Charged With Common Assault in NSW?

Common assault is an offence under section 61 of the Crimes Act 1900 (NSW). It covers conduct that causes another person to fear immediate unlawful violence, or unwanted physical contact, where no real injury is caused. The maximum penalty is 2 years imprisonment. It is a Table 2 offence, which means it is dealt with in the Local Court unless the prosecutor elects to have it heard on indictment. In the Local Court the maximum is 2 years imprisonment and a fine of up to 50 penalty units. A charge is not a conviction, and the court has a range of sentencing options, including options that do not record a conviction at all. If the alleged assault happened in a domestic relationship, an apprehended domestic violence order will usually be part of the picture.

Question	Short answer
What law applies?	Crimes Act 1900 (NSW), section 61
Maximum penalty	2 years imprisonment
Which court?	Local Court, unless the prosecutor elects to proceed on indictment (Table 2 offence)
Local Court maximum	2 years imprisonment and a fine of up to 50 penalty units
Is injury required?	No. Common assault covers threats of immediate violence and unwanted contact without real injury
Can I avoid a conviction?	The court has options under section 10 and section 9 of the Crimes (Sentencing Procedure) Act 1999 that do not record a conviction. It depends entirely on the facts
Is self-defence available?	Yes, under sections 418 to 423 of the Crimes Act. Once raised, the prosecution must disprove it beyond reasonable doubt
Where is my local court?	Hornsby Local Court, 294 Peats Ferry Road, Hornsby NSW 2077
Where can I get advice?	Caspian Legal, 22-28 Edgeworth David Avenue, Hornsby NSW 2077, 02 7264 3200

A first court date can feel overwhelming, particularly if you have never been charged with anything before. If your matter is listed at Hornsby Local Court, you can book a consultation with Caspian Legal before your court date so that you understand the charge, the evidence and your options.

Which law applies to a common assault charge?

This article applies to common assault charges under New South Wales law, dealt with in the NSW Local Court. It is general information only and is not legal advice. Every case turns on its own facts and evidence.

Common assault is created by section 61 of the Crimes Act 1900 (NSW), which provides that a person who assaults another, although not occasioning actual bodily harm, is liable to imprisonment for two years.

What is common assault in plain English?

Common assault does not require an injury. It covers two different kinds of conduct.

The first is causing another person to apprehend immediate and unlawful violence. Raising a fist, or making a threat that the person believes can be carried out right then, may be enough. Words alone can amount to an assault in some circumstances.

The second is applying force to another person without their consent. Pushing, grabbing, slapping, spitting or throwing something that makes contact can all fall within the section, even where the person is not hurt.

Term	Plain English meaning
Common assault	The offence under section 61, where no actual bodily harm is caused
Actual bodily harm	An injury that is more than transient or trifling. If this is alleged, the charge is usually the more serious offence under section 59
Court attendance notice, or CAN	The document that formally starts the case and tells you when and where to attend court
Police facts sheet	The police version of what they say happened. It is not evidence unless you agree with it
Mention	A short court date where the case is listed for a step to be taken, not a full hearing
Plea	Your formal answer to the charge, either guilty or not guilty
Hearing	The contested trial in the Local Court, where witnesses give evidence and the magistrate decides
Table 2 offence	An indictable offence dealt with in the Local Court unless the prosecutor elects to proceed on indictment
ADVO	An apprehended domestic violence order, which restricts contact and behaviour toward a protected person

What must the prosecution prove?

To prove common assault, the prosecution must establish each of the following beyond reasonable doubt.

1. That you either applied force to the other person, or caused that person to apprehend immediate and unlawful violence.
2. That the other person did not consent.
3. That you acted intentionally or recklessly.
4. That you acted without lawful excuse.

If the prosecution cannot prove any one of these elements to the criminal standard, the charge should fail. This is why the detail of the evidence matters so much. Body worn video, CCTV, text messages, medical records and independent witnesses often decide these cases, not the police facts sheet.

Which court will hear a common assault charge?

Common assault is a Table 2 offence under Schedule 1 of the Criminal Procedure Act 1986 (NSW). Under section 260(2) of that Act, a Table 2 offence is dealt with summarily by the Local Court unless the prosecutor elects to have it dealt with on indictment. A person charged with a Table 2 offence cannot elect to go to the District Court.

Feature	Local Court (usual course)	District Court (if the prosecutor elects)
Who decides	A magistrate	A judge and jury on a plea of not guilty
Maximum imprisonment	2 years	2 years, being the maximum in section 61
Maximum fine	50 penalty units	As provided by law
Typical timeframe	Months	Usually considerably longer
Who prosecutes	Police prosecutors	The Office of the Director of Public Prosecutions

Most common assault matters from the Hornsby area are listed at Hornsby Local Court, 294 Peats Ferry Road, Hornsby NSW 2077. The registry can be contacted on 1300 679 272, and audio visual link facilities are available at that location.

What penalties can the court impose?

The maximum penalty is the highest sentence available for the worst category of case. It is not the starting point. The Local Court has the full range of sentencing options in the Crimes (Sentencing Procedure) Act 1999 (NSW).

