What is aggravated assault?
In Victoria, there are five types of aggravated assaults:
- Assault with a weapon (2 year maximum or 240 PU);
- Assault by kicking (2 year maximum or 240 PU);
- Assault in company with others (12 month maximum or 120 PU);
- Assault of a child who is 14 or under(6 month maximum or 60 PU) and
- Assault of a female (6 month maximum or 60 PU).
All five types of aggravated assault are found in section 24 of the Summary Offences Act 1966 (Vic). An aggravated assault is a common assault in circumstances of aggravation. These aggravating circumstances increase the seriousness and the maximum penalty of a common assault. An accused person can be found guilty of a common assault or an aggravated assault, but they cannot be found guilty of both charges stemming from the same set of facts.
Elements of the offence
There are five kinds of aggravated assault under the Summary Offences Act 1966 (Vic) s24. To prove an aggravated assault, the prosecution must prove that a common assault occurred in one of the following circumstances, this must be proven beyond a reasonable doubt:
- The accused was ‘in company’ with any other person or persons and assaulted another person; or
- The accused assaulted another person by kicking or by using any weapon; or
- The accused committed an assault against a male child(14 or under) or a female that it cannot (in the opinion of the court) sufficiently be punished under section 23 for common assault.
Assault with a weapon
Assault with a weapon or instrument is an aggravated assault that occurs where one person uses a weapon or instrument, to unlawfully make contact with another person, or to instil fear or apprehension in that person, regarding the potential contact with that weapon or instrument. Assault with a weapon is covered under the same section as aggravated assault under subsection (2), see s24(2) Summary Offences Act. Examples of assault with a weapon include;
- Assault with a knife;
- Assault with a blunt object such as a baseball bat, or rolling pin;
- A bottle or a heavy tool
- Metal dish rack has even been found to satisfy the section.
What is classified as a weapon or instrument is very broad. To determine what is considered a weapon, we can look to the definitions section of the Controlled Weapons Act 1990. To determine what is an instrument for the purposes of this section, it is not defined. The general rule, the less innocuous the instrument, the more chance you will have in avoiding this charge, but the phrase in the section, “weapon or instrument whatsoever”, seems to leave the interpretation of what will satisfy this element, as very broad.
The Maximum Penalty for Assault with a Weapon in Victoria
- 2 years imprisonment or a fine not exceeding 240 penalty units
Assault by kicking
Assault by kicking is an aggravated assault where one person kicks another person with the intention of kicking them or with the intention of making them fear they will be kicked. Assault by kicking is also covered under s24(2) of the Summary Offences Act and is one type of Aggravated Assault.
If you are facing this charge, the charge particulars will refer to “assault by kicking”. It should be noted that the courts take a very dim very of assault by kicking, particularly when it is alleged the victim was on the ground and the kicking alleged to be to the head. The situation gets worse when there is more than one person doing the kicking, making it an assault in company and an assault by kicking. This is a very serious type of aggravated assault.
There are many things a experienced assault lawyer can do with a case like this, if you are facing an aggravated assault by kicking, you should contact our office today.
Maximum Penalty Assault by Kicking
Unlike common assault, assault by kicking attracts a much larger maximum penalty. A person found guilty of assault by kicking is liable to a maximum penalty of two years imprisonment as opposed to 3 months regarding a common assault.
Assault in company
Assault in company is an aggravated assault, committed in the company of other individuals. This type of assault, known as “assault in company,” reflects the increased potential for harm when multiple perpetrators are involved. The collective dynamics of a group can encourage individuals and escalate the level of violence, making the assault more dangerous and traumatic for the victim. The law acknowledges the increased fear experienced by the victim in such scenarios, which can amplify their sense of vulnerability and the potential for psychological trauma.
Consequently, the law imposes a more severe penalty for this type of assault to deter group-related violence and ensure accountability among all participating offenders.
Maximum Penalty Assault in Company
Individuals found guilty of assault in company are subject to a maximum penalty of imprisonment for up to twelve months or a maximum fine of 120 penalty units, underscoring the seriousness with which the law treats assaults involving multiple assailants.
Aggravated assault of a female
Assaults committed against females, are considered aggravated assaults. When the court deems the offence too severe to be sufficiently punished under the charge of common assault, a magistrate has the power to sentence under section 24(1)(a) of the Summary Offences Act 1966.
Maximum Penalty Aggravated Assault of Female:
Offenders found guilty of this aggravated form of assault may face up to six months imprisonment or a maximum fine of 60 penalty units.
Aggravated assault of a child under 14
An assault on a child 14 or under is considered an aggravated assault. The law specifically addresses forms of assault against young children, especially those 14 or under in section 24(1)(a) of the Summary Offences Act 1966. This provision addresses assaults on male children that do no exceed 14 years of age, and the section opens up the sentencing discretion for the magistrate hearing the matter where the nature of the assault is so severe that it cannot be adequately addressed under common assault penalties. The legislation recognises the increased vulnerability of children and the severity of assaults that inflict physical or psychological harm on minors. Given their inability to protect themselves and the potential long-term impacts of such trauma, the courts are empowered to impose harsher penalties.
Maximum Penalty Aggravated Assault on Male child
Offenders found guilty of this aggravated form of assault may face up to six months imprisonment or a maximum fine of 60 penalty units.
Assault vs aggravated assault
In Victoria, the distinctions between aggravated assault under section 24 and common assault (also known as unlawful assault) under section 23 of the Summary Offences Act 1966, as well as assault under section 31 of the Crimes Act 1958, are crucial for understanding the legal consequences of these offences.
Common assault, typically referred to as unlawful assault, involves the application of force, or the threat of force, where no actual injury needs to be inflicted.
Aggravated assault, however, requires the presence of circumstances that aggravate the severity of the offence and increase the maximum penalty.
