Assault police officer in the execution of their duty

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What is Assault police officer in the execution of their duty ?

If you assaulted a victim and that victim was a police officer, other peace officer, customs house officer, sheriff’s officer, prison officer or bailiff and the assault occurred while the victim was acting in the execution of his/her duty you will be guilty of Assault Officer.

Assaulting a police officer or officers is considered a grave offence, predominately because of the community service police are employed to do but and also for the need to send a message to the community that assaults on police will be treated seriously by the courts.

Case law/Jurisdiction

Depending on the section used to charge and the degree of injury caused an offence of Assault police officer in the execution of their duty is what is known as either a “Table 1” or “Table 2” offence under the relevant legislation, which means it is to be dealt with in the Local Court unless an election is it is to be dealt with on indictment by the Director of Public Prosecutions (DPP).

However, if grievous bodily harm occurred or the offence occurred as a result of a pubic disorder then the matter becomes “strictly indictable” which means the charge will be finalised in the District or Supreme Court.

If the matter is dealt with in the District or Supreme Court, it will give rise to harsher penalties.

The nature and elements of the offence of affray were considered in R v Hamilton (1993) 66 A Crim R 575 at 581 where Gleeson CJ stated:

“It is incumbent upon the Court, in dealing with offences of this nature, to show an appropriate measure of support for police officers who undertake a difficult, dangerous and usually thankless task.

The Law

The Laws in relation to Assault police officer in the execution of their duty is found in section 60 of the Crimes Act 1900 (NSW).  It states:

Subsection (1) of that section states:

“A person who assaults, throws a missile at, stalks, harasses or intimidates a police officer while in execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years.”

Subsection (1A) contains an aggravated offence relating to public disorder, which states:

“A person who, during a public disorder, assaults, throws a missile at, stalks, harasses or intimidates a police officer while in execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 7 years.”

Subsection (2) contains an aggravated offence, if the officer sustained actual bodily harm, which states:

“A person who assaults a police officer while in execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years.”

Subsection (2A) contains an aggravated offence relating to public disorder, where the officer sustained actual bodily harm, which states:

“A person who, during a public disorder, assaults a police officer while in execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 9 years.”

Subsection (3) contains an aggravated offence, if the officer sustained a wound or an injury amounting to grievous bodily harm, which states:

“A person who by any means: (a) wounds or causes grievous bodily harm to a police officer which in the execution of the officer’s duty; and (b) is reckless as to causing that actual bodily harm to that officer or any other person; is liable to imprisonment for 12 years.”

Subsection (3A) contains an aggravated offence relating to public disorder, where the officer sustained a wound or an injury amounting to grievous bodily harm, which states:

“A person who by any means during a public disorder: (a) wounds or causes grievous bodily harm to a police officer which in the execution of the officer’s duty; and (b) is reckless as to causing that actual bodily harm to that officer or any other person; is liable to imprisonment for 14 years.”

What must the prosecution prove?

Since Assault police officer in the execution of their duty is a criminal offence, the burden of proof lies on the Prosecution.

The prosecution must prove the Accused’s guilt beyond reasonable doubt.

That is a high standard of proof that the prosecution must achieve before someone can be convicted of Assault police officer in the execution of their duty.

To establish Assault police officer in the execution of their duty the prosecution must prove each of the following matters beyond reasonable doubt:

  • You Assaulted a person; and
  • That person was a police officer; and
  • At the time of the assault, that police officer was in the execution of their duty.

If you are charged with the offence of Assault police officer in the execution of their duty what are your options?

National Criminal Lawyers (NCL) have been successful in defending a number of Assault police officer in the execution of their duty charges where the prosecution could not establish each of the elements offence. We have also achieved a number of non-convictions for Assault police officer in the execution of their duty.

NCL offer the following options for those who have been charged with Assault police officer in the execution of their duty:

  1. We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended;
  2. NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
  3. Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
  4. Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.

Pleading Guilty

If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.

Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.

Our Lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work at increasing the chances of obtaining a non-conviction or section 10.

Maximum Penalties

As charge of Assault police officer in the execution of their duty can be punished with a prison sentence of up to 2 years (if heard in the Local Court) or up to 5 years (If heard in the District Court) unless the matter is aggravated or the offence occurs during a public disorder in which case the penalties range from up to between 7 and 14 years imprisonment.

Please note that the penalties mentioned are reserved for the worse case offending and are unlikely to be the penalty you receive.

Pleading Not Guilty

If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.

A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.

National Criminal Lawyers are experts at these hearings and can advise you on what the police must prove beyond reasonable doubt.

Defences

Some of the possible defences available for those charged with Assault police officer in the execution of their duty can include:

  • If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue “Duress”;
  • If your actions were necessary to prevent a greater harm from occurring, you may have the defence of “Necessity”;
  • If you were defending yourself or another OR yours or another’s property you may have a Defence of “Self-Defence” even in situations where “Pre-Emptive Force” is used. Moreover, at times there be a circumstances where you may argue that there was “No duty or need to retreat”.

Statistics

The Courts are not bound by statistics however there must be reasonable consistency in sentences. A Magistrate or Judge should have regard to what has been done in other cases. In Green [2011] HCA 45, the plurity judgement of French CJ, Kiefel and Creennan JJ stated:

“Equal Justice” embodies the norm expressed in the terms “equality before the law”. It is an aspect of the rule of law.

For Assault police officer in the execution of their duty offenders 16% received fulltime imprisonment whereas 40% received a good behaviour bond.

Possible Penalty's

In NSW, a court can impose any of the following penalties for an Wounding or grievous bodily harm with intent charge.

  • Prison sentence;
  • Home Detention;
  • Intensive correction order (previously periodic detention);
  • Suspended sentence;
  • Community service order (CSO);
  • Good behaviour bond;
  • Fine; and/or
  • Section 10

However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:

  • Full time Imprisonment;
  • New ICO (ICO) with a home detention condition available;
  • New Community Correction Order (CCO);
  • Fine; or
  • New Conditional release Order (CRO)

Case Studies

Our client during a confrontation with police was sprayed with capsicum spray. As police left, our client threw from his balcony a pot plant and shouted at them in a foreign language. The pot plant broke and a piece hit an officer in execution of their duty. Our client  was charged with, and found guilty of, Assault Police in execution of their duty. We represented our client during his sentencing hearing where we submitted that he was suffering from long-term undiagnosed mental health problems that caused his erratic behaviour. Given the nature of his circumstances he was sentenced to a non-conviction by way of s10 (10)(1)(b) 12-month good behaviour bond.

Why National Criminal Lawyers?

There are three reasons to choose National Criminal Lawyers:

1. We get the results

We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.

2. We give a Senior Defence Lawyer guarantee

No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.

3. National Criminal Lawyers are the best defenders of your rights

At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.

If you have been charged with any Assault police officer in the execution of their duty offence our Team and National Criminal Lawyers are well versed and specialists in having charges either withdrawn and otherwise achieving favourable outcomes.

Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.

Book your first free appointment with National Criminal lawyers now.
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