Assault (VCE SSCE Legal Studies): Revision Notes
Assault
What is assault?
In legal terms, assault is the intentional or reckless use of direct or indirect force, or the threat of force, against another person without a lawful excuse. Assault can be classified as either a summary offence or an indictable offence depending on its severity.
Common assault (also called unlawful assault) is established under section 23 of the Summary Offences Act 1966 (Vic). This is a summary offence heard in the Magistrates' Court. The maximum penalty for common assault is 15 penalty units or three months' imprisonment.
Key terms
Intentional: Something deliberate, not an accident
Reckless: Acting (or not acting) with conscious awareness of the potential harm that is likely to be suffered
Penalty unit: A measurement used to calculate the amount of a fine. The government can change the value of a penalty unit annually (currently approximately $192 per unit)
Legislative provision
Section 23 of the Summary Offences Act 1966 (Vic) states:
"Any person who unlawfully assaults or beats another person shall be guilty of an offence. Penalty: 15 penalty units or imprisonment for three months."
Types of assault
Common assault differs from common law assault, which is a more serious type of assault heard in the County Court with a maximum penalty of five years' imprisonment. Other more serious assault offences include:
- Negligently, intentionally or recklessly causing serious injury
- Assaulting or threatening to assault a person with intent to resist arrest
- Assaulting or threatening to assault a worker (such as an emergency worker) on duty
Elements of assault
For the prosecution to secure a conviction for common assault under section 23, they must prove three elements beyond reasonable doubt:
The Three Essential Elements:
- The accused applied force or threatened to apply force
- The application or threat of force was intentional or reckless
- There was no lawful justification or excuse
The prosecution must prove all three elements beyond reasonable doubt to secure a conviction.
Element 1: The accused applied force or threatened to apply force
The prosecution must establish that there was either a threat of force or actual physical force against another person. The force does not need to be violent; even a slight touch can constitute assault. Force can be applied directly by the accused or indirectly through a weapon or other means such as light or heat.
Case Example: Flemington Racecourse Incident (2015)
In 2015, a 25-year-old woman pushed a uniformed police officer into bushes at Flemington Racecourse on Melbourne Cup Day. Her motive was to 'get on the news'. She pleaded guilty in the Magistrates' Court and was fined $800, plus ordered to pay $117 in costs and $150 compensation for the officer's broken glasses.
This demonstrates that assault does not require violent conduct or serious injury.
Element 2: The application or threat of force was intentional or reckless
The prosecution must prove the accused intended to apply force or threaten to do so, or was reckless about it. Intention means the person actually aimed to apply force. Recklessness requires the accused to realise their conduct would probably result in force being applied, but they did it anyway.
Element 3: There was no lawful justification or excuse
The prosecution must show the force or threat was applied without any legal authority or beyond the level authorised by law. For example, a police officer can use reasonable force when making an arrest, which is lawful and proportionate to the circumstances.
Defences to assault
An accused may be found not guilty if the prosecution fails to establish the elements of the offence. The accused may argue:
- The force was so minor or trivial it was insufficient to warrant a charge
- The contact was unintentional
- There was lawful justification for their actions
General defences
The following general defences may be raised (see Topic 6.1 for more details):
- Self-defence
- Mental impairment
- Duress
- Sudden or extraordinary emergency
- Automatism
- Intoxication
- Accident
Specific defences to assault
The prosecution must disprove beyond reasonable doubt that these justifications or excuses are not available to the accused.
Consent
A person cannot be convicted if their actions were consensual. However, consent is a partial excuse and does not completely absolve the accused. Whether consent applies depends on the circumstances and degree of harm inflicted. Generally, a person cannot consent to an unlawful act or to the infliction of serious injury or grievous bodily harm.
Consent in Sports:
In sports such as Australian rules football, high-speed collisions between players are expected. Sporting contact may be considered reasonable, though consent is unlikely to extend to unreasonable applications of force outside the rules.
Lawful arrest
A person with the authority to carry out an arrest (such as a police officer) may not be convicted of assault if they use reasonable force during a lawful arrest. The level of reasonable force depends on the circumstances. Little force would be required for a cooperative offender, but more force may be used when an offender resists arrest.
