Have you been charged with assault of an emergency worker or a police officer?
If you have been charged with an offence related to assaulting an emergency worker, police officer or related individual, contact an experienced assault lawyer. There are a range of offences relevant to an assault on an emergency worker or police officer. Offending conduct that does not result in injury may constitute a summary offence with a non-custodial sentence. In contrast, conduct that results in injury or serious injury constitutes a serious offence, likely attracting a mandatory minimum term of imprisonment.
Depending on the nature of the offending conduct against an emergency worker or protected official (including a person lawfully assisting), several charges could apply, including:
Section 51(2)-(4) of the Summary Offences Act 1966 prohibits someone from assaulting, obstructing, hindering or delaying on-duty emergency workers, custodial officers, youth justice custodial officers, staff of local authorities, or a person lawfully assisting;
Section 31(1)(b)-(c) of the Crimes Act 1958, which makes it an offence to assault or threaten to assault, resist or intentionally obstruct an on-duty emergency worker, custodial officer, or youth justice custodial officer, or a person lawfully assisting;
Section 18 of the Crimes Act 1958, which makes it an offence to recklessly or intentionally cause injury, including to an on-duty emergency worker, custodial officer, or youth justice custodial officer;
Section 17 of the Crimes Act 1958, which makes it an offence to recklessly cause serious injury, including to an on-duty emergency worker, custodial officer, or youth justice custodial officer;
Section 16 of the Crimes Act 1958 makes it an offence to intentionally cause serious injury, including to an on-duty emergency worker, custodial officer, or youth justice custodial officer;
Section 15A of the Crimes Act 1958, which makes it an offence to intentionally cause serious injury in circumstances of gross violence, including to an on-duty emergency worker, custodial officer, or youth justice custodial officer;
Section 15B of the Crimes Act 1958, which makes it an offence to recklessly cause serious injury in circumstances of gross violence, including to an on-duty emergency worker, custodial officer, or youth justice custodial officer;
Common law assault in certain circumstances, the penalty for which is found in section 320A of the Crimes Act 1958, which makes it an offence to assault a police officer or protective services officer with an offensive weapon, firearm or imitation available.
On duty emergency workers and custodial officers
Before considering any of these offences, it is necessary to consider who must be a victim for any of these offences to apply. As highlighted above, these offences relate to any of the following: an on-duty emergency worker, custodial officer, or youth justice custodial officer.
Sections 10AA(8)-(11) of the Sentencing Act 1991 (Vic) defines these roles:
Emergency Workers on Duty: This is a broad category and captures emergency response workers of all types, including police officers or protective officers, paramedics or other ambulance workers, fire-fighters (whether full-time, part-time, or volunteer), and anyone else involved in assisting in emergency situations as outlined in the definition under the Sentencing Act 1991. For emergency workers to be on duty, they must either be administrating care (as in the case of paramedics) or exercising a power conferred on them under the relevant legislation.
Custodial Officer on Duty: This refers to any on-duty prison officer or police custody officer authorised under the Corrections Act 1986 and the Victoria Police Act 2013, respectively (i.e. a police custody or prison officer currently working, exercising powers conferred onto them under the respective legislation).
Youth Justice Custodial Officer on Duty: This refers to those who work in a remand centre or youth justice centre whose duties pertain to detainees of the centres exercising powers validly conferred to them.
A person lawfully assisting
Sections 51(3)-(4) of the Summary Offences Act 1966 and section 31(1)(c) of the Crimes Act 1958 also extend the reach of the offences to those ‘lawfully assisting’ any of the above listed protected officials, as well as to on-duty staff of local authorities in the case of the former.
For each of these offences, the prosecution must therefore first establish that the victim of the assault, or the person who suffered injury or serious injury, was one of these people as the offence requires. This must be proved beyond reasonable doubt.
Elements of assault offences against emergency workers
Once it has been established beyond reasonable doubt that the victim was one of the individuals identified above, the prosecution must then prove a number of elements similarly beyond reasonable doubt. The required elements differ depending on the offence.
Assault (Summary Offences Act 1966 s 51(2)-(4) OR Crimes Act 1958 s 31(1)(b)-(c))
Please see our article on assault here. In summary, the prosecution will need to prove beyond a reasonable doubt either that:
-
the accused intentionally or recklessly applied force to another person; or
-
the accused intentionally or recklessly caused another person to apprehend that the force would be applied to them.
For these offences to apply, it must be proved beyond reasonable doubt that the victim was in one of the roles as a protected official. For example, if the victim was an emergency worker on duty performing a task connected to their functions as an emergency worker.
