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s339 Criminal Code 1889 makes it an offence to unlawfully assault a person and so cause them bodily harm.
What the prosecution must prove.
The prosecution must prove that:
1. The defendant assaulted the complainant;
2. The assault was unlawful;
3. The assault caused bodily harm.
What it means.
Bodily harm is an injury that interferes with a person’s health or comfort. A transient sensation of pain alone without an identified bodily injury does not constitute ‘bodily harm’.
An assault includes touching, moving or otherwise applying force of any kind to someone else directly or indirectly without consent.
An assault is lawful if there is consent. A person must consent to the application of force and the extent of the force. If the force exceeds the consent there is no consent and it is unlawful.
An example of implied consent is a contact sport. A punch in boxing and a tackle in football are assaults and would be unlawful but for the fact players are taken to consent. The consent is limited to the application of force within the rules of the game. Although hardly ever prosecuted at a professional level, punching a player during a game of football is an unlawful assault because it is against the rules.
For more serious assaults consent is not a defence.
The available defences.
Self-defence and defence of another
The usual penalties.
The maximum penalty for the criminal offence of Assault Occasioning Bodily Harm is 7 years imprisonment. The maximum penalty increases to 10 years imprisonment if a defendant used or threatened to use a weapon or was in the company of others when the offence was committed.
The maximum penalty is a poor numerical indicator of sentences usually imposed. It plays a very important role in setting the seriousness of an offence. The maximum penalty is hardly ever imposed.
A court must impose a community service order in addition to any other penalty if the offence was committed in a public place whilst intoxicated by drugs or alcohol. This only applies if these circumstances are expressly alleged in the wording of the charge and either admitted or proved beyond reasonable doubt.
The penalty for a first offence of this nature can vary from a fine to a sentence of actual imprisonment depending on the circumstances of the offence. A single punch causing only bruising may attract a fine. Kicking someone on the ground in licensed premises causing a fractured jaw will expose a person to a risk of imprisonment.
It is important to seek expert advice before dealing with a criminal offence of Assault Occasioning Bodily Harm.
Factors that affect the appropriate penalty include the nature of the force, the extent of the force (was it a single or multiple blows), the circumstance of the victim and the context. Assaults in a domestic context are viewed particularly seriously.