Updated: Jun 7
Taking a closer look at the elements, defences & penalties
The seriousness of an allegation of an assault offence will depend on many factors:
- whether an injury resulted from the assault, and the severity of the assault.
- characteristics of victim (gender, age, underlying frailties, whether employed at the time of the alleged assault as an emergency worker)
- whether a weapon was used;
- whether unprovoked attack or whether an aspect of self-defence arises from the circumstances of the incident.
- whether the assault was in the company of others
Our assault laws classify the following offences on a scale of rising severity:
Common Assault (Section 23 of the Summary Offences Act 1966 (Vic))
Aggravated Assault (Section 24 of the Summary Offences Act 1966 (Vic))
Recklessly cause injury (Section 18 of the Crimes Act 1958 (Vic))
Intentionally cause injury (Section 18 of the Crimes Act 1958 (Vic))
Recklessly cause serious injury (Section 17 of the Crimes Act 1958 (Vic))
Intentionally cause serious injury (Section 16 of the Crimes Act 1958 (Vic))
Recklessly cause serious injury in circumstances of gross violence (Section 15B of the Crimes Act 1958 (Vic)
Intentionally cause serious injury in circumstances of gross violence (Section 15A of the Crimes Act 1958 (Vic)
All assault related offences alleging a serious injury are strict indictable offences must be heard and determined in the County Court of Victoria.
Offences which do not allege a serious injury may be heard and determined in the Magistrates' Court.
Some key statutory definitions relevant to all assault offences prosecuted under the Crimes Act
An 'injury' is defined under the Act as either a physical injury or harm to mental health.
A '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.
A 'serious injury' is defined as:
(i) endangers life; or
(ii) is substantial and protracted
The prosecution must prove the element of injury for an assault offence prosecuted under the Act. This is usually, but not exclusively established based on independent evidence from a medical practitioner. In some cases, an injury will be apparent by photos taken shortly after the alleged incident that gives rise to the assault allegation.
The prosecution must also prove the mental element of the offence for all 'injury offences'
It is not sufficient for the prosecution to a complainant suffered an injury as the result of an alleged assault, the mens rea (intention to commit the offence) must also be proven.
Culpability for an assault causing injury (or serious injury) is predicated under the Act based on conduct that is either reckless or intentional.
The terms reckless or intention are not defined under the Act, and so the relevant law is derived from precedent.
In R v Nurri  VR 641, the Court stated that conduct is reckless if "there is foresight on the part of an accused of the probable consequences of his actions and he displays indifference as to whether or not those consequences occur".
In another earlier case by the Victorian Supreme Court it was observed: "it is sufficient that the accused has acted with the requisite awareness or foresight of the consequence of causing some harm to some person: R v. Lovett  VR 488.
The case of Westaway v. R (1991) 52 A Crim R establishes that an accused acts intentionally (for the purposes of causing an injury or a serious injury) if he or she sets out to cause the injury that the complainant did in fact receive.
R v Mowatt  1 QB 421 is authority for the principle that intention may be inferred from the circumstances of the offence, and the actions of the offender: "an intention is capable of being established by the prosecution if the evidence is such that "any ordinary person would have realised was likely to cause some physical harm to the victim, an intention to cause injury (if not serious injury) can be inferred and it is necessary for the accused to lead some evidence that he did not realise that the act might cause some physical harm".
The gravity of the offending also depends upon the characteristics of the alleged victim
Assaults resulting in injury to emergency workers on duty carry mandatory imprisonment, unless a special reason exists (see section 10AA(1) of the Sentencing Act 1991 (Vic)).
For the definition of 'emergency worker' refer to the statutory definition under section 10AA(8) of the Sentencing act 1991 (Vic).
Other assault offences also prescribe mandatory imprisonment under the Sentencing Act
The penalty for Intentionally or Recklessly Causing Serious Injury in circumstances of Gross Violence will require mandatory imprisonment unless the Court (County or Supreme) finds a special reason exists. Section 10 of the Sentencing Act 1991 (Vic) sets out the non-parole periods that must be served in the absence of a special reason.
The law also prescribes mandatory imprisonment for assaults (single punch) that result in the death of another (Section 9C of the Sentencing Act 1991 (Vic).
Which Court will hear and determine an assault offence?
With the exception of Recklessly/Intentionally Cause Injury (section 18 of the Crimes Act 1958 (Vic) and Common/Aggravated Assault (Sections 23 & 24 of the Summary Offences Act 1966 (Vic) all remaining offences must be heard in the County or Supreme Court (usually the County Court).
Some serious indictable assault offences can influence the decision on whether an accused is released from bail.
An allegation of Recklessly or Seriously causing serious injury in circumstances of gross violence are offences which require a strict bail test, and will influence an accused's right to be released on bail. To learn more read our blog.
What are the sentencing outcomes for Assault offences heard in the Magistrates Court?
The sentence imposed for any assault related offence heard in the Magistrates' Court will turn upon factors relevant to the offence, and the alleged offender. However, as a guide for the period 30 June 2016 - 1 July 2019, the Sentencing Advisory Council has published the following data pertaining to sentencing outcomes.
Intentionally cause injury
Adjourned undertaking/dismissal - 7.6%
Fine - 9.0%
Community Correction Order - 33.4%
Imprisonment - 48.3%
Recklessly cause injury
Adjourned undertaking/dismissal - 17.4%
Fine - 18.8%
Community Correction Order - 32.1%
Imprisonment - 31.1%
Adjourned undertaking/dismissal - 31.3%
Fine - 22.2%
Community Correction Order - 22.8%
Imprisonment - 23.3%
The Defences available to an assault allegation
Frequently, self-defence is argued in response to an assault offence. In addition, there may be a factual dispute as to the detail and circumstances of any of the elements the prosecution must prove beyond reasonable doubt. Thus a factual dispute may arise as to the identity of the alleged offender; whether their actions can be established as being intentional or reckless; whether an injury occurred; and if so, whether the injury was serious.
- mental impairment;
Get advice, prepare early
Get expert advice and representation for any assault related offence. Early preparation is critical to prepare early. Call our office on (03) 9668 7600 for a free case assessment.