What is an Assault Occasioning Actual Bodily Harm ?
An Assault Occasioning Actual Bodily Harm is any act (but not a failure to act) where a person intentionally or recklessly causes another person to apprehend immediate and unlawful violence and Actual Bodily Harm results.
Some examples of assault include:
- Striking at a person with a first or slapping a person;
- Throwing an object at another person (even if it misses); and/or
- Unlawful imprisonment of another person
Assaults are divided into different categories – “common assaults” and “aggravated assaults”. This article deals with Assault Occasioning Actual Bodily Harm which is an aggravated assault.
An offence of Assault Occasioning Actual Bodily Harm is what is known as a “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).
What must the prosecution prove?
Since Assault Occasioning Actual Bodily Harm 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 Occasioning Actual Bodily Harm
To establish Assault Occasioning Actual Bodily Harm the prosecution must prove each of the following matters beyond reasonable doubt:
- You applied force, hit or touched another;
- You did so intentionally or recklessly;
- Without consent or lawful excuse; and
- That action caused bodily harm to the other person.
Actual bodily harm is “hurt or injury that interferes with the health or comfort of the person assaulted”.
The Law in relation to Assault Occasioning Actual Bodily Harm is found in section 59 of the Crimes Act 1900 (NSW). It states:
(1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years.
(2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years.
If you are charged with the offence of Assault Occasioning Actual Bodily Harm what are your options?
National Criminal Lawyers have been successful in defending a number of Assault Occasioning Actual Bodily Harm charges where the prosecution could not establish each of the elements of Assault. We have also achieved a number of non-convictions for Assault Occasioning Actual Bodily Harm.
NCL offer the following options for those who have been charged with Assault:
- 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;
- NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
- 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
- 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.
Fequently Asked Questions
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.
Assault Occasioning Actual Bodily Harm can be punished with a prison sentence of up to 2 years (If heard in the Local Court) or up to 7 years (If heard in the District Court).
Please note that the penalties mentioned are reserved for the worse case offending and are unlikely to be the penalty you receive.
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.
Some of the possible defences available for those charged with affray 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”.
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  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 Occasioning Actual Bodily Harm offenders 20% received full time imprisonment whereas 43% received a good behaviour bond.
In NSW, a court can impose any of the following penalties for a supply prohibited drug charge.
- Prison sentence
- Home Detention
- Intensive correction order (previously periodic detention)
- Suspended sentence
- Community service order (CSO)
- Good behaviour bond
- Section 10
However, from 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)
- New Conditional release Order (CRO)
Our client is a 31-year-old Nepalese lady residing in North Sydney.
She was in a domestic relationship with her partner for approximately two years. It was alleged that our client had assaulted her partner causing actual bodily harm in a public street.
Police alleged that our client had assaulted the alleged victim whilst being seated in the front seat of her car.
After seeking advice from our firm, our client plead not guilty in respect of the charge.
Given that a plea of not guilty was entered in respect of the charge, we were entitled to see the evidence against her. On an initial view of the evidence, it appeared that police had two independent witnesses that would give evidence that they observed ‘rumbling’ in the front seat, and that they saw our client on top of the alleged victim.
Whilst this appeared to be strong evidence initially, at the hearing, we cross-examined both of these witnesses extensively as to what they actually observed, how they apparently saw what they saw, and the distance between them and the car in question. It became apparent, after stringent cross-examination, that the witnesses did not in fact see exactly what was going on in the car, and that they could have been mistaken as to who was assaulting who.
In our final submissions to the Court, we drew the Courts attention to the discrepancies between the prosecution witnesses, and the fact that what occurred in the car could not be established beyond reasonable doubt. In turn, we submitted that there was insufficient evidence to prove beyond reasonable doubt that the assault in fact took place, or that self-defence could be ruled out by the prosecution.
This case illustrates that despite there being, initially, strong evidence against an individual, it does not necessarily mean that the prosecution has proven beyond reasonable doubt all of the elements of the alleged offending.
Why National Criminal Lawyers?
There are three reasons to choose National Criminal Lawyers:
1. Your best chance to get the result you’re after
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. How a Senior Defence Lawyer Can Help You Deal With Criminal Charges
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 Occasioning Actual Bodily Harm 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.