Affray – Section 93C  of the Crimes Act 1900

The maximum penalty for affray is:

• Imprisonment for ten years.

Please note that such a penalty is reserved for the most serious cases only. 

This option is recommended only where you accept that:

• you used or threatened to use violence against a person, and
• you intended to use or threaten violence against another person, or you were aware that your conduct may be violent or threatening, and
• your conduct would cause an ordinary person to fear for their safety, and
• you did not have a lawful excuse for your conduct.

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

What possible outcomes exist if found guilty?

• 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.
    • 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”)
  • 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.

To prove affray, the Prosecution must establish beyond a reasonable doubt that:

• you used or threatened to use violence against a person, and
• you intended to use or threaten violence against another person, or you were aware that your conduct may be violent or threatening, and
• your conduct would cause an ordinary person to fear for their safety, and
• You did not have a lawful excuse for your conduct.

If the Prosecution cannot prove all of the above elements beyond reasonable doubt, then the court must find you not guilty.

Defences to Affray

• Self-defence
  • 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.
  • The courts will consider the nature of the threat faced and the accused’s physique, age, and sex.
• Duress
  • Another person coerced or threatened you into participating in the affray, or the circumstances warranted such an action.
• Necessity
  • To stop a greater harm or injury from occurring.
• There was no intention
  • This is where you had either not formed an intention to cause affray, or were not aware that your conduct was violent or threatening.
• An ordinary person would not fear for their safety
  • If an assault is directed to one person, rather than extending to others, then a person of reasonable firmness may not fear for their personal safety.
• Mistaken identity
  • You were not involved in the affray.