Assaults

Introduction

Assaults can be committed in a variety of ways and can vary greatly in seriousness.  An Assault can range from a verbal threat to cause harm to someone to the infliction of very serious injuries.

This section sets out the various definitions which relate to Assaults, the various Assault-related offences and the maximum penalties which apply to Assault-related charges.  It also sets out what defences may be available to a person who has been charged with Assault.

All references to Acts in this section refer to the Criminal Code 1913 (WA) (the Code).  This Code is found in Appendix A of the Criminal Code Act Compilation Act 1913 (WA).

Definition of Assault

Pursuant to s.222 of the Code, Assault occurs when a person directly or indirectly:

  • Strikes;
  • Touches;
  • Moves; or
  • Otherwise applies force of any kind;

to the person of another without the other person’s consent.

An Assault also occurs where a person uses:

  • A bodily action or gesture; or
  • Threatens to apply force of any kind;

to another person without the other person’s consent and it appears to the other person that the person can actually or apparently commit an Assault upon them.  This means that an Assault can be committed without the person making any actual physical contact to the other person.

Pursuant to s.223, Assault is unlawful and a person who Assaults another commits an offence unless the act was authorised, justified or excused by law.

Circumstances of Aggravation

In certain prescribed circumstances an Assault is considered to have been committed in “circumstances of aggravation”.  An Assault committed in such circumstances carries an increased maximum sentence for the offence: refer to the “Penalties for Assault-Related Offences” table.

Pursuant to s.221 of the Code, an Assault is considered to involve circumstances of aggravation in circumstances where:

  • The offender is in a family or domestic relationship with the victim;
  • A child was present when the offence was committed;
  • The conduct of the offender in committing the offence constituted a breach of an order made or registered under the Restraining Orders Act 1997 (WA) or to which that Act applies; or
  • The victim is over 60 years old.

The effect of the presence of “circumstances of aggravation” is in sentencing for the offence.  A more severe penalty can be imposed when there are such circumstances.

Circumstances of Racial Aggravation

Pursuant to s.80I of the Code, “circumstances of racial aggravation” can have the same effect as “circumstances of aggravation” pursuant to s.221 of the Code.  “Circumstances of racial aggravation” occur where:

  • Immediately before or during or immediately after the commission of the offence, the offender demonstrated hostility towards the victim based, in whole or part, on the victim being a member of a racial group; or
  • The offence was motivated, in whole or part, by hostility towards persons as members of a racial group.

Bodily Harm

The term “bodily harm” is defined in s.1 of the Code and means any bodily injury which interferes with health or comfort.  It includes:

  • Causing or intending to cause a person to have a disease which interferes with health or comfort; and
  • If the person is a pregnant woman, causing, intending to cause or doing bodily harm to the woman’s unborn child.

Grievous Bodily Harm

The term “grievous bodily harm” is defined in s.1 of the Code and means any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health.  “Grievous bodily harm” includes:

  • Causing or intending to cause a person to have a serious disease; and
  • Causing or doing grievous bodily harm to a woman’s unborn child or causing the loss of a woman’s pregnancy.

Serious Disease

The term “serious disease” is defined in s.1 of the Code and means a disease of such a nature as to:

  • Endanger, or be likely to endanger, life; or
  • Cause, or be likely to cause, permanent injury to health.

Assault-related offences

Common Assault

Pursuant to s.313 of the Code, Common Assault is an Assault where the person assaulted does not receive “bodily harm” or “grievous bodily harm” It is considered to be the least severe Assault-related offence.

An example of a Common Assault would be where a person pushed another person without causing “bodily harm” of any kind.  A Common Assault can also occur where there is no physical contact.  A person can commit a Common Assault by threatening physical contact if the conduct causes the other person to think that they are in danger.

Common Assault is a “simple offence”.   A “simple offence” is an offence which can only be heard in the Magistrates Court.  The maximum penalty for this offence is set out in the “Penalties for Assault-Related Offences” table.

Assault Causing Bodily Harm

Pursuant to s.317 of the Code, this crime is committed when a person Assaults another person and that other person suffers “bodily harm” as a result of the Assault.  Examples of “bodily harm” include bruising, abrasions, ongoing pain and distress.

