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Charged with Common or Aggravated Assault? What You Need to Know
Being charged with assault in Burwood is confronting. A push during an argument, a workplace altercation, or a heated moment with a partner can quickly become a criminal matter under section 61 of the Crimes Act 1900 (NSW), or one of the more serious aggravated assault offences, such as assault occasioning actual bodily harm.
If this is your first contact with the criminal justice system, the most important thing to know is that outcomes vary widely. The key is what happens before your first court date, especially when facing serious consequences that may affect your future.
The Australian Legal Practice is a team of experienced assault lawyers Burwood representing clients across Burwood, Sydney CBD, and Parramatta. Our lawyers are available 24/7, the first consultation is free, and we focus on protecting your record, your employment, and your future from severe criminal consequences.
Call (02) 8084 9929 for a free consultation with a principal assault lawyers Burwood team.
What Is Common and Aggravated Assault?
The principal legislation is the Crimes Act 1900 (NSW). The main assault offences are:
- Section 61: Common assault, no injury required, applies to threats and minor contact
- Section 59(1): Assault occasioning actual bodily harm (ABH), where any hurt or injury that interferes with health or comfort is caused
- Section 59(2): Assault occasioning ABH in company, where the offence is committed with another person
- Section 35: Reckless wounding or causing grievous bodily harm, where serious injury is caused recklessly
- Section 33: Wounding or causing grievous bodily harm with intent, where serious injury is caused with intention
Other relevant provisions include section 418 (statutory defence of self-defence) and section 61AA (reasonable parental discipline). The aggravating factors that elevate sentencing are set out in section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Where an assault occurs in a domestic relationship, it is also classified as a domestic violence offence, often resulting in an AVO and strict bail conditions imposed by the court.
Common and Aggravated Assault Under Australian Law
The principal legislation is the Crimes Act 1900 (NSW). The main assault offences are:
- Section 61: Common assault, no injury required, applies to threats and minor contact
- Section 59(1): Assault occasioning actual bodily harm (ABH), where any hurt or injury that interferes with health or comfort is caused
- Section 59(2): Assault occasioning ABH in company, where the offence is committed with another person
- Section 35: Reckless wounding or causing grievous bodily harm, where serious injury is caused recklessly
- Section 33: Wounding or causing grievous bodily harm with intent, where serious injury is caused with intention
Other relevant provisions include section 418 (statutory defence of self-defence) and section 61AA (reasonable parental discipline). The aggravating factors that elevate sentencing are set out in section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Where an assault occurs in a domestic relationship, it is also classified as a domestic violence offence, often resulting in an AVO and strict bail conditions imposed by the court.
What Must the Prosecution Prove?
To secure a conviction, the prosecution must prove each element of the charge beyond reasonable doubt. If any element cannot be proven, the court must find you not guilty, even if you have already been prosecuted.
For common assault under section 61, the prosecution must prove:
- You applied force to another person, or caused them to apprehend immediate unlawful violence
- The conduct was without the other person’s consent
- You acted intentionally or recklessly
- There was no lawful excuse, such as self-defence
For aggravated assault charges, the prosecution must prove the elements of common assault plus the additional element that elevates the offence:
- Section 59 ABH: Actual bodily harm was caused, meaning any injury that interferes with health or comfort, including bruises, scratches, or recognised psychiatric injury.
- Section 35 reckless GBH: A really serious injury such as broken bones, permanent disfigurement, or grievous bodily disease was caused, and you foresaw the possibility of that injury.
- Section 33 GBH with intent: Grievous bodily harm was caused with the intention of causing such harm, which is a higher threshold than recklessness.
The standard of proof, beyond reasonable doubt, is the highest in the legal system. Failure on any element entitles you to a not guilty verdict.
Penalties for Common and Aggravated Assault in NSW
Sentencing for assault charges ranges from no conviction recorded through to lengthy custodial sentences. The actual outcome depends on the specific charge, the seriousness of the conduct, and personal circumstances.
Charge | Local Court Max | District Court Max | Standard Non-Parole |
Common assault (s 61) | 2 years and/or $5,500 | 2 years and/or $5,500 | None |
Assault occasioning ABH (s 59(1)) | 2 years | 5 years | None |
Assault occasioning ABH in company (s 59(2)) | 2 years | 7 years | None |
Reckless wounding (s 35) | Indictable only | 7 years (10 in company) | 3 years |
Reckless GBH (s 35) | Indictable only | 10 years (14 in company) | 4 years |
GBH with intent (s 33) | Indictable only | 25 years | 7 years |
Sentencing options available to the court:
- Section 10 dismissal (no conviction recorded)
- Conditional Release Order (CRO) with or without conviction
- Fine
- Community Correction Order (CCO)
- Intensive Correction Order (ICO), served in the community with strict conditions
- Full-time imprisonment
More serious offences can lead to prison, especially where the accused has a prior criminal history or the offence is linked to drug, traffic, or drink related incidents.
