Aggravated Assault

From Uni Study Guides
Jump to: navigation, search

Aggravated assault is an umbrella term for a range of assault offences which are more serious than the common assault offence. The assaults are considered 'aggravated' because of certain consequences, intents, or circumstances. Some of the 'consequence' driven aggravated assault offences, and their respective principles, are outlined here (ranked from least to most serious).

  • Assault occasioning actual bodily harm: s 59.
    • Actus reus: common assault + the occasioning of actual bodily harm.
      • Actual bodily harm has an ordinary meaning - must be more than trifling: R v Donovan.
      • Includes psychiatric injury, but not mere emotions: Chan-Fook.[1]
    • Mens rea: common assault (no need for specific intent to do actual bodily harm).
    • Max penalty: 5 years (7 if in company).
  • Negligent infliction grievous bodily harm: s 54.
    • Actus reus: causing grievous bodily harm.
      • Grievous bodily harm is defined as “the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman... any permanent or serious disfiguring of the person... any grievous bodily disease": s 4.
    • Mens rea: negligence.
    • Max penalty: 2 years
  • Reckless wounding: s 35 (3)-(4).
    • Actus reus: causing wounding.
      • Wounding requires an incision or puncture in the skin (dermis. not epidermis). : Shepherd.[2].
    • Mens rea: recklessness.
    • Max penalty: 7 years (10 if in in company)
  • Reckless infliction of grievous bodily harm: s 35 (1)-(2).
    • Actus reus: causing grievous bodily harm.
    • Mens rea: recklessness.
    • Max penalty: 10 years (14 if in in company)
  • Infliction of wounding or grievous bodily harm, with intent to inflict grievous bodily harm or resist arrest: s 33.
    • Actus reus: wounding or causing grievous bodily harm.
    • Mens rea: intent to cause grievous bodily harm or intent to resist arrest.
      • Note: specific intent offence. Intoxication is relevant.
    • Max penalty: 25 years.

This article is a topic within the subject Criminal Laws.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 669-677.

Introduction

[3] “Aggravated assault” describes a range of assaults which are more serious than “common assault” because of the presence of one or more additional aggravating elements. They are provided for in ss 32 – 61 of the Crimes Act 1900 (NSW). There is extensive overlap between the offences and no clear rationale for the creation of many of them.

There are a number of different 'aggravated factors', which can be classified as follows:

  • Assault with further specific intent - these are crimes that are aggravated by the intent to cause certain harm.
    • Examples include assault with intent to commit murder (ss 27; 29), commit grievous bodily harm or resist arrest (ss 33 - 33B) or commit an indictable offences (ss 37-38; 58).
  • Assault actually causing particular injuries - this is when an injury has resulted from the assault (regardless of intention).
    • Examples include assault occasioning actual bodily harm (s 59), reckless wounding or grievous bodily harm (s 35), and negligent infliction of grievous bodily harm (s 54).[4]
    • According to case law, no proof of specific intent to cause the relevant harm is required (unless required b legislation).
    • Note: there are offences which include both specific intent and occasioning of that relevant intent (ie, causing GBH with with intent to cause GBH: s 33)
  • Assaults using offensive weapons or dangerous substances (see below)
  • Assaults on victims of special status (see below).

Causing a disease

[5] Originally, it was not a crime to cause a disease. In Clarence (which was in 1888),[6] the court held that infecting a partner with gonorrhea (through consensual sex) does not come within the definition of 'actual bodily harm'.

  • In 1990, reforms were introduced after a number of assaults in which an attacker tried to infect people with AIDS. The offence of maliciously causing (or attempting to cause) another person to contract a “grievous bodily disease” was created in s 36 of the Crimes Act.
  • In 2007, s 36 was repealed and "grievous bodily disease" was incorporated into the definition of grievous bodily harm in s 4. That is the position today.
    • There is no clear definition of “recklessness” in the Crimes Act (but note s 4A, which provides that knowledge or intention is sufficient for recklessness) and therefore common law applies. In Coleman,[7] the court held that recklessness was a realisation by the accused of the particular type of harm that might be inflicted.

