In Western Australia, common assault can involve either physical contact or threatening behaviour that causes another person to fear immediate violence. Assault occasioning bodily harm is a more serious offence because it involves injuries that interfere with a person’s health or comfort, including bruising, swelling or broken bones. Penalties depend on whether the matter is heard in the Magistrates Court or District Court and whether aggravating circumstances apply. Courts consider the seriousness of the offending, any aggravating factors, available legal defences, the offender’s personal circumstances, and whether a spent conviction is appropriate. Early legal advice is important to understand the charge, assess possible defences and achieve the best possible outcome.
What is the difference between common assault and assault occasioning bodily harm in Western Australia, what penalties apply, and what does the court consider when deciding the outcome?
Our Criminal Team discuss this important topic.
Being charged with assault can have serious consequences, even where the injuries appear minor. The type of assault charge, the circumstances surrounding the incident, and your personal circumstances can all affect the outcome.
Western Australian courts consider far more than the injury itself. They will look at the nature of the conduct, whether any aggravating circumstances apply, and whether there are any legal defences available.
If you have been charged with assault, obtaining legal advice as early as possible can make a significant difference to how your matter is managed and presented to the court.
Common assault
Common assault is the least serious category of assault, but it is still a criminal offence.
Contrary to what many people believe, physical injury is not required. An assault can occur where a person intentionally applies force to another person or causes them to fear immediate violence.
Examples include:
- Pushing
- Slapping
- Striking
- Kicking
- Spitting
- Threatening violence where the victim reasonably fears the threat may be carried out.
Assault occasioning bodily harm and grievous bodily harm
Where an assault causes injury, more serious charges may apply.
Assault occasioning bodily harm
“Bodily harm” refers to injuries that interfere with a person’s health or comfort. The injury does not need to be severe.
Examples may include:
- Bruising
- Swelling
- Black eyes
- Cuts or abrasions
- Broken bones.
Even relatively minor injuries can amount to bodily harm under Western Australian law.
Grievous bodily harm
Grievous bodily harm involves injuries that are likely to cause permanent injury to health.
The injury does not have to require medical treatment or result in a long-term disability for the offence to be established.
Penalties for assault occasioning bodily harm in WA
The maximum penalty depends on where the matter is heard and whether aggravating circumstances exist.
If heard in the Magistrates Court
The maximum penalty is:
- 2 years’ imprisonment and a fine of up to $24,000.
If the offence is committed in circumstances of aggravation, the maximum penalty increases to:
- 3 years’ imprisonment and a fine of up to $36,000.
If heard in the District Court
Where the matter proceeds on indictment, the maximum penalty increases to:
- 5 years’ imprisonment, or
- 7 years’ imprisonment where circumstances of aggravation apply, including racial aggravation.
Importantly, imprisonment is not automatic.
For many first-time offenders, the court may impose alternatives such as:
- A fine
- A community-based order
- An intensive supervision order.
The appropriate sentence will depend on the individual circumstances of the offence and the offender.
Can you receive a spent conviction?
When sentencing, you may ask the Magistrate or Judge to make a Spent Conviction Order.
To grant a spent conviction, the court must be satisfied that:
- You are unlikely to commit the offence again
- You are of good character or the offence is relatively minor
- Recording the conviction would have a disproportionate adverse effect on you, such as affecting your employment.
There is an important limitation.
A court cannot grant a spent conviction at sentencing if you receive:
- An Intensive Supervision Order, or
- Any term of imprisonment, including a suspended sentence.
What does a spent conviction mean?
If a Spent Conviction Order is granted:
- In most circumstances you do not have to disclose the conviction to employers, landlords or other organisations
- The conviction will generally not appear on your National Police Certificate.
Circumstances of aggravation
Certain factors increase the seriousness of an assault offence and expose an offender to higher maximum penalties.
These include where:
- The accused and victim are in a domestic relationship
- A child was present during the assault
- A restraining order was in force when the assault occurred
- The victim was aged 60 years or older
- The assault was racially motivated.
What is racial aggravation?
Racial aggravation occurs where the accused demonstrates hostility towards the victim because of the victim’s membership of a racial group.
Possible legal defences
Every assault matter turns on its own facts. Depending on the circumstances, several legal defences may be available.
Self-defence
A person may be acting lawfully if they were defending themselves or another person and reasonably believed their actions were necessary and proportionate to the threat they faced.
Duress
A defence of duress may apply where a person committed the offence because they feared the consequences of refusing another person’s demands.
Provocation
Provocation may apply where the accused was deprived of self-control because of the victim’s conduct.
The force used must not be disproportionate to the provocation and must not have been intended to cause death or grievous bodily harm.
Mental impairment
A defence may be available where the accused was mentally impaired at the time of the offence and could not understand the nature of their actions or that those actions were wrong.
Immature age
A defence may arise where the accused was below the age of criminal responsibility and unable to understand the nature of their conduct.
What evidence does the prosecution rely on?
The prosecution may rely on a range of evidence to establish both the assault and any resulting injuries.
This commonly includes:
- Witness statements
- Medical reports
- Forensic evidence
- CCTV footage
- Statements made by the accused.
What must the prosecution prove?
To secure a conviction for assault occasioning bodily harm, the prosecution must prove each element beyond reasonable doubt.
They must establish:
- Physical force was applied to another person
- The force was applied intentionally or recklessly
- The conduct caused bodily harm by interfering with the victim’s health or comfort.
Charged with assault?
Assault allegations should always be taken seriously. The charge you face, the available evidence and any possible legal defences can significantly affect the outcome.
Obtaining legal advice early can help you understand the allegations, assess any available defences, and ensure your matter is properly prepared before it reaches court.
FAQs.
Yes. Under Western Australian law, common assault does not always require physical contact. Threatening another person with immediate violence may be enough if they reasonably feared the threat would be carried out.
Not necessarily. While imprisonment is available for serious cases, courts also impose fines, community-based orders and intensive supervision orders, particularly for some first-time offenders. The sentence depends on the facts of the case and the offender’s circumstances.
Common assault generally involves threats or minor physical contact and does not require injury. Assault occasioning bodily harm involves injuries that interfere with the victim’s health or comfort, even if those injuries are relatively minor.
Possibly. The court may grant a Spent Conviction Order if the legal requirements are met. However, a spent conviction cannot be granted if you receive an Intensive Supervision Order or any term of imprisonment, including a suspended sentence.
Police and prosecutors commonly rely on witness statements, medical reports, forensic evidence, CCTV footage and statements made by the accused when investigating and prosecuting assault offences.