A person convicted of an Assault where the victim suffers “bodily harm” is guilty of a crime.

This charge will usually be dealt in the Magistrates Court but can also be heard in the District Court.  The maximum penalty for this crime is set out in the “Penalties for Assault-Related Offences” table.

Assault with Intent

Pursuant to s.317A a person commits a crime if that person Assaults another person with the intention of:

  • Committing or facilitating the commission of a crime;
  • Causing “grievous bodily harm” to that other person; or
  • Resisting or preventing the lawful arrest or detention of any person.

A person who is charged with this offence on the basis of having the intention to cause “grievous bodily harm” does not need to cause that harm.  It only needs to be proven that the person had the intention to cause such harm.

Other examples of ways that this offence can be committed are pushing a person off their bicycle to steal their bike, or a person assaulting a police officer in an attempt to help another person avoid being arrested.

The crime of Assault with Intent will usually be heard summarily in the Magistrates Court but can also be heard in the District Court.  The maximum penalty for this crime is set out in the “Penalties for Assault-Related Offences” table.

Serious Assault

Pursuant to s.318 of the Code, a person can commit the crime of Serious Assault if they Assault any of the following classes of people:

  • A public officer, or a person aiding a public officer, who is performing a function of their office or employment as a public officer;
  • Any person who is performing a function of a public nature, or a person aiding such a person, conferred on them by law or on account of their performance of such a function;
  • A driver, or person operating or in charge of:
    • A rail vehicle;
    • A ferry;
    • A taxi; or
    • A bus;
  • An ambulance officer who is performing their duties as an ambulance officer;
  • A person who is performing duties as a:
    • Fire and Emergency Services officer;
    • State Emergency Services officer;
    • Volunteer Marine Rescue Service officer; or
    • Member of a private or volunteer fire brigade;
  • A person who is working in a hospital;
  • A person who is providing a health service to the public;
  • A contract worker who is providing court security services or custodial services; or
  • A contract worker within the meaning of the Prisons Act 1981 (WA) who is performing functions under Part IIIA of that Act.

No “bodily harm” or “grievous bodily harm” is required for this crime to be committed.

If this crime is committed in “prescribed circumstances”, mandatory sentencing provisions apply which make it mandatory for the court to impose a sentence of imprisonment.  Refer to the heading “Mandatory Sentencing” for more information in relation to the what “prescribed circumstances” are and the implications on sentencing when this crime is committed in such circumstances.

The crime of Serious Assault can be heard in the Magistrates Court or District Court. The maximum penalty for this crime is set out in the “Penalties for Assault-Related Offences” table.

 

Assault of Aircraft Crew

Pursuant to s.318A of the Code, a person commits a crime if they:

  • Assault; or
  • Threaten with violence:

a member of the crew of an aircraft so as to interfere with the crew member’s performance of their duties  connected with the operation of the aircraft.  This crime can be committed against any crew member on the aircraft and is considered a serious crime.

There is no requirement to prove that the person assaulted suffered any “bodily harm” as a result of the Assault.

This crime cannot be heard in the Magistrates Court and must be heard in the District Court. The maximum penalty for this crime is set out in the “Penalties for Assault-Related Offences” table.

Disabling in Order to Commit and Indictable Offence

Pursuant to s.292 of the Code, it is a crime for a person to use violence of any kind with an intention to:

  • Commit or facilitate the commission of any indictable offence; or
  • Facilitate the flight of an offender after the commission or attempted commission of any indictable offence;

and by the use of that violence render or attempt to render the person incapable of resistance.  This is a more serious offence than “Assault with Intent” as the use of violence accompanies an intention to commit (or assist a person who has committed) an indictable offence.  An indicatable offence is any offence which can be heard in the District or Supreme Court regardless of whether or not it can also be dealt with in the Magistrates Court.

Such a crime cannot be heard summarily in the Magistrates Court and must be heard in the District Court.  The maximum penalty for this crime is set out in the “Penalties for Assault-Related Offences” table.

 

Stupefying in Order to Commit an Indictable Offence

Pursuant to s.293 of the Code, a person commits a crime if they administer or attempt to administer any stupefying or overpowering drug or thing to another person with the intention to:

  • Commit or facilitate the commission of any indictable offence; or
  • Facilitate the flight of an offender after the commission or attempted commission of any indictable offence.