Both these offences are addressed under the Summary Offences Act 1966 and are generally considered less severe than the kinds of assault specified under section 31 of the Crimes Act 1958, which deals with more serious offences involving the direct or indirect application or force in certain circumstances.
Assault under the Crimes Act 1958 is an indictable offence and can lead to more significant penalties, reflecting its severity in cases where the accused:
- assaults or threatens to assault another person with intent to commit an indictable offence; or
- assaults or threatens to assault, resists or intentionally obstructs an emergency worker on duty or a youth justice custodial worker on duty, or a custodial officer on duty, knowing or being reckless as to whether the person was an emergency worker or a youth justice custodial worker or a custodial officer; or
- assaults or threatens to assault, resists or intentionally obstructs a person lawfully assisting an emergency worker on duty or a youth justice custodial worker on duty, or a custodial officer on duty, knowing or being reckless as to whether the person was assisting an emergency worker or a youth justice custodial worker or a custodial officer; or
- assaults or threatens to assault a person with intent to resist or prevent the lawful apprehension or detention of a person.
Under section 31(2), the act must be performed either with the intention to cause, or with recklessness regarding, bodily injury, pain, discomfort, damage, insult, or deprivation of liberty. Furthermore, the assault must actually result in one of these outcomes, though not necessarily the specific consequence that was intended or anticipated. This statutory definition differs significantly from the summary offence of common law assault.
Penalty for aggravated assault
The maximum penalty for aggravated assault under section 24 of the Summary Offences Act 1966 depends on the specific aggravating circumstances of the offence:
- If the assault occurs in company with any other person, a maximum penalty of 12 months imprisonment applies.
- If the assault occurs by kicking or with any weapon or instrument, a maximum penalty of two years imprisonment applies (s24(2)).
- A person convicted before the Magistrates’ Court for common assault (under s23) against a male child (up to 14 years of age) or any female in which the court thinks that the assault is of such an aggravated nature that it cannot sufficiently be punished under s23 is liable to a penalty of 6 months imprisonment (s24). The court can also make any orders to enter into a recognizance and find sureties, in default of which an accused may be imprisoned for up to 12 months (s24(1)(a)-(b)).
While a serious aggravated assault may result in imprisonment, less severe penalties such as a community corrections order or fine can be imposed for less serious offending.
What is a recognizance release with surieties:
- This is akin to an adjourned undertaking. Failure to comply with an undertaking could lead to a resentencing exercise and in theory could lead to a prison sentence being imposed.
Defences
If you have been charged with aggravated assault, you may have a defence available. For example, if somebody else assaulted the victim or you used a weapon or kicked someone in self-defence, you will have a defence to aggravated assault charges.
The availability of a defence depends on the circumstances of the alleged incident, and each defence requires a tailored strategy. Contact an experienced criminal defence lawyer to discuss your options.
Where the case will be heard
- As a summary offence, aggravated assault cases are typically heard in the Magistrates’ Court of Victoria.
- However, in some circumstances if there are also other more serious assault charges that includes an injury or serious injury, also listed with the matter, then this charge may also be heard in a higher court with the other matter, see s242 of the CPA 2009.
Questions to consider
Can the prosecution make out their case? Did you assault the victim? In what circumstances? What constitutes an assault? Did you act alone, or was there a co-accused? Do you have a defence? If you are pleading guilty, what can you do to minimise your sentence?
You should discuss your options with an experienced criminal lawyer as soon as possible.
Have you been charged with Aggravated Assault?
Aggravated Assault is a summary offence under section 24 of the Summary Offences Act 1966 (Vic). If you have been charged with Aggravated Assault, make an appointment to see one of our experienced criminal lawyers today.
Being found guilty of Aggravated Assault can result in imprisonment. The legislation defines the term ‘assault’ very broadly and there are many factors to consider before advising the Court whether you intend to plead guilty or not guilty. Before proceeding further, speak to a specialist criminal lawyer.
Read on for further information on the charge of Aggravated Assault, or follow the link for further detailed information about ‘What is an assault?’
What to do next
Consult an experienced assault lawyer urgently. If you intend to plead guilty to Aggravated Assault, we can provide advice and prepare a plea with relevant reports and documents to help you avoid a prison sentence or otherwise achieve the best possible outcome.
If you intend to plead not guilty, contact us as soon as possible to arrange a suitable case strategy. You need an experienced lawyer who will consider all relevant evidence, such as CCTV recordings, DNA evidence, and witnesses, and preserve any exonerating evidence.
Consideration of these factors and early intervention by an experienced lawyer will increase the chances of achieving a withdrawal of charges or an acquittal. Don’t delay your preparation until the last minute, as time and careful planning are essential for a favourable outcome.
The legislation for aggravated assault
Summary Offences Act 1966
S24 Aggravated assault
- (a) Where a person is convicted before the Magistrates’ Court of an assault or battery upon any male child whose age in the opinion of the court does not exceed fourteen years or upon any female, if in the opinion of the court the assault or battery is of such an aggravated nature that it cannot sufficiently be punished under the last preceding section, the person offending shall be liable on conviction to a penalty of 25 penalty units or to imprisonment for six months and the court may (if it thinks fit in any of the said cases) without any further or other charge adjudge any person convicted to enter into a recognizance and find sureties to keep the peace and be of good behaviour for a term of not more than six months from the expiration of such sentence.
(b) In default of compliance with any such order to enter into a recognizance and find sureties the court may order an accused to be imprisoned until he complies with the order:
Provided that no person shall be imprisoned for non-compliance with any such order for a longer period than twelve months. - Any person who in company with any other person or persons assaults another person shall be liable to imprisonment for twelve months and any person who by kicking or with any weapon or instrument whatsoever assaults another person shall be liable to imprisonment for two years.
