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      assault vs battery

      What is Battery vs Assault?

      Lawyers are regularly asked about the difference between battery and assault. Both concepts deal with the use of physical force against another person.

      This article explores both ideas and how they are dealt with today.

      What is assault?

      An assault is any deliberate action where a person intentionally or recklessly instils in another the fear of immediate and unlawful violence. This includes punching, hitting, slapping and kicking a person.

      Assault can be both direct and indirect. Physical harm does not need to occur for an action to be considered an assault. For example, if you are held at gunpoint, this can constitute assault. 

      The penalty for different assault offences depends on the seriousness of any injury inflicted. Penalties include imprisonment, intensive corrections orders, fines, community correction orders and good behaviour bonds. Division 6 and 9 of the Crimes Act 1900 (NSW) outline assault legislation.

      What is battery?

      Battery is the use of physical force to cause harm to another person. It is treated as a form of assault as it involves causing physical harm or injury.

      Battery vs Assault

      Assault is the threat of force whereas battery refers to the use of force to inflict physical harm. The Crimes Act 1900 (NSW) no longer distinguishes between assault and battery. Instead, battery is considered a form of assault.

      In the past, those who were charged with battery would also be charged with assault, but this distinction has now changed. For example, if a person was charged with throwing a rock at a person, they would be charged with battery for the collision between the rock and the person and an assault charge would be applied for the stone being thrown towards the victim. This no longer applies and now only a charge of battery would be applied under NSW legislation. If you are charged with an offence, an experienced Sydney assault lawyer can provide advice and defences strategies. Contact Astor Legal on (020 7804 2823 or email us at info@astorlegal.com.au.

      Types of Assault

      The main types of assault charges are

      1. Common assault;
      2. Assault occasioning bodily harm;
      3. Wounding;
      4. Grievous bodily harm;
      5. Serious assault; and
      6. Sexual Assault.

      Common Assault

      Section 61 of the Crimes Act 1900 (NSW) sets out that common assault requires the prosecution to prove that:

      • the accused caused another person to fear immediate and unlawful violence, or that the defendant made physical contact with another person, and
      • the other person did not consent, and
      • the defendant’s actions were intentional or reckless.

      Common assault is the most common assault charge. Defences to assault include duress, necessity and self-defence. Self-defence is the most common type of defence. Once self-defence is raised, the prosecution must negative that the accused’s actions were necessary and reasonable.

      The maximum penalty for common assault includes 2 years goal and/or a fine of $5,500. The judge or magistrate may consider several objective and subjective factors during sentencing including mode, duration and location of the assault, age of the victim, prior criminal record of the defendant and mental illness.

      Assault Occasioning Bodily Harm

      Under Section 59 of the Crimes Act 1900 (NSW), assault occasioning bodily harm is when a person assaults another causing actual bodily harm. This crime has a maximum penalty of up to five years of imprisonment.

      ‘Actual bodily harm’ means injury that is more than merely transient or fleeting. If the crime occurred in the company with another person, the maximum penalty increases to 7 years imprisonment.

      Wounding

      Wounding is the breaking of the first two layers of skin. Under sections 33 and 35 of the Crimes Act 1900, a person can be charged with offences such as wounding with intent or reckless wounding. The maximum penalty varies from 7 years to 25 years imprisonment depending on the seriousness of the offence.

      Grievous Bodily Harm

      Grievous bodily harm means any permanent or serious disfiguring of a person. It can include causing a disease or the destruction of a foetus unless done in the course of a medical procedure or termination of pregnancy.

      The maximum penalties are set out in the table below:

      CrimeMaximum Penalty
      Wounding or causing grievous bodily harm with intent25 years imprisonment
      Recklessly inflict grievous bodily harm10 years imprisonment
      Recklessly inflict grievous bodily harm in company14 years imprisonment  

      Assault police

      The offence of assault police is when a police officer is assaulted in the execution of their duty.

      There are also specific assault offences against public officers. A public officer includes transit officers, healthcare workers, corrections officers, parole officers and child protection officers.

      The maximum penalties for assault police offences are:

      ChargeMaximum Penalty
      Assaulting, stalking, or intimidating a police officer with no grievous bodily harm inflicted5 years imprisonment
      Assaulting a police officer and inflicting bodily harm5 years imprisonment
      Maliciously wounding or inflicting grievous bodily harm on a police officer12 years imprisonment

      Sexual assault

      Under section 61I of the Crimes Act 1900 (NSW), sexual assault is when a person has sexual intercourse with another person without the consent of the other person and knows that the other person does not consent to the sexual intercourse. This can constitute a maximum penalty of up to 14 years of imprisonment.

      The penalty can be increased to 20 years if the charge is aggravated sexual assault or life imprisonment if the sexual assault is aggravated and occurs in company.

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