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Nick Kyrgios has avoided a criminal conviction being recorded against him, despite pleading guilty to assault his ex-girlfriend Chiara Passari in Australia.

The 27-year-old tennis star initially planned to have the common assault charge dismissed pursuant to a section 334 mental health application in the ACT Magistrates Court.

However, that application was withdrawn when a court found he was not suffering from a significant depressive illness.

He then pleaded guilty to the charge with Magistrate Beth Campbell choosing not to record a conviction against him.

Nick Kyrgios Assault Charge

Prosecutors in the Nick Kyrgios assault case tendered  a statement of facts to the court which revealed that on 10 January 2021, Nick Kyrgios and Chiara Passari were outside Ms Passari’s Canberra residence.

The pair were involved in a loud argument, which led Kyrgios to order an Uber.

Once the Uber arrived, it was alleged that the tennis star stepped into the front passenger seat. However, Ms Passari stood between the passenger side and the door to prevent it being closed.

It was alleged that the argument continued with Passari asking Kyrgios to get out of the car while the Uber driver refused to leave until the door was closed.

The court heard Kyrgios then told Ms Passari, “Leave me the f*** alone, I’m going home and don’t want to be with you…Just f***ing piss off.”

Kyrgios then told the driver, “dude leave”, before pushing Ms Passari so she fell down, landing on her right side. This formed the basis for the common assault charge.

Notably, Kyrgios may have been able to defend the charge on the basis that he was acting to “prevent or end the unlawful imprisonment of himself”. On the face of it, it is arguable that Ms Passari’s actions in preventing him from leaving in the Uber amounted to an unlawful imprisonment. This defence is contained in Section 42 of the Criminal Code Act 2002 and is more commonly known as self-defence.

It was also alleged that Ms Passari suffered a sore shoulder and grazed knee. However, the grazed knee is not a matter the court could take into account as it disclosed a more serious offence that Kyrgios was not charged with – namely, assault occasioning actual bodily harm. This is known as the Di Simoni principle.

No Conviction for Common Assault

The court ultimately chose not to record a criminal conviction for common assault against Nick Kyrgios pursuant to Section 17 of the Crimes (Sentencing) Act 2005.

Section 17 allows a court that finds a person guilty of an offence to not record a conviction against them. This means that there is no conviction, there is no criminal record.

There are two forms of Section 17 orders:

• A complete dismissal under Section 17(2)(a); and
• A conditional dismissal with a good behaviour order under Section 17(2)(b).

The magistrate chose to dela with Kyrgios by way of a section 17 complete dismissal. Her Honour described the incident as “a single act of stupidity or frustration”.

She assessed his conduct as that of “a young man trying to extricate himself from a heighted emotional situation…You acted in the heat of the moment”.

She told Mr Kyrgios that references from family showed he had a lot of “love and support” around him.

“I am dealing with you in the same way I would deal with any young man in this court. You are a young man who happens to hit a tennis ball particularly well,” she said, reflecting the relatively minor nature of the allegation.

Criminal lawyers explain that it is not unusual for a first offence of common assault to be dealt with in this manner. This is particularly so given the statement of facts expressed that Nick Kyrgios only pushed Ms Passari once, ostensibly to get her away from the Uber and allow him to leave.

What is Common Assault?

Common assault carries a maximum penalty of two years’ imprisonment under Section 26 of the Crimes Act 1900 (ACT).

It is an act whereby a person intentionally or recklessly causes another person to apprehend immediate and unlawful violence.

A first offence will generally be dealt with more leniently by the Court. A list of 10,728 first offence common assault sentencing cases in the Local Court suggests that you will be far more likely to receive a non-conviction dismissal if you have no prior record.

However, there are still a large amount of individuals who are convicted despite it being their first offence. That is why it is important that you contact experienced assault lawyers so that they can prepare your case meticulously. Contact Astor Legal on (02) 7804 2823 or email us at info@astorlegal.com.au.

While jail is a possibility, a very small number of offenders are sentenced to full-time imprisonment. More significantly, the overwhelming majority of offenders received convictions for this offence. The rate of convictions increases for common assault domestic violence charges.