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Aggravated assault is a more severe form of assault whereby a physical attack or threat is escalated by aggravating factors, such as using a weapon, causing serious bodily harm, or targeting a vulnerable person.

If an assault is aggravated, it is likely that a harsher penalty will be imposed. This can include a criminal conviction and in some cases, full-time imprisonment. A specialist assault lawyer will be able to advise you on the best way to defend these chares.

What is Assault?

An assault is an intentional or reckless act that causes another person to fear immediate and unlawful physical violence. It usually involves the application of physical force, however, this is not required.

Aggravated Assault vs Assault vs Battery

An assault is an intentional or reckless act that causes a person to fear immediate and unlawful violence, whereas a battery is the actual physical contact or infliction of unlawful force on another person. An assault does not require physical contact to be made, while a battery does.

An aggravated assault is more serious than a regular assault. If the aggravating factor(s) listed above is an essential element of the assault offence, then it must not be taken into account as aggravating the assault.

What Assault Offences Can Be Aggravated?

Any assault offence can be aggravated, with the most common examples being:

• Common assault
• Assault occasioning actual bodily harm
• Reckless wounding
• Recklessly Inflict Grievous Body Harm
• Assault police officer in execution of duty

Will I Get a Criminal Record from An Aggravated Assault Charge?

A criminal record is more likely the more serious the assault offence is. As such, a criminal conviction is more likely for an aggravated assault offence than a common assault or simple assault offence.

You can avoid a criminal conviction for an aggravated assault offence by obtaining a Section 10 dismissal or a Conditional Release Order without conviction.

What Can Aggravate an Assault Charge?

An assault charge can be aggravated under Section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) if any of the below factors are present:

• If the victim was a police officer, emergency service worker, health worker, teacher, community worker and the offence arose because of the victim’s occupation or voluntary work.
• The offence involved the actual or threatened use of a weapon or actual or threatened use of violence.
• The offence involved the offender causing the victim to take, inhale or be affected by narcotic drug, alcohol or any other intoxicating substance.
• The offender has a record of previous conviction (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences).
• The offence was committed in company of another one or more persons or the offence occurred in the home of the victim or any other person
• The assault involved gratuitous cruelty.
• The injury, emotional harm, loss or damage caused by the assault was substantial.
• The assault was partially or wholly motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, gender identity, sexual orientation or age, or having particular variations of sex characteristics or a particular disability).
• The offence was committed without regard for public safety.
• The actions of the offender were a risk to national security.
• The offence involved a grave risk of death to another person.
• The offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence.
• The offender abused a position of trust or authority in relation to the victim
• The victim was vulnerable. For example, because the victim was very young or very old or had a disability, because of the geographical isolation of the victim or because of the victim’s occupation (such as a person working at a hospital), taxi driver, bus driver or other public transport worker, bank teller or service station attendance.
• The assault involved multiple victims or a serious of criminal acts.
• The offence was part of a planned or organised criminal activity.
• The offence was committed for financial gain.

Do Police Need to Prove Aggravating Factors?

Police must prove any aggravating factor beyond reasonable doubt.

Penalties for Aggravated Assault

Penalties for aggravated assault in New South Wales are determined by reference to the specific offence:

• Common assault carries up to 2 years imprisonment under Section 61 of the Crimes Act 1900 (NSW).
• Assault with intent to commit a serious indictable offence carries up to 5 years imprisonment under Section 58 of the Crimes Act 1900 (NSW).
• Assault occasioning actual bodily harm carries up to 5 years imprisonment under Section 59 of the Crimes Act 1900 (NSW).
• Assault occasioning actual bodily harm in company carries up to 7 years imprisonment under Section 59(2) of the Crimes Act 1900 (NSW).
• Reckless wounding carries up to 7 years imprisonment with a 3 year standard non-parole period under Section 35 of the Crimes Act 1900 (NSW).
• Reckless wounding in company carries up to 10 years’ imprisonment with a 4 years standard non-parole period under Section 35(3) of the Crimes Act 1900 (NSW)..
• Reckless infliction of grievous bodily harm carries up to 10 years’ imprisonment with a 4 years standard non-parole period under Section 35 of the Crimes Act 1900 (NSW).
• Reckless infliction of grievous bodily harm in company carries up to 14 years imprisonment with a 5 years standard non-parole period under Section 35 of the Crimes Act 1900 (NSW).
• Wound or inflict grievous bodily harm with intent to cause grievous bodily harm or resist arrest carries up to 25 years imprisonment with a 7 years standard non-parole period under Section 33 of the Crimes Act 1900 (NSW).
• Assault causing death carries up to 20 years’ imprisonment under Section 25A of the Crimes Act 1900 (NSW).
• Assault causing death when intoxicated carries up to 25 years’ imprisonment under Section 25A & 25B of the Crimes Act 1900 (NSW).
• Choke, suffocate or strangle carries up to 5 years imprisonment under Section 37 of the Crimes Act 1900 (NSW).
• Choke, suffocate or strangle being reckless as to rendering other unconscious carries up to 10 years’ imprisonment under Section 37(1) of the Crimes Act 1900 (NSW).
• Choke, suffocate or strangle and render unconscious, with intent to commit serious indictable offence carries up to 25 years’ imprisonment under Section 37(2) of the Crimes Act 1900 (NSW).
• Assaulting law enforcement officers and frontline emergency and health workers carry heavy penalties ranging up to 14 years imprisonment under Section 60 & 60A of the Crimes Act 1900 (NSW).

Minimum Sentences for Aggravated Assault

There is no minimum sentence for aggravated assault in Australia. However, in some cases there are standard non-parole periods which sets out the amount of jail time an ordinary offence of that nature should result in.

