Common Assault

The maximum penalty for common assault is imprisonment for two years. 

Such a penalty is reserved for the most serious cases only. The majority of people who have been charged with common assault do not go to prison.

This option is recommended only where you accept that:

1. you intentionally or recklessly committed an act that caused another person to apprehend immediate and unlawful violence; and
2. your conduct was without the consent of the victim; and
3. it was intentional or *reckless, and;
4. your conduct was without lawful excuse.

*Reckless means that you realised that the complainant might fear immediate violence, but you took that risk anyway.

A plea of guilty at the first available opportunity entitles you to a maximum sentencing discount of 25 per cent. It also demonstrates to the court that you have accepted responsibility for your actions.

What possible outcomes exist if found guilty?

• A fine
  • This may be up to $5,500.
•  A non-conviction via a section 10 – asking the court for leniency
  • Leniency is where the court has found you guilty, but has exercised a discretion not to convict you. Therefore, you will avoid:
    • a fine or a penalty, and
    • a conviction
• Conditional release order “CRO” (with or without conviction)
  • This is usually subject to a period of good behaviour.
  • If an offence is committed during the period of the order, a court may resentence you for the offence committed.
• Community Corrections Orders (“CCO”)
  • A court may exercise this option when aggravating circumstances exist. EG. a repeat offence.
  • An example of a CCO is performing service within the community.
• Intensive Corrections Order (“ICO”)
  • This is where a term of imprisonment can be served in the community.
• Full-time imprisonment
  • Served in a correctional facility.

The Prosecution must establish each of the following four elements:

• you intentionally or recklessly committed an act that caused another person to apprehend immediate and unlawful violence; and
• your conduct was without the consent of the victim; and
• it was intentional or *reckless, and;
• your conduct was without lawful excuse.

*Reckless means that you realised that the complainant might fear immediate violence, but you took that risk nonetheless.

NB: a future threat will not constitute a common assault, but may constitute intimidation.

Defences to common assault

• Self-defence or necessity
  • The law allows the use of reasonable force to protect your yourself, your property or someone else against physical injury or damage.
  • You must have honestly and reasonably believed that there was a threat to your safety.
  • Alcohol-induced paranoia is not a defence.
• There was no common assault
  • The alleged action did not happen.
  • The alleged act was neither intentional or reckless, but rather fell within the realm of ‘the exigencies of everyday life’. This means that ordinary person would not regard the act as an assault. EG. Jostling in a crowd or touching a person to gain their attention. Further, the alleged act was not reckless because you did not turn your mind to the possibility that any harm could ensue.
  • You were lawfully correcting a child.
  • You were lawfully exercising the power of a citizen’s arrest.
• Duress
  • Another person coerced or threatened you into assaulting another person.
• Mistaken identity
  • It was not you.

Note: Where there is a physical element, the test is persistence that has exceeded generally acceptable standards of conduct.