Common Assault

Common Assault Charges, Penalties and Defences

Common assault is where one person assaults another but doesn’t cause bodily harm. Common Assault is a serious crime that could result in gaol time, community service, fines, probation and a criminal conviction.

What is Common Assault?

An assault is any act and not a mere omission to act. By which a person intentionally — or recklessly — causes another to apprehend immediate and unlawful violence.

This means that you can be arrested and charged with Common Assault if you strike or apply force to another person, which was shown to be intentional or reckless and the touch or force must be without consent.

Importantly you can also be arrested and charged with Common Assault even if you do not touch another person. It is enough if you cause another person to apprehend immediate and unlawful violence. This would include for example threats of violence.

Section 61 of the Crimes Act States:

 Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for 2 years.

Penalties and Charges for Assault

Section 10 Dismissal

If you plead guilty to Common Assault you can ask that the Court deal with your matter by way of section 10. The court to deal with you in this way would have to determine that only nominal punishment is warranted. There are a number of factors the Court need to take into account before dealing with your case in such a way.

You can also ask that the Court deal with your case by way of section 10, if you are found guilty after a hearing of the case. However obtaining a section 10 after a hearing is more difficult.

If you are dealt with by way of section 10 (1) a, it means the matter is dismissed. It will not appeal on your criminal record.

Section 10 Conditional with Good Behaviour

A section 10 with a bond, is pursuant to section 10(1) b of the Crimes (Sentencing & Procedure) Act. The difference between this and section 10(1) a, is you are required to sign a bond with certain conditions to be of good behaviour for a period determined by the Court.

The conditions usually are to be of good behaviour and to comply with directions of a medical practitioner of Community Services. If you breach this bond the Court will be notified and you will have to appear before the Court who imposed the bond.

Community Service

Before the court can order you to perform community service, you have to be deemed suitable to participate by community services. The interview in relation to your suitability is either done at Court or your local Community services branch.

Intensive Correction Order

If the Court determines that a sentence of imprisonment is warranted, they can request that you be interviewed by Community Services to assess your suitability to comply with an intensive correctional order.

If you are deemed suitable and the order is made, you will have to comply with a number of conditions. It could include counselling, treatment, refraining from alcohol or performing community service.


A fine is the most common penalty imposed by the court. The fine must be paid within 28 days of the judgement. The court should consider the person’s ability to pay the fine when setting the amount. If the accused can’t pay the fine within 28 days, they can apply for an extension.

Gaol for Common Assault

This is often considered the last resort. Gaol is considered after the court has decided that no other sentencing option is appropriate. For a charge of common assault, the gaol sentence could be up to 2 years.

What is a defence to a Common Assault Charge

If you are pleading not guilty to common assault charges, possible defences are:

  • Self-defence/defence of another or defence of property
  • Accident
  • Necessity
  • Mistaken Identity (wrongful identification)

Self Defence

If accepted by the Court a person isn’t responsible for the offence because they were defending themselves, or another person.

When the defence raises the issue of self-defence, it is for the prosecution to prove that the person who was accused wasn’t acting in self-defence.


The prosecution has to prove the defendant with intent or being reckless committed the assault.

In some cases, the assault might not have been intentional or reckless.

The defence can raise the issue of an accidental touch as not being voluntary.


This is a difficult defence to prove. The person accused of assault must prove that they were in fear that they would be seriously harmed or even killed. The situation had to have been urgent, and the accused would have to believe that if they didn’t act, their life would have been in danger. The act of assault must be in proportion to the threat of danger.


The Lawyers at Benjamin & Leonardo Criminal Defence Lawyers, have appeared in hundreds of common assault cases.

We will ensure that your case receives the preparation and consideration required to give you every chance of receiving the best possible result.

If you have been charged with common assault and have any questions please make contact – our first conference is FREE.