This crime could be committed by giving a person a sleeping tablet without their knowledge with the intention of committing any indictable offence.  An indicatable offence is any offence which can be heard in the District or Supreme Court regardless of whether or not it can also be dealt with in the Magistrates Court.

Such a crime cannot be heard summarily in the Magistrates Court and must be heard in the District Court.  The maximum penalty for this crime is set out in the “Penalties for Assault-Related Offences” table.

Wounding and Similar Acts

Pursuant to s.301 of the Code, it is a crime if a person:

  • Unlawfully wounds another person; or
  • Unlawfully, and with intent to injure or annoy any person, causes any poison or other noxious substance to be administered to or taken by any person.

The definition of “wounding” is where, generally, there is a break in the skin which bleeds.  “Wounding” is not defined in the Code: this definition is derived from the common law. 

The term “injury” is also not specifically defined in the Code.  “Injure” means to cause any harm to a person: it is quite a broad term and can include things such as damage to dignity and reputation as well as the more common physical harm.

This crime will often be heard in the Magistrates Court but can also be heard in the District Court.  The maximum penalty for this crime is set out in the “Penalties for Assault-Related Offences” table.

 

Intended to Cause Grievous Bodily Harm or Prevent Arrest

Pursuant to s.294 of the Code, a person commits a crime if they have an intention to:

  • Maim;
  • Disfigure;
  • Disable any person;
  • To cause grievous bodily harm to any person; or
  • Resist or Prevent the lawful arrest or detention  of any person;

and the person;

  • Unlawfully wounds or does any grievous bodily harm to any person by any means;
  • Unlawfully attempts to strike any person with any kind of projectile;
  • Unlawfully causes any explosive substance to explode;
  • Sends or delivers to any person – or causes to be taken or received by any person – any explosive substance or other dangerous or noxious thing;
  • Puts any corrosive fluid (for example, acid) or any destructive or explosive substance in any place; or
    • Unlawfully throws any such fluid or substance at or on any person, or otherwise applies any such fluid or substance to the person of anyone; or
  • Does any act that is likely to result in a person having a “serious disease”.

For this crime to be committed the person must have one of the intentions listed above and then actually commit one of the listed actions.  As can be seen, a person does not need to cause “grievous bodily harm” to be guilty of this offence.

This crime cannot be heard in the Magistrates Court and must be heard in the District Court.  The maximum penalty for this crime is set out in the “Penalties for Assault-Related Offences” table.  If this crime is committed in relation to an “aggravated home burglary”, mandatory sentencing provisions may apply which require a court to impose a sentence of imprisonment.  Refer to the section on Mandatory Sentencing for more details on this.

Grievous Bodily Harm

Pursuant to s.297 of the Code, this crime can be committed in various ways as detailed below.  The sentencing provisions vary according to the circumstances of the crime. 

This crime cannot be heard summarily in the Magistrates Court and must be heard in the District Court.  The maximum penalty for this crime is set out in the “Penalties for Assault-Related Offences” table.  The maximum penalty will vary according to how the crime is committed.  Mandatory sentencing provisions apply in some circumstances as well.  If this crime is committed in “prescribed circumstances” or in connection with an Aggravated Home Burglary a term of imprisonment must be imposed by the court.  Refer to Mandatory Sentencing for more detail on this.

s.297(1) of the Code – Grievous Bodily Harm Generally

It is a crime if a person unlawfully does grievous bodily harm to another person.

s.297(2) of the Code – Grievous Bodily Harm Involving Theft of a Motor Vehicle

This provision involves “grievous bodily harm” being done to another person in a course of conduct which involved the stealing of a motor vehicle.

s.297(3) of the Code – Grievous Bodily Harm Committed in Circumstances of Aggravation

This provision applies when the “grievous bodily harm” is done in “circumstances of aggravation”

s.297(4) of the Code – Grievous Bodily Harm Done to Specified Persons

The crime of doing grievous bodily harm pursuant to this provision is committed when the person to whom the harm done is:

