously, the "actual bodily harm" to result from this type of conduct would be psychological rather than physical in nature.

Elements of the offence:

There are four elements that must be proved by the prosecution for a person to be found guilty of this offence.

1. A person inflicts unlawful physical contact OR causes another person to fear immediate unlawful violence;
2. Intentionally OR recklessly; and
3. Actual bodily harm results; and they
4. Did it without the consent of the other person.

Any application of force to another person can constitute an assault. However, to satisfy the requirement of actual bodily harm the force must be significant enough to have caused some kind of injury.

Alternatively, causing someone to expect immediate harm or infliction of force can also be an assault. It is important that the fear of violence be reasonably imminent – for example, promising to harm someone generally in the future will not be enough to satisfy the offence. Again, to satisfy the requirement of actual bodily harm the fear caused must have been so serious and impactful as to have caused significant psychological damage – most likely resulting in a recognised psychiatric condition like post traumatic stress disorder or severe anxiety. It is very rare that an assault with no psychical contact is capable of causing such deep mental distress, but it is possible.

The prosecution has to prove both the actual conduct occurred and that a person had the necessary 'state of mind' while committing the offence. For this offence, the prosecution can either show a person intentionally committed an assault or they were 'reckless' as to whether their actions would constitute an assault. It is not necessary to prove an intention to specifically inflict actual bodily harm.

For intention, the prosecution must show that the person actually wanted to either inflict unlawful physical force or cause fear of imminent violence in another person. While angry, insolent, rude or hostile intentions make it much easier to prove a common assault, this is not necessary. It must merely be shown that a person meant to apply unlawful physical force or cause fear of such force to another person – their motivation is not relevant.

The prosecution also has the option of proving that a person was reckless as to causing an assault. This means they must show a person was aware their actions would likely inflict unlawful force or cause such a fear and they chose to ignore the risk. It does not need to be shown that a person was aware of the possibility of causing actual bodily harm. It must be shown that they were aware of the possibility of the infliction of "any degree" of violence and continued in their conduct regardless. Examples include waving fists or a weapon around when there are people nearby – a person might not actually intend to specifically hit a person, but it is reasonable to say they were aware their actions might lead to them coming in contact with someone and causing them harm.

Actual bodily harm refers to a wide range of injuries which can vary how serious the offending conduct is. Some might be just above that of a common assault while others can almost meet the requirements of "grievous bodily harm". The nature and extent of injuries is something the court takes into account on sentence and will inform the severity of penalty a person receives.

The word "actual" implies that some kind of injury needs to be present. It does not need to be permanent or long-lasting, but it must be more than trivial or insignificant. Common examples include bruises and scratches. The injury can be to any part of the human body including skin, bones, muscles, organs, the nervous system and the brain.

If the injury is of a psychological nature, it must be very serious, usually an "identifiable clinical condition". It has to go beyond temporary emotions or feelings of fear, distress, shock or panic.

Importantly, there can only be an assault if a person has not consented to the physical contact.

This means people are able to consent to a certain level of physical harm from another without it becoming an assault. For example, punching another person is not illegal if that person has consented to it. Although it should be noted that the more extreme the harm gets the more the court might be inclined to overrule the consent and prosecute a person regardless. This is a policy decision, meaning the court thinks it is in the public interest to not condone extreme levels of violence even when a person supposedly 'allows' it.

Defences available:

Self-defence:

A person might not have committed an assault occasioning actual bodily harm if they can show on the facts that they were acting in defence of themselves, another person or their property. As a defendant, a person has to only show that there is a reasonable case for self-defence on the facts and then it is the prosecution's job to prove beyond reasonable doubt a person was not acting in self-defence.

The court applies a test to the facts to determine whether a person acted in self-defence or not. It must be found:

1. That a defendant honestly believed their conduct was necessary in the situation; AND
2. That a normal, objective bystander would look at the situation as the defendant understood it and also find that they had made a reasonable and proportionate response.

At times the court will find that a person did genuinely believe their actions were necessary but can't reasonably accept that their response was appropriate and proportionate to the situation. This is known as "excessive self-defence" and means a person will not be acquitted of a common assault. However, while not absolving a person of the offence it can still be used to get a more lenient penalty on sentence.

Penalties:

Assault occasioning actual bodily harm is known as a "Table 2" offence – which means a person will be tried and sentenced in the Local Court unless the prosecution chooses to deal with it on indictment and takes it to the District Court. There are different maximum penalties depending on whether a person is sentenced in the Local or District Court. The District Court is generally reserved for more serious matters and there are therefore harsher maximum penalties available under this jurisdiction.

The Court is also able to order non-custodial alternatives to imprisonment that allow a person to remain in the community under a certain level of supervision. These community-based sentences generally involve a "good behaviour bond" and can require a person to report to community corrections at regular intervals, undertake community service or submit to conditions that restrict or dictate certain parts of their lifestyle.

Assault and domestic violence:

If a person commits an assault occasioning actual bodily harm against someone who has taken an apprehended violence order (AVO) out against them there can be further consequences than just the assault charge.

It is a condition on every AVO that a defendant cannot "assault or threaten" the protected person. If this condition is breached a defendant will face the penalties associated with an assault charge as well as the penalties associated with breaching an AVO. The court treats violent breaches of an AVO with particular severity and a person can face a further two years imprisonment and/or another $5500 fine.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.