Defences for Aggravated Assault

Defences to aggravated assault include:

• Self-defence: This is the most common defence to aggravated assault. Self-defence is when a person’s actions are necessary to protect themselves, another person or property and are a reasonable response to the circumstances that they perceived.
• Lawful Correction: This is defence is contained in section 61AA(1) of the Crimes Act 1900 (NSW) and involves physical force being applied to a child as punishment. The force must be applied by a parent or guardian of the child; and must be reasonable having regard to the child’s age, health, maturity, or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances. if the force is applied to any part of the head or neck; or the force is applied to any other body part in such a way as to be likely to cause harm to the child that lasts for more than a short period, then it will not be regarded as reasonable.
• Duress: This is a legal defence where you are forced to commit a criminal offence by another person threatening you.
• Necessity: This defence applies if the aggravated assault was necessary.

Examples of Aggravated Assault

Examples of aggravated assault include:

• If it was committed in the home of the victim;
• If a weapon was used or threatened to be used;
• It was for financial gain;
• If there was significant planning involved in the assault.

Pleading Not Guilty to Aggravated Assault Charges

If you plead ‘not guilty’ to an aggravated assault charge, the Court will usually make orders for the brief of evidence to be served on you by police. This will include a statement from the victim and any witnesses, any video or CCTV footage as well as police statements setting out the steps taken in the investigation of the matter.

The case will proceed to a defended hearing or trial on a later date when all witnesses will be required to give evidence and be cross-examined. A judge or jury will hear the evidence and submissions from the prosecutor as well as a criminal defence lawyer.

They will then determine whether you are guilty or not guilty. If you are not guilty you may be able to make a costs application for the recovery of your legal fees.

If you are found guilty then the case will proceed to sentencing.

Pleading Guilty to Aggravated Assault Charges

If you please guilty to an aggravated assault charge, you will be sentenced to an appropriate penalty by a Judge.

The main factors that are taken into account when sentencing for aggravated assault are:

• Whether you pleaded guilty at the earliest opportunity and are entitled to a 25% discount on sentence;
• whether you have shown remorse and take responsibility for the offence;
• any explanation for your offending;
• any mental health issue that may have contributed to the offence;
• the impact of a criminal conviction on yourself, your dependants and your employment;
• the seriousness of the offending including any injury to the victim, the number of strikes and the duration of the assault.

Can I Pay a Bigger Fine to Avoid a Criminal Conviction?

No, you cannot pay a greater fine to avoid a criminal record. The Court will consider the case on its merits and whether a criminal conviction is warranted in all of the circumstances.  This will include the seriousness of the offence as well as evidence of your remorse, rehabilitation and likelihood of reoffending.

What is Aggravated Sexual Assault?

Aggravated sexual assault is a sexual assault committed where on of the following circumstances of aggravation under Section 61J of the Crimes Act 1900 (NSW) are present:

• At the time of or immediately before or after the sexual assault, the offender intentionally or recklessly inflicts actual bodily harm on the victim or any other person who is present or nearby, or
• At the time of, or immediately before or after the sexual assault, the offender threatens to inflict actual bodily harm on the victim or anyone else present or nearby by means of an offensive weapon or instrument, or
• At the time of, or immediately before or after the sexual assault, the offender threatens to inflict grievous bodily harm or wounding on the victim or any other person present o nearby, or
• The offender is in the company of another person or persons, or
• The victim is under the age of 16 years, or
• The victim is under the authority of the offender, or
• The victim has a serious physical disability or a cognitive impairment, or
• The offender breaks and enters into a dwelling-house or other building with the intention of committing the sexual assault or any other serious indictable offence, or
• The offender deprives the victim of his or her liberty for a period before or after the sexual assault.

Penalty for Aggravated Sexual Assault

Aggravated sexual assault carries a maximum penalty of 20 years’ imprisonment under section 61J of the Crimes Act 1900 (NSW).

Sexual assault carries a maximum penalty of 14 years imprisonment under section 61I of the Crimes Act 1900 (NSW).

The offence of aggravated sexual assault in company carries a maximum penalty of life imprisonment under section 61JA of the Crimes Act 1900 (NSW). This offence involves a person having sexual intercourse without the consent of the other person and knowing that other person does not consent, while in the company of another person or persons, and who:

• at the time of, or immediately before or after, the sexual assault, intentionally or recklessly inflicts actual bodily harm on the victim or any other person present or nearby, or
• at the time of, or immediately before or after, the sexual assault, threatens to inflict actual bodily harm on the victim or any other person present or nearby by means of an offensive weapon or instrument, or
• deprives the victim of his or her liberty for a period before or after the sexual assault.

Aggravated Indecent Assault

Aggravated indecent assault is a criminal offence under section 61L of the Crimes Act 1900 (NSW) involving a person who assaults another person and commits an act of indecency on or in the presence of the other person.

Aggravated indecent assault carries a maximum penalty of 7 years imprisonment.

Aggravated indecent assault carries a maximum penalty of 10 years’ imprisonment.

Indecent assault and aggravated indecent assault were repealed from 1 December 2018 by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018. It was replaced with a new offence of sexual touching pursuant to section 61KC and aggravated sexual touching pursuant to section 61KD of the Crimes Act 1900 (NSW).

Sexual touching carries a maximum penalty of 5 years imprisonment under section 61KC of the Crimes Act 1900 (NSW).

Aggravated sexual touching carries a maximum penalty of 7 years imprisonment under section 61KD of the Crimes Act 1900 (NSW).