Assault Charges In The Magistrates Court Of Victoria

Assault crimes committed against the person are some of the most common offences in Victoria. 

The three most common assault charges within the jurisdiction of the Magistrates’ Court in Victoria are:

• Unlawful Assault – Section 23 of the Summary Offences Act 1996;
• Recklessly Cause Injury – Section 18 of the Crimes Act 1958; and
• Intentionally Cause Injury – Section 18 of the Crimes Act 1958.

If you have been charged with any assault offence, it is recommended that you consider seeking legal advice from Nardi Lawyers to help achieve the best outcome.

Unlawful Assault

Unlawful Assault is the least serious assault charge and is the most common offence against the person in Victoria. 

Section 23 of the Summary Offences Act 1996 states that:

“Any person who unlawfully assaults or beats another person shall be guilty of an offence”

The maximum penalty for this charge is 15 penalty units or imprisonment for three months.

The elements of Unlawful Assault

In order for an individual to be found guilty of Unlawful Assault in Victoria, the following elements of the offence must be proven by the Prosecution, beyond reasonable doubt:

• The offender applied force to another person or threatened them with violence;
• The offender acted intentionally or recklessly; and
• They did not have any lawful justification or excuse for their actions.

Actions which may lead to an Unlawful Assault charge

It is a common misconception that for the offence of Unlawful Assault to be proven, the offender must have applied force to another. 

Examples of actions which may lead to an Unlawful Assault charge include, but are not limited to:

• Punching, kicking, or applying force with any part of the body;
• Making gestures which may cause the Complainant fear that force will be applied – such as approaching an individual with a clenched fist;
• Threatening violence or the imminent application of force;
• Even spitting at someone may constitute Unlawful Assault.

Defences to Unlawful Assault

As noted earlier, the Prosecution must prove, beyond reasonable doubt, that the offender did not have any lawful justification or excuse for the assault.

The following justifications and excuses may be used as successful defences to Unlawful Assault:

• The Complainant consented to the assault;
• Self-defence; and
• Ejecting a trespasser.

Individuals may use reasonable force to defend themselves from impending violence, or to protect another person from violence. Self-defence, of course, differs from case to case, with “reasonable force” being determined on the circumstances of the violence which the individual needs to defend themselves or another from.

Sentence

The most common sentences for individuals who pleaded guilty to Unlawful Assault between 1 July 2018 to 30 June 2021 are:

• Adjourned Undertaking – 30.3%
• Imprisonment – 29.3%
• Fine – 20.9%
• Community Correction Order – 19.2%
• Other – 0.4%

Recklessly/Intentionally Causing Injury

Recklessly Causing Injury is the assault offence a step above Unlawful Assault. It is a more serious offence and is indictable.

Intentionally Causing Injury is again one step higher than Recklessly Causing Injury, with the key difference being that the offender intended on causing the injury suffered by the complainant.

Both offences are covered in Section 18 of the Crimes Act 1958 which states:

”A person who, without lawful excuse, intentionally or recklessly causes injury to another person is guilty of an indictable offence”

Penalty: If the injury was caused recklessly – level 6 imprisonment (5 years maximum)

  If the injury was caused intentionally – level 5 imprisonment (10 years maximum)

Section 15 of the Crimes Act defines injury as:

• Physical injury; or
• Harm to mental health; whether temporary or permanent.

Physical injury includes unconsciousness, disfigurement, substantial pain, infection with a disease and an impairment of bodily function.

Harm to mental health includes psychological harm but does not include an emotional reaction such as distress, grief, fear or anger unless it results in psychological harm.

The elements of Recklessly Cause Injury

In order for an individual to be found guilty of Recklessly Causing Injury in Victoria, the following elements of the offence must be proven by the Prosecution, beyond reasonable doubt:

• The complainant suffered an “injury”;
• The offender caused the complainant injury;
• The offender was reckless about causing injury; and
• The offender acted without lawful justification or excuse.

Actions which may lead to a Recklessly Cause Injury charge

To have been reckless about causing injury, the offender must have been aware that when assaulting, or engaging in the relevant conduct, it would probably cause injury.

The offender must have been aware that injury was a probable or likely outcome.

Examples of actions which may lead to a Recklessly Cause Injury charge include, but are not limited to:

• Pushing someone with force, causing them to trip and cut an area of their body
• Being involved in a physical wrestle with another and in the process fracturing a bone in their body
• Applying force to another’s body which causes a muscular injury.

Challenges and defences to Recklessly Cause Injury

In circumstances where an injury is not completely obvious, yet still alleged, it is important to ensure that there is sufficient evidence, through a medical report, that an injury was suffered as a result of the offender’s conduct. Recklessly Cause Injury charges can be successfully challenged when there is an absence of a medical report and even in circumstances where the medical report does not clearly link the conduct of the offender and injury sustained by the complainant. Medical reports must be read carefully, as injuries sustained prior to the injury may be noted by the medical practitioner.

In these circumstances, the offence may be downgraded to an Unlawful Assault charge or removed entirely.

Similar to Unlawful Assault, self-defence may also be used as a successful defence to Recklessly Cause Injury.

Sentence

The most common sentences for individuals who pleaded guilty to Recklessly Cause Injury between 1 July 2018 to 30 June 2021 are:

• Imprisonment – 39.3%
• Community Correction Order – 27.0%
• Adjourned Undertaking – 16.4%
• Fine – 16.2%
• Other – 0.5%

The elements of Intentionally Causing Injury

In order for an individual to be found guilty of Intentionally Causing Injury in Victoria, the following elements of the offence must be proven by the Prosecution, beyond reasonable doubt:

• The complainant suffered an “injury”;
• The offender caused the complainant injury;
• The offender intended to cause injury to the complainant; and
• The offender acted without lawful justification or excuse.

Actions which may lead to an Intentionally Cause Injury charge

As noted earlier, the prosecution must prove that the offender intended to cause injury to the complainant.

Engaging in conduct that resulted in an injury does not satisfy the element of intent and would therefore constitute a Recklessly Cause Injury charge.

Examples of actions which may lead to a Recklessly Cause Injury charge include, but are not limited to:

• Punching someone to the temple, causing them to lose consciousness.
• Twisting someone’s finger causing it to dislocate or fracture.
• Biting someone causing a laceration.

Challenges and Defences to Intentionally Cause Injury

As noted under the Recklessly Cause Injury heading, it must be shown that the complainant actually suffered an injury. The same issues may be raised in Intentionally Cause Injury cases.

One way in which an Intentionally Cause Injury charge can be challenged, is showing that the offender did not intend to inflict the injury suffered by the complainant. 

For example, in a physical altercation someone may be charged with intentionally cause injury because the other person broke a finger in a wrestle. However, the injury may have been caused by the offender’s body awkwardly pressing on the finger while they were wrestling.

In these circumstances, the charge may be removed entirely or downgraded to a Recklessly Cause Injury charge.

Similar to Unlawful Assault and Recklessly Cause Injury, self-defence may also be used as a successful defence to Intentionally Cause Injury.

Sentence

The most common sentences for individuals who pleaded guilty to Intentionally Cause Injury between 1 July 2018 to 30 June 2021 are:

• Imprisonment – 56.9%
• Community Correction Order – 26.9%
• Adjourned Undertaking – 7.9%
• Fine – 6.8%
• Other – 1%