(08) 9278 2575Yes. Unlawful common assault is an offence under section 313 of the Criminal Code in Western Australia and is dealt with in the Magistrates Court.
Common Assault in Western Australia
Common assault, also referred to as unlawful common assault, is an assault offence dealt with in the Magistrates Court in Western Australia.
An allegation of common assault can arise from many different circumstances, including physical altercations, pushing or striking another person, or threatening to use force. An injury does not necessarily need to have occurred for a person to be charged with common assault.
If you have been charged with common assault, it is important to understand exactly what the prosecution alleges occurred, the evidence against you and whether a legal defence may be available.
Get Legal Advice for a Common Assault Charge
Andrew Williams has more than 20 years' experience in criminal law and regularly represents clients facing assault charges in Perth, Fremantle and courts throughout Western Australia.
If you have been charged with common assault in WA, call Andrew Williams on (08) 9278 2575 to arrange a consultation.
Enquire Now Call (08) 9278 2575
What Is Common Assault in WA?
Common assault is an offence under section 313 of the Criminal Code (WA).
The meaning of "assault" is set out in section 222 of the Criminal Code. Broadly, an assault can occur where a person, without consent:
- strikes, touches or moves another person;
- directly or indirectly applies force of any kind to another person; or
- attempts or threatens to apply force where they have an actual or apparent present ability to carry out the attempt or threat.
Under section 223 of the Criminal Code, an assault is unlawful unless it is authorised, justified or excused by law.
It is not limited to serious physical violence. Depending on the circumstances, conduct such as pushing, slapping, striking, kicking or spitting may constitute an assault.
A threat or attempted use of force can also amount to assault even where physical contact does not ultimately occur.
What Are the Elements of Common Assault?
For a person to be found guilty of unlawful common assault, the prosecution must establish:
- The identity of the accused – that the person charged was responsible for the alleged conduct.
- An assault occurred – the accused touched, moved or applied force of any kind to another person, directly or indirectly, or attempted or threatened to apply force where there was a present ability to carry out those actions.
- The conduct was intentional or reckless.
- The other person did not consent to the force or threat of force.
- The assault was unlawful – meaning it was not authorised, justified or otherwise excused by law.
The particular issues in dispute will depend on the facts of the case. For example, a person may dispute that they were responsible for the alleged assault, argue that the physical contact occurred accidentally, or rely on a defence such as self-defence.
Does Someone Need to Be Injured for Common Assault?
No. An injury is not required for conduct to constitute common assault.
An assault may involve relatively minor physical contact, provided the legal elements of the offence are established. An attempt or threat to apply force can also constitute an assault in certain circumstances even if no physical contact occurs.
Where an assault causes bodily harm, a more serious charge of assault occasioning bodily harm may apply.
The distinction between common assault and other assault offences can therefore depend on the conduct alleged, any injuries sustained and the evidence available.
Examples of Common Assault
Common assault can arise in many different scenarios. Examples may include:
- pushing or shoving another person;
- slapping or striking someone;
- kicking another person;
- spitting on or towards another person;
- grabbing another person; or
- attempting or threatening to use force where there is an actual or apparent present ability to carry out the threat.
Can Spitting on Someone Be Common Assault?
Yes. Spitting on another person can constitute an assault.
Physical contact may not always be required. Depending on the circumstances, spitting towards someone may potentially amount to an assault even where the spit does not make contact.
Penalties for Common Assault in WA
Under section 313 of the Criminal Code WA, the maximum penalty for unlawful common assault is:
- 18 months' imprisonment and a fine of $18,000 for common assault that is not committed in circumstances of aggravation or racial aggravation; or
- 3 years' imprisonment and a fine of $36,000 where the offence is committed in circumstances of aggravation or racial aggravation.
These are maximum penalties. They do not mean that every person convicted of common assault will receive a term of imprisonment or the maximum fine.
Obtaining legal advice before entering a plea can help you understand the nature of the charge, whether a defence may be available and the possible consequences if you are convicted.
What Is the Likely Sentence for Common Assault?
There is no single sentence that applies to every common assault conviction.
Although imprisonment is available as a maximum penalty, the sentence imposed will depend on the individual case. The court may consider factors including the seriousness of the assault, any injuries caused, the offender's personal situation and criminal history, whether there was an early plea of guilty and other relevant sentencing considerations.
The presence of circumstances of aggravation can also affect the seriousness of the offence and the maximum penalty available.
For this reason, the maximum penalty should not be taken as an indication of the sentence that will necessarily be imposed in a particular case.
What Happens for a Common Assault First Offence?
Having no prior criminal record can be relevant when the court determines an appropriate sentence, but there is no fixed or predetermined penalty for a first offence.
The court will consider factors such as the seriousness of the offence, the conduct involved, any injuries caused, the offender's background and other matters relevant to sentencing. Being a first-time offender may therefore be taken into account, but does not guarantee a particular sentencing outcome.
