Common Assaults & Serious Assaults
Assaulting another person is a criminal offence in Western Australia. An assault occurs when one person strikes another person – applying force of any kind to another person, either directly or indirectly, without the person’s consent, or with their consent if it is obtained by fraud.
It actually doesn’t take much for one person’s action to be considered an assault on another person. For example, blowing cigarette smoke in someone’s face has amounted to an assault, rubbing up against another person on a crowded bus has led to an assault charge.
The offence of assault is broken up into various kinds of assault or species of assault as they are sometimes referred to. Assaults range from the most trivial often dealt with by way of a fine through to the most serious attracting an immediate term of imprisonment.
Common Assault – Section 313 Criminal Code
At the lowest end of the scale is common assault. Striking someone which results in no physical damage is a common assault. I don’t want anyone to think that common assault is of its own a trivial offence. It is by no means trivial simply at the lower end of the spectrum of assaults as seen by criminal lawyers and courts hearing criminal matters. Again, it doesn’t take much to act in a manner that brings with it an assault charge.
Assault Causing Bodily Harm (ACBH) – Section 317 Criminal Code
On the next rung is assault causing bodily harm (ACBH). Bodily harm is any bodily injury which interferes with health or comfort. Striking someone with as little force to merely redden the skin can lead to an ACBH charge. When the striking results in bruising, tendon damage or even broken bones, an ACBH charge is likely to follow. It also does’nt take much to cause bodily harm – the range of injuries that in our experience has constituted bodily harm is light bruising to a cheek area though through to smashed eye sockets – that latter not able to meet the medical test for GBH below.
Grievous Bodily Harm (GBH) – Section 297 Criminal Code
At the serious end of the scale is grievous bodily harm (GBH). GBH is any bodily injury of such as to endanger life, or to cause, or be likely to cause permanent injury to health. When the police prefer a charge of GBH there must be an independent medical report supporting the injury as amounting to GBH. We often hear in the news that: police have charged a person with assault which could be upgraded later. This is often simply code for the police waiting for a hospital report or medial report of the injuries sustained in the assault.
Unlawful Assault Causing Death – Section 281 Criminal Code
At the most serious end of the scale is assault causing death. It stands to reason that if a person were to assault another person to cause directly or indirectly that person to die, then the offender will be dealt with in the. The offence is still made out even if the offender did not intend or foresee the death of the person. The so-called Cowards Punchoften reported in the news makes out this category of offending. Too much alcohol and or the effects of illicit substances leads to an altercation in a bar in which one person punches another person and that person falls to the floor hitting the back of their head on the concrete or some other hard surface. Onlookers often report a loud cracking sound as the person being assaulted hits the concrete floor or kerb. There have of course been cases where the offender pushed another person by way of self-defence and that person unsteady on their feet due to the effects of alcohol and or drugs and falls and hits their head.
Indecent Assault – Section 323 Criminal Code
Indecent assault constitutes a whole category of offences depending upon the age of the person assaulted, whether the offence was committed in circumstances of aggravation and so on. Indecent assault sits within the wider category of Sexual Assault in the Criminal Code.
Whether the assault is indecent or not is not defined in the Criminal Code. It is matter of public perception as to whether an act can be regarded as indecent or something else or no assault at all. Indecent is simplywhat is considered offensive to common propriety in the mind of the ordinary decent-people. The assault must have a sexual connection so it cannot be simply a touching of the shoulder or someone’s arm. In variably touch a person’s genitals or bottom will usually ground a charge of indecent assault.
Assault With Intent – Section 317A Criminal Code
This is a species of an assault where the offender assaulted a person with intent to commit or facilitate a crime or assaulted a person intending to cause GBH or assaulted a person with intent to prevent the arrest or detention of any person. It could almost amount to an aggravating factor but Parliament considered the offence so serious sit made it a substantive offence.
Anyone committing a criminal offence with intent to produce an unlawful outcome is understandably going to be dealt with harshly should that person be convicted. Obviously in the case the prosecution have to prove beyond reasonable doubt that the offender had the requisite intent when committing the offence of assault.
Assault and Aggravating Factors
The above simply represents a pencil thin outline of the range of offences containing the word Assault. There are a wide range of aggravating circumstances which can accompany a charge of assault and therefore raise the seriousness and therefore penalties.
I do not intend going into all the aggravating factors here. For now, some examples are: being in company with others, having a weapon or instrument, assaulting someone in the home in the course of a home burglary, assaulting a person over the age of 60 years, whether the person assaulted was a police office or doctor or a nurse whether the offender and person assaulted were in a relationship and whether a child was present at the time of the assault.
Defences to Assault
I will produce a separate blog on the types of criminal defences that an offender may be able to rely upon depending on the facts of the case if charged with a criminal offence. For now, let me briefly state that in terms of an assault charge, the range of defences that may be found on the facts are: self-defence, defence of another, provocation, except for GBH and Assault with Intent, unwilled act or accident. There is of course situations when the offender instructs a lawyer that the assault simply didn’t happen – most often in Indecent Assault cases – or that it was someone else which assaulted the victim – here the fact in issue is identity of the offender – an often arises in pub brawls for example.
Penalties and Sentencing
Along with the range of categories of assault conditioned by the presence or absence of aggravating factors so too are the range of penalties. Again, I have no intention of going into the vast combination of penalties available only to say that at one end of the scale a person convicted of say a common assault may be dealt with by way of a fine. Whereas someone convicted of GBH or Assault with Intent will invariably receive an immediate term of imprisonment. I am not prepared to state what penalty a person might receive upon conviction for an assault. It is entirely up to the presiding judicial officer on the day taking into account aggravating circumstances and mitigating factors. Anyone stating what the fine might be or the length of imprisonment treat with caution