As it pertains to sections 31(1)(b)-(c) of the Crimes Act 1958, the accused must also know or be reckless to the victim being in a role as a protected official (e.g. the accused, in assaulting a police officer, must know or ought to know that they are a police officer). This requirement does not apply to sections 31(2)-(4) of the Crimes Act 1958.
It is worth noting that the offences detailed under sections 51(2)-(4) of the Summary Offences Act 1966 and sections 31(1)(b)-(c) of the Crimes Act 1958 relate to more than just assault, and extend to obstruction, hindrance, delay, or resistance.
Intentionally or Recklessly Causing Injury (Crimes Act 1958 s 18)
Please see our article on intentionally causing injury here, and on recklessly causing injury here. In summary, the prosecution will need to prove beyond a reasonable doubt that:
the alleged victim suffered an “injury”;
the accused caused the alleged victim’s injury;
the accused intended to cause or was reckless to causing injury; and
the accused acted without lawful justification or excuse.
Intentionally or Recklessly Causing Serious Injury (Crimes Act 1958 s 16 and s 17)
Please see our article on intentionally causing serious injury here, and on recklessly causing serious injury here. In summary, the prosecution will need to prove beyond a reasonable doubt that:
the alleged victim suffered a “serious injury”;
the accused caused the alleged victim’s serious injury;
the accused intended to cause or was reckless to causing serious injury; and
the accused acted without lawful justification or excuse.
Intentionally or Recklessly Causing Serious Injury in Circumstances of Gross Violence (Crimes Act 1958 s 15A and s 15B)
Please see our pages on intentionally causing serious injury in circumstances of gross violence and on recklessly causing serious injury in circumstances of gross violence for more.
In summary, the prosecution will need to prove beyond a reasonable doubt that:
the alleged victim suffered a “serious injury”;
the accused caused the alleged victim’s serious injury;
the accused intended to cause or was reckless to causing serious injury;
the injury was caused in circumstances of “gross violence“; and
the accused acted without lawful justification or excuse.
These offences are an aggravated form of intentionally and recklessly causing serious injury (ss 17 and 18), with the additional element that the injury was caused in circumstances of ‘gross violence’.
Common law assault in certain circumstances (penalties in Crimes Act 1958 s 320A)
To prove the common law offence of assault against an officer with an offensive weapon, a firearm or imitation firearm, the prosecution will need to prove beyond reasonable doubt that:
- at the time of the assault, the the offender had an offensive weapon, firearm or imitation firearm readily available; and
- the victim was a police officer on duty or a protective services officer on duty; and
- the offender knew or was reckless as to whether the victim was a police officer or a protective services officer; and
- the offender—
- enabled the victim to see the offensive weapon, firearm or imitation firearm or of its general shape; or
- told or suggested to the victim that the offender had an offensive weapon, firearm or imitation firearm readily available; and
- the offender—
- knew that engaging in the conduct would be likely to arouse apprehension or fear; or
- in all the particular circumstances, the person ought to have known that engaging in the conduct would be likely to arouse that apprehension or fear.
For the purposes of this offence, under section 320A(3), a person has an offensive weapon, a firearm or an imitation firearm readily available if the offensive weapon, the firearm or the imitation firearm is:
- in the person’s hand; or
- on the person’s body; or
- within the person’s reach.
Offensive weapon in this context means any article (other than a firearm or an imitation firearm) made or adapted for use for causing injury to or incapacitating a person, or which at the time of an assault the person having it with them intends or threatens to use for such a purpose (per definition in s 320A).
Penalties and mandatory imprisonment for assault of emergency workers
Given the variety of offences, the penalty you are likely to receive will vary with the offence you are found guilty of. As such, this article will break down the penalties you might be liable for, outlining the offences for which mandatory penalties apply.
Assault (Summary Offences Act 1966 s 51(2)-(4) OR Crimes Act 1958 s 31(1)(b)-(c))
Sections 51(2)-(4) of the Summary Offences Act 1966 detail that anyone found guilty of these offences could be liable for one of the following penalties:
A fine of 60 penalty units ($11,095.20 for the period of July 2022 to June 2023); or
A term of imprisonment of 6 months.
Additionally, pursuant to subsection (5), the court may also order a sum be paid to the individual sufficient to covering any damages suffered as a result of the offence.
Sections 31(1)(b)-(c) of the Crimes Act 1958 detail that anyone found guilty of an offence under this section is liable to penalty of 5 years’ imprisonment maximum.
Intentionally or Recklessly Causing Injury (Crimes Act 1958 s 18)
Section 18 of the Crimes Act 1958 details that anyone found guilty of this offence could be liable for a maximum term of imprisonment of 10 years where the injury was caused intentionally or 5 years when it was caused recklessly.