Depending on the outcome of the case, it may also be possible to apply for a spent conviction. If granted, this can affect whether the conviction needs to be disclosed in certain situations. A spent conviction is not automatic, and the court must be satisfied that the relevant requirements are met.
If you are facing a common assault charge for the first time, obtaining legal advice can help you understand the charge, the possible penalties and other potential consequences before deciding how to plead.
Common Assault in Circumstances of Aggravation or Racial Aggravation
The offence may carry a higher maximum penalty where it is committed in circumstances of aggravation or racial aggravation.
Circumstances of aggravation can include:
- the accused was in a family relationship with the alleged victim;
- a child was present when the offence was committed;
- the accused's conduct constituted a breach of a restraining order; or
- the alleged victim was aged 60 years or older.
The Criminal Code also provides for circumstances of racial aggravation.
Where aggravating factors apply, the maximum penalty for common assault increases from 18 months' imprisonment and an $18,000 fine to 3 years' imprisonment and a $36,000 fine.
Whether an alleged common assault occurred in circumstances of aggravation can therefore have a significant effect on the charge and potential penalty.
What Happens After You Are Charged With Common Assault?
If you are charged with unlawful common assault, you may be summonsed or bailed to appear before the Magistrates Court.
At your first court appearance, you will generally need to indicate how you intend to deal with the charge. If you have not yet obtained legal advice, it may be possible to seek an adjournment so that you can speak with a criminal lawyer before entering a plea.
It is important to understand the prosecution case and obtain advice about your options before deciding whether to plead guilty or not guilty.
What Happens if You Plead Guilty?
If you plead guilty to common assault, the matter will proceed towards sentencing.
Before entering a guilty plea, you should understand the charge against you, the facts upon which the prosecution relies and the potential consequences of a conviction.
The court will consider the circumstances of the offence together with matters relevant to you when determining the appropriate sentence.
What Happens if You Plead Not Guilty?
If you plead not guilty, the matter will proceed towards trial.
The prosecution will be required to prove the charge beyond reasonable doubt and may call evidence from the alleged victim, police officers and other witnesses.
Your criminal defence lawyer has an opportunity to challenge the prosecution evidence and may also call evidence. Whether an accused person should give evidence personally is an important decision that should be considered carefully in the context of the individual case.
At the conclusion of the trial, the Magistrate will determine whether the prosecution has proved the charge beyond reasonable doubt.
If the prosecution has not proved the charge to the required standard, you will be found not guilty.
If you are found guilty, the court will proceed to sentencing.
In some circumstances, where a person is acquitted after being legally represented, an application may be made for an order for costs.
What Evidence Can Be Relevant to a Common Assault Charge?
The evidence in a common assault case will depend on where and how the alleged incident occurred.
Relevant evidence may include:
- statements from the alleged victim;
- statements from other witnesses;
- CCTV footage;
- mobile phone, dashcam or other video recordings;
- police body-worn camera footage;
- photographs;
- medical records or evidence of injuries;
- text messages, emails or social media communications; and
- evidence about the events immediately before and after the alleged assault.
Evidence can be particularly important where there is a dispute about who initiated an altercation, whether force was used, whether an accused person acted in self-defence or whether the alleged conduct occurred at all.
A criminal lawyer can review the prosecution evidence, identify inconsistencies or weaknesses and consider whether further evidence should be obtained in support of the defence case.
Legal Defences to Common Assault
Legal defences available to a common assault charge will depend on the circumstances surrounding the alleged incident. Potential defences can include:
Identification
The prosecution must establish that the accused was the person responsible for the alleged assault.
Identification may become an issue where the incident involved multiple people, occurred quickly or in poor visibility, or where witness identification is disputed.
Self-Defence
A person may be entitled to use force in self-defence in certain circumstances.
Whether self-defence applies will depend on what occurred, including the accused person's belief about the situation and whether their response was reasonable.
Self-defence may also arise where a person acts in defence of another person.
Provocation
Provocation can provide a defence to assault charges in particular circumstances.
The requirements of the defence are specific, and the fact that a person was angry, insulted or involved in an argument does not automatically mean that the legal defence of provocation applies.
Accident
An assault generally requires intentional or reckless conduct. Where physical contact was genuinely accidental, this may be relevant to whether the prosecution can prove the offence.
Consent
Whether the alleged victim consented to the relevant conduct can also be an issue in some assault cases.
However, consent does not automatically make every application of force lawful. Whether consent is relevant will depend on the nature of the conduct and the particular circumstances.
Defence of Property and Other Lawful Excuses
Depending on the facts of the case, other provisions of the Criminal Code may authorise, justify or excuse conduct that would otherwise amount to an assault.
Because assault cases can turn heavily on the facts and evidence, it is important that the alleged incident is examined carefully before deciding how to respond to the charge.
Common Assault vs Assault Occasioning Bodily Harm
Common assault and assault occasioning bodily harm are separate offences under Western Australian law.
The important distinction is generally the bodily harm caused by the assault.
Common assault does not require the prosecution to establish bodily harm. By comparison, assault occasioning bodily harm requires proof that an unlawful assault caused bodily harm to another person.