Alternative sources of law

Diseases are also dealt with in the Public Health Act 2010 (NSW):

  • s 52 makes it an offence for a person suffering from a scheduled medical condition, who is “in a public place or other place of public resort (including any means of transport)” to fail “to take reasonable precautions against spreading the medical condition.”
    • The maximum penalty is 50 penalty units or 6 months imprisonment.
  • s 79 makes it an offence to have sexual intercourse before informing the other person of the risk of contracting the condition.
    • The maximum penalty is a fine of up to 50 penalty units.

Assaults using offensive weapons or dangerous substances

[8] Assaults with the use of an “offensive weapon or instrument” etc are also aggravated assaults, regardless of actual injury.

  • “Offensive weapon or instrument” is defined in s 4 of the Crimes Act to include:
    • A dangerous weapon;
    • Anything that is made or adapted for offensive purposes;
    • Anything that, in the circumstances, is used/ intended for use for offensive purposes (regardless of what it is usually used for).

Case law suggests that some weapons may be inherently offensive (eg, guns and flick knives) but other items may be regarded as offensive weapons if brandished in a menacing manner (eg, screwdrivers, tyre levers, cricket and baseball bats and fireplace implements).[9]

Offences

See the Crimes Act ss 33-33B for crimes involving the use of offensive weapons:

  • s 38, use of “chloroform, laudanum or other stupefying or over-powering drug or thing”;
  • ss 39-41A, use of “poison or other destructive or noxious thing” to cause injury;
  • ss 46-48 and s 55, use of explosive or corrosive substance to cause injury;
  • s 49, setting traps;
  • s 35A, maliciously causing a dog to inflict grievous bodily harm (maximum 7 years’ imprisonment) or actual bodily harm (maximum 5 years).
    • Under s 35A (4), these offences may be caused by an omission to act, as well as by an affirmative act, by the person controlling the dog.

These offences are textbook examples of particularism - making offences for specific things. More examples include the offences of rock throwing and drink spiking:

  • s 49A - Rock throwing:
    • Actus reus: (1) throwing an object at a vehicle on a road, (2) in which there is a person, and (3) thus risking the safety of that person).
    • Mens rea: the throwing must have been intentional.
    • Max penalty: 5 years imprisonment.
  • s 38A - Drink spiking:
    • Actus reus: causing another person to be given or to consume drink or food which:
      1. contains an intoxicating substance that the other person is not aware it contains, or
      2. contains more of an intoxicating substance than the other person would reasonably expect it to contain.
    • Mens rea: intent that the person would suffer harm.
    • Max penalty: 2 years imprisonment or 100 penalty units, or both.

Assaults on victims of special status

[10] Some victims have an especially “protected” status and assaults against them may be more serious and carry greater penalties. Examples include:

  • assault on children at the time of birth.[11]
  • abandoning or exposing a child under the age of 2.[12]
  • assault on (or neglect to provide necessities for) wives, apprentices, servants and insane people.[13]
  • assault on clergy engaged in their duties.[14]
  • assault on persons endeavouring to preserve a vessel in distress.[15]
  • and assault or threaten a member of the crew of an aircraft or vessel whilst on board.[16]

Assault on law enforcement officials

There are many overlapping offences relating to assaults on police officers and other similar officials.

  • s 58 creates the offence of assault, resist or wilfully obstruct any officer whilst in the execution of their duty. It applies to officials such as constables, customs officers etc (and anyone acting in their authority).
    • The maximum penalty is 5 years’ imprisonment.
    • The offence is a Table 2 offence under the Criminal Procedure Act 1986 and if dealt with summarily under these provisions, carries a maximum term of imprisonment for 2 years.
  • In 2002, a new Division A was inserted into the Crimes Act.
    • The definition of “law enforcement officer” extends to the commissioners, commission members, DPP solicitors and Crown prosecutors.
    • s 60 is an offence of assaulting, stalking, harassing or intimidating a police officer (or other officer: s 60A) while in the execution of their duty.

