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ASSAULT, WOUNDING AND RELATED OFFENCES

LANA SAMLAL AND BRITTNII WOODS. ASSAULT, WOUNDING AND RELATED OFFENCES . define: assault.

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ASSAULT, WOUNDING AND RELATED OFFENCES

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  1. LANA SAMLAL AND BRITTNII WOODS ASSAULT, WOUNDING AND RELATED OFFENCES

  2. define: assault In general terms, personal violence offences may be differentiated according to the degree of harm inflicted upon the victimand the intention of the offender, ranging from common assault to those offences where the offender has the intention to inflict a particular type of harm, such as the intentional infliction of grievous bodily harm. There are also those offences where a heavier maximum penalty applies due to the occupational status of the victim, most notably assaults upon police officers.

  3. statutory framework

  4. crimes amendment act 2007 • Removed ‘maliciously’ from all offences in the Crimes Act • Replaces with ‘intentionally’ and/or ‘recklessly’ • Some increase in maximum penalties

  5. the de simoni principle • The principle that a sentencer cannot take into account as an aggravating factor a circumstance that would warrant conviction for a more serious offence (R v De Simoni (1981) 147 CLR 383) is an important consideration when sentencing for offences of personal violence — both in terms of the nature of the injury inflicted and the intention or mental element with which the offence is committed.

  6. factors relevant to assessment of the objective gravity of a personal violence offence • Extent and nature of the injuries • Degree of violence • Mens rea • Actus reus

  7. common assault • Section 61 Crimes Act 1900 • “Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years” • An assault may be established by proof of either physical contact or an act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence

  8. assault occasioning actual bodily harm • assault occasioning actual bodily harm attracts a maximum penalty of 5 years imprisonment, or 7 years if committed in company • Extent of the injury and degree of violence • The degree of violence involved in an assault is a material consideration in sentencing • R v Bloomfield (1988) 44 NSWLR 734 at 740. In that case, a single punch led to very severe injuries occasioned by the victim falling on his head. The sentencing judge properly gave considerable weight to the serious injuries occasioned by the assault, but erred in not considering the limited degree of violence involved. Likewise, an offence may be objectively serious due to the nature of the assault notwithstanding minor injuries: see R v Burke [2001] NSWCCA 47 at [17].

  9. recklessly causing GBH or wounding Section 35 sets out the following offences and maximum penalties when committed on or after 27 September 2007: • recklessly causing grievous bodily harm in company: 14 years • recklessly causing grievous bodily harm: 10 years • reckless wounding in company: 10 years • reckless wounding: 7 years Like the previous form of s 35, there are still two categories of offence depending upon the type of injury inflicted with corresponding higher maximum penalties.

  10. wound or inflict GBH with intent to do grevious bodily harm or resist arrest • Sets out the offences of wounding or inflicting grievous bodily harm with intent to cause grievous bodily harm and wounding or inflicting grievous bodily harm with intent to resist or prevent lawful arrest or detention. • The maximum penalty remains at 25 years imprisonment • InR v Williams (2004) 148 A Crim R 325, the fact that the injury consisted of a single superficial stab wound was taken into account in holding that the lengthy sentence imposed at first instance was not warranted. The wound was not life threatening and did not cause any lasting physical damage: at [54]. • The extent of the injuries may bring an offence into the very serious category. In R v Mitchell (2007) 177 A Crim R 94, the victim suffered a serious brain injury and was reduced to a vegetative state after a brutal attack. • Therefore the seriousness/nature of injury/assault can determine sentencing

  11. use weapon/threaten injury to resist lawful apprehension Section 33B provides it is an offence to use, attempt to use, threaten to use, or possess an offensive weapon or instrument, or threaten injury to any person or property with any of the following states of mind: • intent to commit an indictable offence • intent to prevent or hinder lawful apprehension or detention • intent to prevent or hinder investigation. • The maximum penalty is 12 years, or 15 years if committed in company.

  12. attempt to choke • It is an offence under s 37 Crimes Act 1900 to attempt to choke, suffocate or strangle a person with intent to commit an indictable offence. • The maximum penalty is 25 years imprisonment • InR v MW [2007] NSWCCA 291, it was recognised that there are “varying degrees of criminality in an offence contrary to s 37.” • “It must be remembered that the offence itself is defined as an ‘attempt to choke.’ When that attempt results in the victim becoming unconscious the offence is one of considerable gravity.” • Similarly in R v HQ [2003] NSWCCA 336, it was held that choking the victim to the point where she lapsed into semi-consciousness constituted a serious form of the offence

  13. administer intoxicating substance • Section 38 Crimes Act 1900 sets out an offence of administering an intoxicating substance with intent to commit an indictable offence. • “Intoxicating substance” includes alcohol, a narcotic drug or any other substance that affects a person’s senses or understanding is not expected to significantly affect the sentencing principles applicable to this offence. • The maximum penalty remains at 25 years imprisonment.

  14. assault against police officers Section 60 Crimes Act 1900 sets out further offences relating to the assault of police officers while in the execution of their duty. The offences are: • Assault, throw missile at, stalk, harass or intimidate — maximum penalty of 5 years: s 60(1) — maximum penalty 7 years if committed during public disorder: s 60(1A) • Assault occasioning actual bodily harm — maximum penalty of 7 years: s 60(2) — maximum penalty 9 years if committed during public disorder: s 60(2A) • Wound or inflict grievous bodily harm — maximum penalty 12 years: s 60(3) maximum penalty 14 years if committed during public disorder: s 60(3A).

  15. particular types of personal violence Domestic violence • Violence or physical abuse directed toward your spouse or domestic partner Child abuse • The physical, emotional or sexual mistreatment of children Prison officers • Assault against prison guards/officers Gang assaults - When a ‘gang’ bands together, in a brutal and cowardly pack attack with weapons, on a single unarmed and defenceless victim

  16. common aggravating factors under S21A and the common law • Premeditated or planned offence/contract violence • Unprovoked offence • Offence committed in company • Vulnerable victim • Commission of offence in victim’s home • Gratuitous cruelty • Substantial harm • Weapons • Knives etc. • Firearms • Syringes • Glassing, broken bottles etc.

  17. common mitigating factors Certain objective mitigating factors which may arise with relative frequency in the context of personal violence offences • Injury or harm not substantial • Provocation • Intoxication

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