This can include physical injuries such as bruising, swelling, abrasions or broken bones where the injury meets the legal definition of bodily harm.
Assault occasioning bodily harm is a more serious offence and carries higher maximum penalties than common assault.
Why Legal Advice Matters for a Common Assault Charge
Common assault cases can involve competing accounts of what occurred, making a careful review of the prosecution evidence particularly important.
Before deciding how to deal with a common assault charge, the evidence should be carefully reviewed to determine:
- whether the prosecution can prove each element of the offence;
- whether the evidence supports the allegations made;
- whether there are inconsistencies or evidentiary issues;
- whether a legal defence is available;
- whether the charge appropriately reflects the alleged conduct; and
- the potential consequences of pleading guilty or being found guilty after trial.
Getting legal advice early can help you understand where you stand and what steps should be taken before your next court appearance.
Speak With an Experienced Common Assault Lawyer
Being charged with common assault can leave you uncertain about what happens next, particularly if there are competing versions of events or you believe you acted lawfully.
Andrew Williams has more than 20 years' experience in criminal law and regularly represents clients charged with assault offences in the Magistrates Court. He will take the time to discuss what occurred, examine the prosecution case and explain whether you have grounds to defend the charge or how the matter may otherwise be resolved.
The aim is to ensure you understand the charge, the evidence and your options before making important decisions about your case.
Andrew provides legal representation for clients in Perth, Fremantle and throughout Western Australia.
If you have been charged with common assault, call Andrew Williams on (08) 9278 2575 or make an online enquiry to arrange a consultation.
Enquire Now Call (08) 9278 2575
Frequently Asked Questions
Yes. The legal definition of assault extends beyond physical contact. An attempt or threat to apply force can constitute an assault where the person making the attempt or threat has an actual or apparent present ability to carry it out.
Potentially. Pushing or shoving another person without their consent can constitute an application of force and may amount to common assault where the other elements of the offence are established.
The maximum penalty is 18 months' imprisonment and a fine of $18,000. If the offence occurs in circumstances of aggravation or racial aggravation, the maximum increases to 3 years' imprisonment and a fine of $36,000.
A term of imprisonment is available under the maximum penalty for common assault, but this does not mean that every person convicted will go to jail.
The sentence will depend on the circumstances and seriousness of the offence, the offender's personal circumstances and criminal history, and other relevant sentencing considerations.
There is no fixed penalty that applies simply because it is a person's first common assault offence. Having no prior criminal record may be relevant to sentencing, but the court will also consider the circumstances of the offence and other relevant factors.
Common assault is a criminal offence and a conviction can have consequences beyond the immediate sentence imposed by the court. How serious an individual charge is will depend on the circumstances of the alleged assault, including whether circumstances of aggravation apply.
Yes. Self-defence may be available depending on the circumstances. Whether it applies will depend on matters including what the accused believed was happening and whether their response was reasonable in the circumstances.
Whether you should plead guilty or not guilty depends on the allegations, the prosecution evidence and your individual circumstances. Before entering a plea, it is important to understand what the prosecution must prove and whether you may have a defence.
ASSAULT & VIOLENT OFFENCES
In the state of Western Australia, assault charges encompass a variety of conduct that is violent. This conduct varies greatly and carries different penalties based on the severity of harm, degree of violence involved and individual circumstances. The presence of a relevant legal defence also impacts the penalty imposed which can range from financial penalties to prison sentences. Other types of assault charges include:
- Assault Occasioning Bodily Harm - this type of offence arises where, as a result of an assault, the accused causes another person physical harm, such a black eye, broken bone or swelling and bruising.
- Assault of Public Officer - the unlawful application of force or the threat of force against a public officer or police officer while they are performing their duties.
- Grievous Bodily Harm - the act of assault where the bodily injury either endangers life (or is likely to endanger life) or causes permanent injury to health (or is likely to cause permanent injury to health). This could include a broken jaw or a serious head injury.
- Assault With Intent - this offence occurs when the assault was carried out by a person with the intent of committing or facilitating the commission of a crime, committing grievous bodily harm to any person, or resisting or preventing the lawful arrest or detention of any person.
- Unlawful Wounding - this offence occurs when a person breaks both layers of the skin of another person, without lawful reason. This includes inflicting a cut, burn or stab wound however it is not necessary to have used a weapon, and the injury does not have to be severe or long-term.
- Unlawful Indecent Assault - this can encompass a wide range of behaviours and depends on the act itself, the circumstances of the conduct, and/or the relationship between the parties involved. It is sexual, without the consent of the other person.
- Sexual Assault - this includes sexual penetration without consent, indecent dealings with a child under 16 years of age, using electronic communication to procure a child to engage in sexual activity, distribution and possession of child pornography or child exploitation material, or sexual offences against a child of or over 16 where the accused is in a position of authority.
It's important to speak with an experienced assault lawyer for specific advice tailored to your matter as circumstances vary considerably from case to case.