Two important issues in many of these offences are:

  1. whether the police officers were acting in the execution of their duty. This includes:
    • Whether they had lawful authority to arrest.
    • Whether they were acting pursuant to a valid warrant of apprehension or had reasonable grounds to suspect the person had committed an offence.
  2. whether the prosecution must prove that the defendant knew (or was recklessly indifferent to the fact) that they were assaulting a police officer, or whether it is sufficient to simply prove that the act took place and the victim happened to be a police officer engaged in duty.

Case Law

The issue of whether the defendant knew he was assaulting a police officer was discussed in Reynhoudt:

  • There nothing really in the legislation which implies a specific intent requirement. The issue should be seen as one of strict liability.
  • This means that as to whether the defendant knew that he was assaulting a police officer, the prosecution only needs to prove the absence of a honest and reasonable mistake of fact.
    • The Textbook says that if this law was reviewed today (in the wake of He Kaw Teh), it would most likely be changed, and a specific intent standard of at least recklessness would be required (ie, to have sufficient mens rea, the defendant must have at least considered that the victim was a police officer).

The offence of intimidating a police officer (s 60) was considered in Meller v Low:[17]

  • Facts: the defendant threatened police officers on two occasions, telling them he will find out where they live and will 'get them back'.
  • Held: the police officer must have actually been intimidated. In this case, there is no evidence that the police officers were actually intimidated by those words.

What constitutes being intimidated was discussed in Manton:[18]

  • All that needs to be proved for 'intimidation' is that the acts or words caused the officer to experience fear or apprehension.
  • There is no need to prove that the intimidation influenced them to act in some way or deterred from their duty.

Assaults on public justice officials and other related persons

  • s 322 creates the offence of threatening or causing injury or detriment to witnesses, jurors, judicial officers or public justice officials (punishable by up to 10 years’ imprisonment).
  • s 326 creates the offence of threatening or causing injury or detriment to a person on account of anything lawfully done as a witness, juror, judicial officer or public justice official or in connection with any judicial proceedings (punishable by up to 10 years’ imprisonment).
  • According to Orcher,[19] a police officer may be considered a judicial officer but arrest should not be considered to be in connection with judicial proceedings, (even though it may be a necessary prerequisite).

Assaults in Particular Circumstances

Assault at school

[20] These offences are dealt with under Division 8A and pertain to both students and staff.

  • The offences represent the special status of a school “as places of education and learning... a sanctuary...” and the “unique nature of a school will benefit from specific laws to discourage criminal activity...”[21]

Assault during public disorder

In December 2005 a new offence was created in response to the violence and public disorder at Cronulla Beach (the “Cronulla Riots”).

59A - Assault during public disorder:

(1) A person who assaults any person during a large-scale public disorder, although
    not occasioning actual bodily harm, is liable to imprisonment for 5 years.
(2) A person who assaults any person during a large-scale public disorder, and by the 
    assault occasions actual bodily harm, is liable to imprisonment for 7 years.

End

This is the end of this topic. Click here to go back to the main subject page for Criminal Laws.

References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. [1994] 2 All ER 552.
  2. [2003] NSWCCA 351.
  3. Textbook, p. 669.
  4. Maximum punishment is 2 years imprisonment. In D [1984] 3 NSWLR 29, the CCA held that the degree of negligence required was akin to that required for manslaughter by criminal negligence (gross negligence).
  5. Textbook, pp. 670-1.
  6. (1888) 22 QBD 23.
  7. (1990) 19 NSWLR 467.
  8. Textbook, pp. 671-2.
  9. Pittman v Di Francesco (1985) 4 NSWLR 133.
  10. Textbook, pp. 672-6.
  11. Crimes Act 1900 (NSW), s 42.
  12. Crimes Act 1900 (NSW), s 43.
  13. Crimes Act 1900 (NSW), s 44.
  14. Crimes Act 1900 (NSW), s 56.
  15. Crimes Act 1900 (NSW), s 57.
  16. Crimes Act 1900 (NSW), s 206.
  17. [2000] NSWSC 75.
  18. [2002] NSWCCA 316.
  19. [1999] NSWCCA 356.
  20. Textbook, pp. 676-7.
  21. Second Reading Speech to the Crimes Amendment (School Protection) Bill 2002, Mr Watkins, Minister for Education and Training.
Personal tools
Namespaces

Variants
Actions
Navigation
Toolbox