  • A public officer who is performing a function of their office or employment as a public officer;
  • Any person who is performing a function of a public nature conferred on them by law or on account of their performance of such a function;
  • A driver, or person operating of in charge of:
    • A rail vehicle;
    • A ferry;
    • A taxi; or
    • A bus;
  • An ambulance officer who is performing their duties as an ambulance officer;
  • A person who is performing duties as a:
    • Fire and Emergency Services officer;
    • State Emergency Services officer;
    • Volunteer Marine Rescue Service officer; or
    • Member of a private or volunteer fire brigade;
  • A person who is working in a hospital;
  • A person who is providing a health service to the public;
  • A contract worker who is providing court security services or custodial services; or
  • A contract worker within the meaning of the Prisons Act 1981 (WA) who is performing functions under Part IIIA of that Act.

Penalties for Assault-Related Offences

OffenceMaximum Summary Jurisdiction PenaltyMaximum Summary Jurisdiction Penalty Where the Offence Involved Racial Aggravation or Other Aggravating CircumstancesMaximum PenaltyMaximum Penalty Where the Offence Involved Racial Aggravation or Other Aggravating Circumstances
s.313 Common AssaultFine – $18,000.00 and Imprisonment for 18 monthsFine – $36,000.00 and Imprisonment for 3 yearsNot applicableNot applicable
s.317 Assault Causing Bodily HarmFine – $24,000.00 and Imprisonment for 2 yearsFine – $36,000.00 and Imprisonment for 3 yearsImprisonment for 5 yearsImprisonment for 7 years
s.317A Assault with intentFine – $24,000.00 and Imprisonment for 2 yearsFine – $36,000.00 and Imprisonment for 3 yearsImprisonment for 5 yearsImprisonment for 7 years
s.318 Serious Assault (NOTE: refer to mandatory sentencing below)       If at the time of, or immediately before or after the Assault is armed with a dangerous or offensive weapon OR was in company with another person/sFine – $36,000.00 and Imprisonment for 3 years           Not applicable      Not applicable                 Not applicable          Imprisonment for 7 years               Imprisonment for 10 yearsNot applicable                 Not applicable
s.318A Assault of Aircraft CrewNot applicableNot applicableImprisonment for 14 yearsNot applicable
s.292 Disabling in Order to Commit and Indictable OffenceNot applicableNot applicableImprisonment for 20 yearsNot applicable
s.293 Stupefying in Order to Commit an Indictable Offence  Not applicableNot applicableImprisonment for 20 yearsNot applicable
s.301 Wounding and other acts    Fine – $24,000.00 and/ or Imprisonment for 2 yearsFine -$36,000.00 and/ or Imprisonment for 3 years – (does not apply to racial aggravation only)Imprisonment for 5 yearsImprisonment for 7 years – (does not apply to racial aggravation only)
s.294 Act Intended to Cause Grievous Bodily Harm or Prevent Arrest   (NOTE: refer to mandatory sentencing below)  Not applicableNot applicableImprisonment for 20 yearsNot applicable
s.297(1) Grievous Bodily Harm   s.297(2)     s.297(3)     s.297(4)   (NOTE: refer to mandatory sentencing below)  Not applicable       Not applicable     Not applicable     Not applicableNot applicable       Not applicable     Not applicable     Not applicableImprisonment for 10 years     Imprisonment for 14 years   Imprisonment for 14 years   Imprisonment for 14 yearsNot applicable       Not applicable     Not applicable     Not applicable

Mandatory Sentencing

The following offences attract “mandatory sentencing” principles.  “Mandatory sentencing” removes, to some extent, discretion in the sentencing process.  When someone is convicted of the following offences in the circumstances stated, the Code makes it mandatory that a term of imprisonment be imposed on the person being sentenced.  If a court were to sentence a person without imposing the stated term of imprisonment it would be making at error at law.

s.318 Serious Assault

A person who is convicted of Serious Assault must be sentenced to a term of imprisonment if the Assault occurred in “prescribed circumstances” pursuant to s.318(5) of the Code

“Prescribed circumstances” are when the person assaulted suffers bodily harm in circumstances where the crime involves the Assault of:

  • A public officer who is performing a function of their office or employment as a public officer; or
  • Any person who is performing a function of a public nature conferred on them by law or on account of their performance of such a function;

and that officer or person is a:

