1. Assault, Wounding and related offences By: Ricardo & Lydia

2. Statutory Framework

3. Common Assault Common Assault offences are covered in s61 of the Crimes Act 1900 (NSW) Common Assault incurs the maximum penalty of 2 years imprisonment “Whosoever assaults any person although not occasioning actual bodily harm, shall be liable to imprisonment for two years” An assault may be established by proof of either physical contact, or an act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence; R v Knight (1988) Extent of injury: common assault does not involve actual bodily harm, therefor if injuries suffered by victim are minor, it does not act as a mitigating factor

4. Assault occasioning actual bodily harm Assault occasioning actual bodily harm is covered under s 59 of the Crimes Act 1900 Assault occasioning actual bodily harm attracts a maximum penalty of 5 years imprisonment “Whosoever assaults any person and thereby occasioning actual bodily harm, shall be liable to imprisonment for five years” Extent of injuries and degree of violence: Typical examples of injuries amounting to actual bodily harm include scratches and bruises; McIntyre v R (2009) Actual bodily harm will have been occasioned where a victim been injured philologically in a very serious way, going beyond merely transient emotions, feelings and state of mind; Li v R (2005) The degree of violence involved in an assault is a material consideration in sentencing; R v Bloomfield (1988) An offence may be objectively serious due to the nature of the assault notwithstanding minor injuries; R v Burke (2001)

5. Reckless Wounding Reckless Wounding is covered under s 35 subsection 4 of the Crimes Act 1900 Reckless Wounding incurs the maximum penalty of 7 years imprisonment Wounding is defined in common law to involve the breaking of the skin It doesn’t need to involve the use of a weapon; R v Shepherd (2003) The offender’s mental state is a relevant factor, particularly if there is a degree of cognnitive disturbance

6. Reckless wounding in company Reckless wounding in company is covered under s 35 subsection 3 of the Crimes Act 1900 Reckless wounding in company incurs the maximum penalty of 10 years imprisonment

7. Reckless infliction of grievous bodily harm Reckless infliction of grievous bodily harm is covered under s 35 subsection 2 of the Crimes Act 1900 Reckless infliction of grievous bodily harm incurs the maximum penalty of 10 years imprisonment

8. Reckless infliction of grievous bodily harm in company Reckless infliction of grievous bodily harm in company is covered under s 35 subsection 1 of the Crimes Act 1900 Reckless infliction of grievous bodily harm in company incurs the maximum penalty of 14 years imprisonment An assault may be established by proof of either physical contact or an act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence Extent of injury:

9. Wound or inflict grievous bodily harm with intent to cause grievous bodily harm or resist arrest Wound or inflict grievous bodily harm with intent to cause grievous bodily harm or resist arrest is covered under s 33 subsections 1-2 of the Crimes Act 1900 Grievous bodily harm includes any permanent or serious disfiguring of the person, destruction of a fetus, and any grievous bodily disease Kennedy v R [2008] 181 A Crim R 185 it is held that the psychological condition of Kennedy is relevant in determining the objective seriousness of an offence under s33 s 41 of Crimes Act 1900 However in Muldrock v The Queen [2011] 244 CLR 120 the high court appear to exclude the mental condition of the offender from an assessment of objective seriousness

10. Use or possess weapon to resist arrest Use or possess weapon to resist arrest is covered under s 33B subsection 1 of the Crimes Act 1900 Any person who uses, attempts to use, threatens to use or possess an offensive weapon or instrument, or threatens injury to any person or property with intent to commit an indictable offence or with intent to prevent or hinder the lawful apprehension or detention either of himself/herself or any other person or to prevent or hinder a police officer from investigating any act or circumstance which reasonably calls for investigation by the officer is liable to imprisonment for 12 years 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 for imprisonment for 15 years R v Mostyn [2004] 145 A Crim R 304 it was an aggravating factor that, as a result of the offence, the victim (a police officer) suffered from Post Traumatic Distress Disorder that left him permanently disabled so far as his police duties were concerned

11. Attempt to choke Covered under s 37 of the Crimes Act 1900 Maximum penalty = 25 years A person is guilty of an offence if the person intentionally chokes, suffocates or strangles another person so as to render the other person unconscious, incapable of resistance, and is reckless as to rendering the other person unconscious, insensible or incapable of resistance A person is guilty of an offence if the person intentionally chokes, suffocates or strangles another person so as to render the other person unconscious, incapable of resistance and does so with the intention of enabling himself or herself to commit, or assisting any other person to commit, another indictable offence R v HQ [2003] NSWCCA 336 it was held that choking the victim to the point where she lapsed into a semi-consciousness constituted a serious form of the offence

12. Administer intoxicating substance Covered under s 38 of the Crimes Act 1900 A person who administers an intoxicating substance to another person or causes another person to take an intoxicating substance with intent to enable him/herself to assist a third person to commit an indictable offence is guilty of an offence. R v Reyes [2005] NSWCCA 218 Grove J said that “a gauge to the seriousness with which Parliament has regarded offences of this type can be

13. Assault causing death Covered under s 25A subsection 1 of the Crimes Act 1900 A person is guilty of such an offence if the person assaults another person by intentionally hitting the other person with any part of the persons body or with an object held by a person A person who is above the age of 18 years is guilty of an offence under this subsection if the person commits an offence under subsection (1) when the person is intoxicated

14. Assault causing death when intoxicated Covered under s 25A subsection 2 of the Crimes Act 1900 A court is required to impose a sentence of minimum 8 years on a person guilty of an offence under s 25A Any non-parole period for the sentence is also required to be no less than 8 years

15. Common Mitigating Factors Injury or Harm not substantial The fact that a victims injury has healed or were not substantial may be taken into account in the offender’s favor; R v Shauer (2000) NSWCCA s. 21A (3)(a) Crimes (Sentencing Procedure) Act 1999 (NSW) Provocation s.21A (3)(c) Crimes (Sentencing Procedure) Act 1999 (NSW) It is a mitigating factor where the offender was provoked by the victim into committing the offence The extent to which provocation constitutes a mitigating factor will depend on the relationship and proportion between the provocative conduct and the offence. –R v Buddle (2005) NSWCCA