Lawful correction of a child
Parents (or their representatives) may discipline a child through physical means without it being assault, provided it is reasonable in all circumstances and genuinely intended for correction (not an angry beating). The physical act must not be unreasonable or excessive and must be appropriate to the child's age and physical or mental development.
Case Example: York (a Pseudonym) v The Queen [2014] VSCA 224
A mother was charged with common assault after repeatedly whipping her 14-year-old daughter with a computer cord, causing intense pain. The mother pleaded guilty and was initially sentenced to five months' imprisonment (wholly suspended).
On appeal, the Court of Appeal noted that while the discipline was unjustified and the mother had lost her temper, it was "far from being the most serious example of common assault". The sentence was quashed and a fine of $1000 imposed instead.
This case demonstrates the boundaries of lawful correction being exceeded.
Possible sanctions
Under section 23 of the Summary Offences Act 1966 (Vic), common assault can result in:
- A fine of up to 15 penalty units (approximately $2880)
- Imprisonment for up to three months
Factors affecting sentencing
Courts consider numerous factors when determining sentences, which may increase or lessen the seriousness of the offending:
Factors that increase seriousness:
- Nature and gravity of the offence (more serious or violent assault)
- Vulnerability of the victim (young person under 18, elderly, person with disability, person with impaired intelligence or mental disorder)
- Cruel or heartless conduct after committing the offence
- Planned or 'premeditated' assault
- Prior convictions, especially involving violence
- Multiple offences committed together with assault
Factors that lessen seriousness:
- Minor assault (light touch or push)
- Calling an ambulance, cooperating with police, demonstrating genuine remorse
- Positive personal circumstances (mental health considerations, good character)
- Guilty plea (especially early guilty plea, which spares victims and their families the stress of a hearing)
- No prior convictions
Case Example: Edwards-Hayes v The Queen [2022] VSCA 76
The offender was charged with multiple indictable offences and five summary offences, including two charges of common assault against his former partner. The offending involved seizing her by the hair, slapping her ear (causing barotrauma), kicking her leg, and other violent acts. The offending was described as "brutal and repulsive".
For the two common assault charges, he received three months' imprisonment for each, with a total effective sentence of two years and six months for all offending. The offender appealed on the basis the sentence was manifestly excessive, but the appeal was refused.
This case illustrates how common assault charges can result in imprisonment, particularly when part of a pattern of serious offending.
Community correction orders (CCO)
A community correction order (CCO) is a flexible, non-custodial sanction where the offender serves the sentence in the community with conditions attached. CCOs have replaced suspended sentences in Victoria.
Sentencing data (Victoria, July 2018 - June 2021)
According to the Sentencing Advisory Council, 17,166 people were sentenced for common assault in the Magistrates' Court. Of these:
- 85% were men
- Over 60% were aged between 25 and 44 years
Sanctions imposed:
- 29.3% received imprisonment (most less than six months)
- 19.2% received a community correction order
- 20.9% received a fine
- 30.3% received an adjourned undertaking, discharge or dismissal (found guilty or pleaded guilty but no further penalty imposed)
Trends and statistics
Victoria
Total criminal offences recorded in Victoria:
| Year | Number of offences |
|---|---|
| 2020 | 548,086 |
| 2021 | 477,789 |
| 2022 | 483,441 |
There was a 12.8% drop in criminal offences between 2020 and 2021, likely due to COVID-19 restrictions limiting opportunities for offending in nightclubs, bars, public transport and on the street. The 2020 figures were also affected by a significant increase in public health and safety offences (37,461 people charged with breaching lockdown orders in 2020, compared to 406 in 2019).