  • Police officer;
  • Prison officer as defined in the Prisons Act 1981 section 3(1);
  • Person appointed under the Young Offenders Act 1994 section 11(1a)(a); or
  • Security officer as defined in the Public Transport Authority Act 2003 section 3;

A person, when convicted of Serious Assault in “prescribed circumstances”, must be sentenced to a term of imprisonment which cannot be suspended.  The minimum term of imprisonment is:

  • When the convicted person is 16 years old but less than 18 years old – 3 months imprisonment or detention as defined in the Young Offenders Act 1994 (WA) at s.3; or
  • When the convicted person is 18 years old or above:
    • And at the time of, or immediately before or after the Assault is armed with a dangerous or offensive weapon or was in company with another person/s – 9 months imprisonment; or
    • In any other prescribed circumstances – 6 months imprisonment.

s.294 Act Intended to Cause Grievous Bodily Harm or Prevent Arrest

Mandatory sentencing applies to a person who is convicted of committing this crime when it involves a course of conduct which constitutes an Aggravated Home Burglary.  An Aggravated Home Burglary is a Burglary which is committed in “circumstances of aggravation” as defined in s.400.  Such circumstances occur where:

  • Immediately before or after, or during, the Burglary the offender:
    • Is or pretends to be armed with a dangerous or offensive weapon;
    • Is or pretends to be in possession of an explosive substance;
    • Is in company with another person or other persons;
    • Threatens to kill or injure any person; or
    • Detains any person (within the meaning of s.332(1) of the Code);

or

  • Immediately before the commission of the offence the person knew – or ought to have known – that there was another person (other than a co-offender) in the place.

An adult who is convicted of this crime in these circumstances must be sentenced to imprisonment for at least 75% of the applicable maximum term of imprisonment.  Presently, the maximum applicable term of imprisonment is 20 years; therefore, a person convicted of this offence which involves the course of conduct described must be imprisoned for at least 15 years. 

When the convicted person is less than 18 years old they must be sentenced to imprisonment – or detention as defined in the Young Offenders Act 1994 (WA) – for at least 3 years.  This term of imprisonment or detention cannot be suspended.

s.297(5) Grievous Bodily Harm

Involving an Aggravated Home Burglary

If this crime is committed by an adult in a course of conduct which constitutes an Aggravated Home Burglary, the person must be sentenced to a term of imprisonment.  This term of imprisonment is currently:

If the person convicted is under the age of 18 years, the term of imprisonment – or detention as defined in the Young Offenders Act 1994 (WA) – must be at least 3 years and that term of imprisonment cannot be suspended.

Prescribed Circumstances

If this crime is committed in “prescribed circumstances”, the person who commits the crime must be imprisoned for at least 12 months and that imprisonment cannot be suspended.  Prescribed circumstances for this provision exist when the crime involves the Assault of:

  • A public officer who is performing a function of their office or employment as a public officer; or
  • Any person who is performing a function of a public nature conferred on them by law or on account of their performance of such a function;

and that officer or person is a:

  • Police officer;
  • Prison officer as defined in the Prisons Act 1981 section 3(1);
  • Person appointed under the Young Offenders Act 1994 section 11(1a)(a); or
  • Security officer as defined in the Public Transport Authority Act 2003 section 3.

If the person who committed the crime in prescribed circumstances is under the age of 18 years, the term of imprisonment – or detention as defined in the Young Offenders Act 1994 (WA) – which must be imposed is 3 months.

Defences to Assault-Related Offences

There are a number of defences which may be relied upon for a person charged with an Assault-related offence.  These include:

  • Consent;
  • Accident;
  • Mistake of Fact
  • Intoxication;
  • Duress;
  • Lawful authority to do such things as:
    • Arrest and detain a person;
    • Prevent a person from avoiding arrest;
    • Prevent a person from escaping custody;
  • Supressing a riot;
  • Preventing violence by a mentally impaired person;
  • Preventing a home invasion;
  • Protecting property;
  • Removing trespassers from land;
  • Using force to discipline children;
  • Maintaining discipline on a ship or aircraft; and
  • Providing medical treatment in some circumstances.

Refer to the heading “Defences” for a full explanation of defences that may be available.

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