Mandatory penalties for intentionally or recklessly causing injury
An offence under s 18 is a Category 1 offence if the victim was an on duty emergency worker, a custodial officer or a youth justice custodial worker and the offender knew or was reckless as to whether the victim was such a person. Accordingly, the court must impose a custodial order (or other specified order) for this offence (Sentencing Act 1991 s 5(2G) and (2GA)).
Furthermore, section 10AA(4) requires that the court impose a minimum term of imprisonment of 6 months on the accused. In imposing this sentence, the court must be satisfied that the accused knew or was reckless to the victim being in one of the roles established previously (e.g. the accused, in injuring an emergency worker, knew or ought to have known that they were an emergency worker) and that a special reason (as outlined under section 10A) does not apply.
The statutory minimum imprisonment or non-parole period does not apply if the offender’s involvement was only minor or the offender was less than 18 years of age at the time of the offence (Sentencing Act 1991 ss 10AA(6)(a) and (b)).
Intentionally or Recklessly Causing Serious Injury (Crimes Act 1958 ss 16 and 17)
Sections 16 and 17 of the Crimes Act 1958 detail that anyone found guilty of these offences could be liable for a maximum term of imprisonment of 20 years when the serious injury was caused intentionally or 15 years when it was caused recklessly.
Mandatory penalty for intentionally or recklessly causing serious injury
Offences under ss 16 and 17 are category 1 offences if the victim was an on duty emergency worker, a custodial officer or a youth justice custodial worker and the offender knew or was reckless as to whether the victim was such a person. Accordingly, the court must impose a custodial order (or other specified order) for these offences (Sentencing Act 1991 s 5(2G) and (2GA)).
Furthermore, section 10AA(1) requires that the court impose a minimum non-parole period of 3 years (where the serious injury was caused intentionally) and 2 years (where the serious injury was caused recklessly) on the accused. In imposing this sentence, the court must be satisfied that the accused knew or was reckless to the victim being in one of the roles established previously (e.g. the accused, in injuring an emergency worker, knew or ought to have known that they were an emergency worker) and that a special reason (as outlined under section 10A) does not apply.
The statutory minimum imprisonment or non-parole period does not apply if the offender’s involvement was only minor or the offender was less than 18 years of age at the time of the offence (Sentencing Act 1991 ss 10AA(6)(a) and (b)).
Intentionally or Recklessly Causing Serious Injury in Circumstances of Gross Violence (Crimes Act 1958 ss 15A and 15B)
Sections 15A and 15B of the Crimes Act 1958 detail that anyone found guilty of these offences could be liable for a maximum term of imprisonment of 20 years when the serious injury was caused intentionally or 15 years when it was caused recklessly.
Mandatory penalty for intentionally or recklessly causing serious injury in circumstances of gross violence
Offences against sections 15A and 15B are category 1 offences, including if the victim was an on duty emergency worker, a custodial officer or a youth justice custodial worker and the offender knew or was reckless as to whether the victim was such a person. Accordingly, the court must impose a custodial order (or other specified order) for these offences (Sentencing Act 1991 s 5(2G) and (2GA)).
Furthermore, section 10AA(1) requires that the court impose a minimum non-parole period of 5 years on the accused. In imposing this sentence, the court must be satisfied that the accused knew or was reckless to the victim being in one of the roles established previously (e.g. the accused, in injuring an emergency worker, knew or ought to have known that they were an emergency worker) and that a special reason (as outlined under section 10A) does not apply.
The statutory minimum imprisonment or non-parole period does not apply if the offender’s involvement was only minor or the offender was less than 18 years of age at the time of the offence (Sentencing Act 1991 ss 10AA(6)(a) and (b)).
See ‘Mandatory Sentencing for Violence Offences Against Protected Officials’ for more.
What you should do next
Due to the severity of the sentences of some of these offences and the variability in the number of offences that may apply, you must seek legal advice as soon as possible to ensure you have the best defence and can better understand the options available to you. Our criminal defence lawyers can walk you through each offence in more detail and help you determine the best course of action for your particular case.
We will fight for your case, and, depending on the circumstances, we will challenge any alleged injury or serious injury caused. Just because there is some form of injury made out, does not mean that the test of ‘injury‘ or ‘serious injury‘ is satisfied for the purposes of the more serious offences attracting a mandatory custodial sentence. We may be able to negotiate a reduction of charges to avoid a mandatory sentence or, if there is no way around it, achieve the minimum sentence available.