Assault statistics (Victoria, 2018-2022)
| Assault offence | 2018 | 2019 | 2020 | 2021 | 2022 |
|---|---|---|---|---|---|
| Family violence serious assault | 7,736 | 7,880 | 7,602 | 7,129 | 6,797 |
| Non-family violence serious assault | 8,502 | 8,148 | 7,357 | 7,806 | 7,952 |
| Family violence common assault | 13,858 | 15,111 | 16,075 | 15,940 | 16,443 |
| Non-family violence common assault | 11,078 | 11,474 | 10,934 | 11,484 | 12,836 |
| Assault on police and other officers | 3,006 | 2,977 | 3,507 | 3,095 | 2,970 |
| Total | 44,180 | 45,590 | 45,475 | 45,454 | 46,998 |
The data shows:
- Non-family violence assault remained relatively consistent
- Lockdowns may have reduced non-family violence assaults in 2020 (nightclubs and hotels closed)
- Assaults on police increased in 2020 (possibly due to breaches of public health orders)
- Family violence common assault increased over the five-year period
- Annual common assault allegations in Victorian schools (ages 10-16) rose from 199 in 2018 to 275 in 2022
Family violence concerns
During 2020 and 2021, health and justice experts raised concerns about COVID-19 lockdowns potentially increasing family violence due to:
- Financial difficulties and employment uncertainty
- Abusers at home for longer periods
- Reduced opportunity for victims to seek help
- Difficulty accessing support services while movements were monitored by perpetrators
Hidden Statistics:
While serious family violence assaults did not show a dramatic increase in recorded statistics, anecdotal evidence from victims and police indicated incidents increased. There was a 75% increase in Google searches for domestic violence support in Australia during this period. Family violence may have occurred but not been recorded.
The Royal Commission into Family Violence (2015) made 227 recommendations to the Victorian Government, all of which have been implemented. However, family violence rates remain high. It is estimated a woman in Australia is killed by male violence every six days, with some calling family violence a national disaster.
New South Wales
New South Wales has a population of approximately 8.2 million (about 1.5 million more than Victoria), so crime statistics typically show higher numbers of recorded offences.
The NSW Bureau of Crime Statistics and Research (BOCSAR) maintains statistical databases on crime and criminal justice in New South Wales.
Assault statistics (New South Wales, 2018-2022)
| Assault offence | 2018 | 2019 | 2020 | 2021 | 2022 |
|---|---|---|---|---|---|
| Domestic violence related assault | 29,718 | 31,337 | 32,261 | 32,125 | 33,410 |
| Non-domestic violence related assault | 31,889 | 32,398 | 29,538 | 28,299 | 30,667 |
| Total | 61,607 | 63,735 | 61,799 | 60,424 | 64,077 |
Data on assaults in NSW in 2022:
- 56% occurred at a residential location (38,980 victims)
- 97% did not involve a weapon (67,112 victims)
- 52% of victims were male (36,379 victims)
- 23% of victims were aged 25-34 at date of report (16,212 victims)
- 47% were family violence related (32,893 victims)
The data shows:
- Non-domestic violence assault remained stable with a slight drop in 2021
- Domestic violence related assault rose over the five-year period
- No evidence of increase due to COVID-19 restrictions
- People in regional NSW are more likely to be victims of domestic violence
- Domestic violence was behind about 40% of calls to police for assistance
Sentencing data (New South Wales, July 2018 - June 2021)
36,359 people were sentenced for common assault. While detailed statistics are not readily available:
- Estimated over 70% of offenders were men
- Vast majority were aged 20-39 years
For offenders sentenced between July 2021 and June 2022:
- About 6% received imprisonment
- About 21% received a supervised community sentence
- 19% received a fine
- Over 47% received an unsupervised community sentence
Possible impacts of assault
Assault significantly impacts three groups:
- The victim (and their family and friends)
- The community
- The offender
Impacts on the victim and their family
Assault can cause a range of physical and psychological effects:
Physical impacts:
- Pain and suffering from bruises, tissue damage, cuts or broken bones
- Short-term or long-lasting injuries
- Injuries may interfere with work, study, social or sporting commitments
- Lack of confidence to go out in public or be in crowds, especially if assault occurred in a public place
Impact on family:
- Assisting the victim in recovery
- Taking care of daily needs
- Taking victim to medical appointments
- Disruption to family life
- Trauma, grief, loss and related medical issues
- Lost income
- Continuing psychological issues, including for family members who witnessed the assault
- Loss of trust in law and order and community values
Case Example: Brighton Cosmetic Surgeon (November 2022)
A Melbourne cosmetic surgeon pleaded guilty to assaulting a woman at his Brighton home. He forcefully pushed her into a door frame, causing her to bleed from her forehead and fall to the ground. She suffered abrasions and swelling to her nose.
