ASSAULT AND VIOLENCE RELATED OFFENCES
For years the laws offices of Andrew Williams have provided strong, effective and passionate representation to individuals in Western Australia on assault and violence related charges specific to both federal and state criminal law. The Law Office of Andrew Williams possesses a depth of experience and understanding on all violence related charges and Andrew Williams has handled countless cases in the Children’s Court, Magistrates Court, District Court and Supreme Court of WA. The cases managed have been wide in range and seriousness and have included common assault, assault occasioning bodily harm, acts likely to endanger life, and grievous bodily harm.
In WA the offence of common assault is dealt with summarily in the Magistrates Court. However the offence carries a maximum penalty of 18 months and a fine of $18,000.
If the offence is committed in circumstances of aggravated the maximum penalty increases to 3 years imprisonment and a fine of $36,000.
An assault is aggravated if the offence is committed in the following circumstances:
- Where the offender and the victim are in a domestic relationship (learn more about VROs);
- Where a child is present at the time of the offence;
- Where the offender is subject to a violence restraining order in the benefit of the victim;
- Where the victim is not younger than 60 years;
- Where the circumstances of the offence are racially motivated.
What does common assault mean and what is the prosecution required to prove?
A common assault is an application of force to another without that person’s consent. In theory a slight nudge or push from one person to another would constitute an assault but it is unlikely that the police would charge you in these circumstances unless the push was accompanied with a degree of force or was accompanied with threats of violence.
Actions like pushing, slapping, striking and kicking are situations which often constitute the offence of common assault. Spitting on someone can also constitute an assault and is considered a serious form of assault. It is considered serious because it gives rise to a risk of diseases being transmitted.It is not necessary for the victim to have suffered physical contact from the actions of another for an offence of assault to be proved. For example spitting towards a victim may amount to an assault in circumstances where the spit does not connect or make contact with the victim.
In order to prove that an offence of common assault has been committed the prosecution must satisfy the court beyond reasonable doubt the following:
- There has been an application of force from the accused to the victim;
- That application of force was executed without the victim’s consent;
- The application of force was done so intentionally or recklessly;
- The assault was not justified, authorised or excused by law.
What defences can be raised against a charge of common assault?
There are a number of defences available to a charge of common assault. These include but are not limited to:
- Self Defence of defence of another
- Discipline of a child
- Extraordinary Emergency
- Preventing violence from occurring
ASSAULT OCCASIONING BODILY HARM
An assault occasioning bodily harm arises where, as a result of an assault by another, the victim has suffered bodily harm. If dealt with summarily in the Magistrates Court the offence carries a maximum statutory penalty of 2 years imprisonment and a fine of $24,000. If the offence is committed in circumstances of aggravation the maximum penalty is 3 years imprisonment and a fine of $36,000. An assault occasioning bodily harm charge may also be determined on an indictment in the District Court where the maximum statutory penalties increase significantly.
The definition of bodily harm refers to bodily injury which interferes with health or comfort. The pain that a victim suffers as a result of an assault may self evidently cause discomfort. However, for the present purposes, this will not, on its own substantiate bodily injury. An assault which does nothing more than amount to the victim suffering pain will not constitute the definition of bodily harm.
What injuries can amount to “bodily harm”?
Injuries which constitute bodily harm may be injuries that range from broken bones to a black eye or swelling and bruising. Even minor injuries like a minor abrasion can amount to bodily harm.
GRIEVOUS BODILY HARM
Grievous Bodily Harm (GBH) is defined in the Criminal Code Code WA as bodily injury which either:
- endangers or is likely to endanger life or;
- causes or is likely to cause permanent injury to health.
GBH covers a broad range of injuries which may include a broken jaw through to a serious head injury.
Reference above to an injury which “endangers or is likely to endanger life” applies whether or not the victim ultimately receives medical treatment and completely recovers. It is not a defence to the charge to say that following medical treatment the injury suffered by the victim no longer endangered their life.
What is the prosecution required to prove for an offence of GBH?
In order to prove the offence of GBH the prosecution must prove the following:
- That the complainant suffered GBH;
- That the GBH was caused by the accused;
- That the act which caused the GBH was done unlawfully. That is not justified, authorized, or excused by law.
The prosecution need not prove that the accused intended to do GBH to the victim. A court only needs to be satisfied that the accused unlawfully caused the GBH suffered by the victim. The causation issue is sometimes a matter of dispute in a trial involving GBH. So for example where the accused has pushed the victim and the victim has then fallen and suffered a head injury which constitutes GBH, a jury would need to consider whether the push caused the head injury.
In which court is a charge of GBH determined and what are the penalties?
The offence of GBH cannot be dealt with in the Magistrates Court. Charges of GBH are dealt with on an indictment in the District Court. The maximum penalty for the offence is 10 years imprisonment.
Generally sentences of immediate imprisonment are imposed for GBH offences. However that is not always the case. There are some limited occasions where suspended terms of imprisonment are imposed.
There are, in general, three matters of significance for the court in determining the seriousness of an offence of grievous bodily harm:
- First, there is the nature of the harm which is inflicted. Although any GBH is necessarily serious, it may range from a permanent injury with which the victim is able to cope, to a severe and life-threatening injury which occasions significant permanent disability.
- Secondly, there is the nature of the act which causes the harm. This may range from a single act, to repeated acts of violence.
- Thirdly, there is the background to and circumstances of the offence. This may range from a response to a provocative act of the victim, to random and senseless violence.
The factors that the courts look at in deciding whether to impose a term of immediate imprisonment for an offence of GBH include:
- The perceived seriousness and intrinsic character of the offence;
- Whether there was any element of persistence;
- General deterrence;
- Factors personal to the offender including mitigating circumstances;
- The need to demonstrate the community’s condemnation of offences of the kind in question;
- The prospect of rehabilitation of the offender in combination with the personal deterrence provided by the threat of activation of a suspended sentence; and
- Any reasons militating in favour of an exercise of mercy.
What defences can be raised against a charge of Grievous Bodily Harm?
There are a number of defences available to a charge of GBH. These include but are not limited to:
- The GBH was not caused by the actions of the accused
- Self defence of defence of another
- Extraordinary Emergency
The defence of provocation is not available to a charge of GBH.
The law office of Andrew Williams is committed to providing professional, quality advice and representation to people facing stressful predicaments in their lives. I am thorough in the consideration of the evidence and its admissibility and I am passionate and dedicated in the management of my client’s cases.
Assault and violence related charges are serious matters and carry tough penalties upon conviction in our state. I am an experienced and passionate criminal lawyer who will fight to protect your interests. Have you recently been charged with a violence related offence? If so, contact us at the Law Offices of Andrew Williams today. You can reach us on (08) 9278 2575.