Factors that influence the severity of the penalty:
- Seriousness of the injury caused (or threatened)
- Whether a weapon was used
- Whether the offence was in company or against a vulnerable victim
- Whether the conduct occurred in a domestic violence context
- Your prior criminal record
- Whether you were on bail at the time
- Early plea of guilty
- Genuine remorse and steps toward rehabilitation, such as counselling
- Provocation or self-defence elements that fall short of a complete defence
Common assault and less serious ABH matters often result in non-conviction outcomes for first-time offenders. Wounding and grievous bodily harm offences almost always result in custodial sentences on conviction.
Possible Defences Against an Assault Charge
Several defences can result in an assault charge being dismissed or reduced. Each is assessed on the specific facts of the case.
- Self-defence (section 418): The conduct was a reasonable response to a perceived threat to yourself, another person, your property, or to prevent unlawful detention. Once raised, the prosecution must disprove self-defence beyond reasonable doubt
- Defence of another: The force used was necessary to protect another person from harm
- Consent: The other person consented to the contact (such as in lawful sport or medical procedures). Consent does not apply where the conduct results in serious injury
- Lack of intent or recklessness: The contact was accidental rather than deliberate or reckless, such as bumping into someone in a crowded space
- Honest and reasonable mistake of fact: You held a genuine and reasonable belief in a state of facts that, if true, would justify your conduct
- Duress: You were forced to act by threats of serious harm from another person
- Necessity: The conduct was necessary to avoid imminent and greater harm
- Mistaken identity: You were not the person who committed the alleged offence
- Lawful correction (section 61AA): A parent applied reasonable force to discipline a child, within the statutory limits
The viability of each defence depends on the evidence available, including CCTV, witness statements, medical reports, and the police fact sheet. Strong legal representation from experienced assault lawyers Burwood can significantly improve your chances of avoiding criminal consequences or prison.
Your Options When Charged with Common or Aggravated Assault
When you are charged with assault, you face strategic decisions that shape the outcome. The right path depends on the strength of the prosecution case and your personal circumstances.
- Negotiate with the prosecution. Strong early submissions can lead to the charge being withdrawn, downgraded (for example, from s 59 ABH to s 61 common assault), or to amendments to the agreed facts that significantly reduce the seriousness for sentencing purposes
- Plead not guilty and defend the charge. Where the prosecution evidence is weak or a defence is available, contesting the charge at hearing is often the right approach. Common assault and ABH matters are heard before a Judge; wounding and GBH are heard before a Judge and jury
- Plead guilty and seek the best sentencing outcome. Where guilt is clear or evidence is overwhelming, an early plea attracts a sentencing discount. Strong mitigation material, character references, and rehabilitation evidence can support an application for a Section 10 dismissal or CRO without conviction
These decisions are critical, particularly where you may also be facing related offences such as drug, traffic, or drink driving matters. Early legal advice helps protect your position, especially when dealing with bail and AVO conditions.
Why Choose The Australian Legal Practice for Assault Charges
- Principal-level representation. You deal directly with an experienced senior assault lawyer Burwood, not a junior or a call centre
- 24/7 availability on (02) 8084 9929. Assault arrests often happen outside business hours and require immediate response
- Three Sydney offices: Burwood (next to Burwood Local Court), Sydney CBD (Chifley Tower), and Parramatta (next to Parramatta Local Court)
- Free initial consultation so you can assess your defence options before your first court date
- Fixed-fee arrangements available for common assault and standard ABH matters
- Strong record of Section 10 dismissals and non-conviction outcomes for first-time offenders
- Trial advocacy experience in District Court and Supreme Court for serious wounding and GBH matters
- Integrated advice on associated ADVOs where the assault is in a domestic context
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Frequently Asked Questions About Common and Aggravated Assault
Common assault under section 61 of the Crimes Act 1900 (NSW) involves no injury or only minor injury and carries a maximum of 2 years. Aggravated assault refers to elevated offences such as assault occasioning ABH (s 59), reckless GBH (s 35), or GBH with intent (s 33), or to common assault with aggravating factors under section 21A. Penalties for aggravated assault range from 5 to 25 years.
Yes. Common assault includes conduct that causes another person to apprehend immediate unlawful violence, even without physical contact. Threatening gestures, raised fists, or verbal threats accompanied by intent can all amount to common assault.
Actual bodily harm includes any hurt or injury that interferes with health or comfort. Bruises, scratches, swelling, and recognised psychiatric injury (such as a clinically diagnosed anxiety disorder caused by the assault) all qualify. The injury does not need to be permanent or require medical treatment.
Yes. Section 418 of the Crimes Act 1900 (NSW) applies where you believed your conduct was necessary to defend yourself, another person, or your property, and the response was reasonable in the circumstances as you perceived them. Once self-defence is raised, the prosecution must disprove it beyond a reasonable doubt.
Most common assault matters in Burwood Local Court do not result in full-time imprisonment, particularly for first-time offenders. Alternatives include Section 10 dismissals, CROs, CCOs, and ICOs. Aggravated assault charges involving wounding or GBH are far more likely to result in custodial sentences.