In her victim impact statement, the woman said her "most basic and fundamental right to feel safe had been violated". The magistrate noted the woman was trying to leave when attacked and that the offender, as a medical professional, stood over her without offering assistance.
The magistrate sentenced him to an eight-month community correction order with 80 hours of community service, but no conviction was recorded due to his guilty plea. This case illustrates the profound psychological impact on victims.
Impacts on the community
Intergenerational impacts:
- Violence is often learnt behaviour
- Young people who witness or experience violence may suffer emotionally and psychologically
- They are at risk of resorting to violence when faced with interpersonal issues
- May use violence because they don't know other ways to handle conflict
Resource impacts:
- Cost of publicly funded medical treatment
- Increased need for police and emergency services workers
- Loss of workplace productivity
- Damage to community resources
- Greater need for victim support services
Social impacts:
- Loss of trust in the legal system
- Decreased wellbeing, especially among the elderly and those living alone
- Impact on valuable community members (e.g., paramedics) who are assaulted and unable to continue working due to trauma
Impacts on the offender
While offenders deserve punishment, there are consequences beyond court-imposed sanctions:
Professional impacts:
- Loss of job and reputation (e.g., teachers who assault students)
- Public figures may suffer lost income and financial ruin
- Sporting clubs, workplaces and industry associations often have codes of conduct and can impose separate punishments
Personal impacts:
- Medical treatment and costs (if injured)
- Guilt or shame
- Legal costs and financial impact of sanctions (fines, imprisonment)
- Lost income, especially if imprisoned
- Impact on the offender's family's social standing, finances, health and wellbeing
Summary of impacts
| Victim and family | Community | Offender |
|---|---|---|
| Disruption to family life | Cost of publicly funded medical treatment | Medical treatment and costs |
| Trauma, grief, loss and related medical issues | Increased need for police and emergency services | Guilt or shame |
| Lost income | Loss of workplace productivity | Legal costs and financial impact of sanctions |
| Need for family care during recovery | Damage to community resources | Lost income, especially if imprisoned |
| Continuing psychological issues | Loss of trust in legal system | Impact on offender's family |
| Loss of trust in law and order | Decreased wellbeing (elderly, those living alone) |
Exam guidance
Key Strategies for Assault Questions:
Define accurately: Always begin by defining assault as "the intentional or reckless use of force or the threat of force against another person without a lawful excuse"
Remember the three elements: Structure your answer around the three elements the prosecution must prove beyond reasonable doubt
Use case examples: Support your arguments with real cases like the racecourse incident or the cosmetic doctor case to demonstrate understanding
Consider context: Distinguish between summary and indictable assault offences based on severity
Analyse defences: When discussing defences, explain both general defences and specific defences (consent, lawful arrest, lawful correction)
Evaluate sanctions: Consider factors that increase or decrease the seriousness of offending when discussing sentencing
Assess impacts: Use the three-category framework (victim, community, offender) when evaluating the impact of assault
Compare jurisdictions: Be prepared to compare Victorian and NSW statistics and approaches when required
Remember!
Key Points to Remember:
- Common assault is established under section 23 of the Summary Offences Act 1966 (Vic) and is a summary offence tried in the Magistrates' Court
- The maximum penalty is 15 penalty units or three months' imprisonment
- The prosecution must prove three elements beyond reasonable doubt: (1) force or threat of force was applied, (2) it was intentional or reckless, and (3) there was no lawful justification or excuse
- Defences include general defences (self-defence, mental impairment, duress, etc.) and specific defences (consent, lawful arrest, lawful correction of a child)
- Sentencing factors that increase seriousness include vulnerability of victim, prior convictions, and premeditation; factors that lessen seriousness include guilty plea, no prior convictions, and genuine remorse
- Family violence assault rates remain high in both Victoria and NSW, with significant ongoing concerns about victims' safety and support
- Impacts of assault extend beyond the victim to affect families, communities, and offenders themselves, creating lasting social, psychological and financial consequences