A common assault charge can be dropped, but the decision ultimately lies with the police or the prosecution. This depends on the different circumstances surrounding the case.
Section 61 of the Crimes Act 1900 is the legislation that covers common assault. Its maximum penalty is 2 years of imprisonment.
Possible Grounds for Dropping a Common Assault Charge
Assault cases involve specific elements, yet when it comes to common assault, there are instances where the charge might be dropped due to various reasons:
Public interest
The prosecutors might think about whether or not moving forwards with the case is in the public's best interest. Some things that might be considered are how bad the crime was, the offender's criminal past, and how it affected the victim.
Victim's request
Sometimes, the victim may request the dismissal of charges. Although the prosecution is not required to comply with this request, they may consider the victim's desires when deciding whether or not to proceed with the case.
Alternative dispute resolution
Depending on the circumstances, the parties may agree to use an alternative dispute resolution procedure, such as mediation or a restorative justice programme, to resolve the dispute.
Diversion programs
First-time offenders and those with minimal criminal histories may sometimes qualify for a diversion program. The accusations may be dismissed upon successful completion of the program.
Insufficient evidence
If there isn't enough evidence to prove the charge beyond a reasonable doubt, the prosecutors may decide to drop the charge.
In common assault cases, the prosecution is burdened to prove the elements of the offence beyond a reasonable doubt. While the specific elements of common assault may vary slightly depending on the jurisdiction, generally, the prosecution must establish the following:
Act or conduct
The prosecution must prove that the defendant engaged in a physical act or behaviour (e.g., hitting, pushing, or spitting) or non-physical act or conduct (e.g., verbal threats, gestures, or actions that caused the victim to fear imminent physical harm).
Intention or recklessness
The prosecution must prove that the defendant either intended to cause the victim to fear unlawful and immediate violence or was negligent as to whether such apprehension would be caused. Typically, recklessness involves a defendant who is conscious of the possibility of causing apprehension but continues to act regardless.
Apprehension of immediate and unlawful violence
The prosecution must prove that the victim genuinely dreaded or anticipated criminal and direct violence due to the defendant's actions. This indicates that the victim must have believed that the violence was imminent instead of a possibility in the future.
No lawful excuse or justification
The prosecution must demonstrate that the defendant had no legal alibi or reason for their actions, such as acting in self-defence or defence of another individual.
Also read: How Long Does an Assault Investigation Take in Australia
Courts Where Common Assault Charge Cases Are Heard
In Australia, cases of common assault are generally heard in the Magistrates' Court or Local Court, depending on the jurisdiction. These courts handle less serious criminal matters and are the first level of the Australian court system.
In New South Wales, for example, such cases would be heard in the Local Court, while in Victoria, they would be heard in the Magistrates' Court.
Other states and territories have similar courts where common assault cases are heard. If the assault is more serious or involves aggravating factors, it may be heard in higher courts, such as the District Court or County Court, depending on the jurisdiction.
Preparations Before Reaching a Common Assault Charge Verdict
If you are facing sentencing for common assault, there are several steps you can take to help prepare yourself and potentially lessen the severity of your sentence.
Hire a lawyer
Engage the services of an experienced criminal lawyer familiar with common assault cases and the relevant laws in your jurisdiction. They can advise you on the best action and represent your interests in court.
Gather character references
Get references from people who know you well and who can attest to your positive traits, like your employer, coworkers, friends, or leaders in your community. These references can help show that you are a good person, which may sway the judge's choice.
Engage in counselling or rehabilitation
If your attack was caused by drug use, anger management problems, or other personal issues, it is advisable to attend counselling, therapy, or rehabilitation programs. This can also show the court that you are willing to change your behaviour by addressing the underlying issues that lead to the crime.
Show remorse and take responsibility
Accepting blame for your actions and showing real regret for what you did can make a good impression on the court. This can be done by writing the victim an apology letter or showing regret at the sentencing meeting.
Prepare a personal statement
Write a personal statement to give to the court. In it, explain what happened, what problems you were having, and what steps you've taken to resolve and stop them from happening again.
Comply with bail conditions or court orders
Ensure you follow any bail terms or court orders. This will show that you care about the court process and want to make things right.
Also read: Bail for Assault Charge in Australia You Should Know
Familiarize yourself with the sentencing process
Knowing what to expect and how the process works can help you prepare for your sentencing meeting. Your lawyer can help you get through this process and know your rights and responsibilities.
Common Assault Sentencing Guidelines in NSW
In New South Wales (NSW), common assault is an offence under section 61 of the Crimes Act 1900. The maximum penalty for common assault is two years imprisonment and/or a fine of 50 penalty units (currently $5,500).
However, it's important to understand that this is the maximum penalty. The actual penalty will depend on various factors, including:
- The seriousness of the offense: The level of violence or threat involved will be considered.
- The offender's criminal history: A prior record can lead to a harsher sentence.
- The offender's personal circumstances: Factors like age, mental health, and remorse can be taken into account.
- Any aggravating or mitigating factors: These are circumstances that either increase or decrease the seriousness of the offence.
Maximum Penalties
- Maximum Penalty in Local Court: The maximum penalty for common assault if dealt with summarily is two years imprisonment.
- Maximum Penalty in Higher Courts: If dealt with on indictment, which is rare for common assault without aggravating factors, the penalties might be higher depending on the circumstances and concurrent charges.
Possible penalties for common assault can include:
- No conviction recorded: This means no criminal record, but the offender may be placed on a good behavior bond.
- Fine: The amount will depend on the circumstances.
- Community Correction Order (CCO): This involves supervision and conditions like community service.
- Intensive Correction Order (ICO): A stricter form of supervision with conditions like home detention.
- Imprisonment: This is usually reserved for the most serious cases.
Conclusion
Question: Can a common assault charge be dropped?
Answer: A common assault charge can be dropped, but the decision ultimately lies with the police or the prosecution. This depends on the different circumstances surrounding the case.
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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.