Order	Section	What it means	Conviction recorded
Dismissal	s 10(1)(a)	The court finds the charge proved but dismisses it	No
Conditional release order without conviction	ss 10(1)(b) and 9	Release on conditions for up to 2 years	No
Conviction with no other penalty	s 10A	A conviction is recorded but no further penalty is imposed	Yes
Fine	Part 2	A monetary penalty, payable within 28 days unless a plan is arranged	Yes
Conditional release order with conviction	s 9	Conditions for up to 2 years, which may include supervision	Yes
Community correction order	s 8	Conditions for up to 3 years, which may include community service or supervision	Yes
Intensive correction order	s 7	A sentence of imprisonment served in the community under strict supervision	Yes
Full-time imprisonment	s 5	Custody, available only where no other penalty is appropriate	Yes

The court considers the objective seriousness of what happened, the aggravating and mitigating factors in section 21A, your prior record, and any early plea of guilty. What you put before the court matters. Character references, evidence of counselling or a behaviour change program, and a considered explanation can make a real difference to the sentencing outcome.

Common assault where there is a domestic relationship

If the alleged assault occurred between people in a domestic relationship, the charge is treated as a domestic violence offence under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). This changes the process in several practical ways.

Police who suspect a domestic violence offence will usually apply for an apprehended domestic violence order at the same time as laying the charge, and may serve a provisional order immediately. Under section 40 of that Act, an interim order must be made when a person is charged with certain offences. Under section 39, where a person pleads guilty to or is found guilty of a serious offence, the court must make a final apprehended violence order for the protection of the person against whom the offence was committed, unless it is satisfied that an order is not required. That obligation applies even where the charge is dealt with without a conviction.

Sentencing is also affected. Section 4A of the Crimes (Sentencing Procedure) Act 1999 requires a court sentencing for a domestic violence offence to impose either full-time detention or a supervised order, unless satisfied that a different option is more appropriate and it gives reasons. Section 4B requires the court to consider the safety of the victim before imposing certain community-based orders.

If you are served with a provisional or interim order, read the conditions carefully and comply with them exactly, even if you disagree with the allegations. Breaching an order is a separate criminal offence and is treated seriously. If you think the conditions are unworkable, get advice about the order rather than ignoring it.

How does common assault compare with other assault charges?

Offence	Section	Maximum penalty	Key difference
Common assault	Crimes Act s 61	2 years	No actual bodily harm
Assault occasioning actual bodily harm	Crimes Act s 59	5 years, or 7 years in company	An injury more than transient or trifling
Reckless wounding	Crimes Act s 35(4)	7 years	Breaking of the skin
Assault police officer in execution of duty	Crimes Act s 60(1)	5 years	The complainant is a police officer on duty
Stalking or intimidation with intent to cause fear	Crimes (Domestic and Personal Violence) Act s 13	5 years	Conduct causing fear of physical or mental harm

Police sometimes lay a charge under section 59 where the alleged conduct sits more comfortably within section 61. Whether an injury amounts to actual bodily harm is a question that is often worth testing, because the difference between the two sections is the difference between a 2-year and a 5-year maximum.

What happens step by step

1. You receive a court attendance notice. It sets out the charge and the date, time and court where you must attend.
2. Ask police for the brief material. Your lawyer will usually seek the facts sheet, your criminal record and the brief of evidence.
3. Get advice before you enter a plea. A plea entered early is difficult to reverse, and an early plea of guilty to the wrong charge cannot be undone simply by changing your mind later.
4. Attend the first mention. This is a short appearance. The court will usually set a timetable, and a lawyer can appear for you in many Local Court mentions.
5. If you plead not guilty, the matter is set down for hearing. Directions will be made for service of the brief of evidence, and a hearing date will be allocated.
6. Negotiations may occur. Representations can be made to the prosecution about withdrawing or amending a charge or the facts sheet. This happens in many matters and can change the outcome significantly.
7. If you plead guilty, the matter proceeds to sentence. Material in support, such as references and evidence of counselling, is handed up at that point.
8. The court makes its decision. If you are sentenced, the orders take effect immediately unless the court says otherwise.
9. Consider appeal rights. A person convicted or sentenced in the Local Court generally has appeal rights to the District Court, and strict time limits apply.

What defences may be available?

Whether a defence is available depends entirely on the evidence in your case. The following are commonly raised.

• Self-defence under sections 418 to 423 of the Crimes Act 1900. A person is not criminally responsible if they believed the conduct was necessary to defend themselves or another and the conduct was a reasonable response in the circumstances as they perceived them. Under section 419, once self-defence is raised, the prosecution must prove beyond reasonable doubt that the person was not acting in self-defence.
• Lawful correction of a child under section 61AA. This applies to a parent or a person acting in place of a parent where the force was reasonable in the circumstances. It does not apply to force applied to the head or neck, or force likely to cause harm lasting more than a short period.
• Consent. Ordinary physical contact in sport or everyday life is not usually an assault.
• Duress or necessity, in limited circumstances.
• A factual dispute about identity, or about whether the conduct occurred at all.

None of these are automatic. Each depends on what the evidence shows, and running a defence that is not supported by the evidence can make an outcome worse rather than better. This is a decision to make with a solicitor after reading the brief.

What to bring to your first appointment

Item	Why it matters
The court attendance notice	It confirms the charge, the court and the date
The police facts sheet	It sets out what the prosecution says happened
Any AVO documents served on you	The conditions apply immediately and must be understood
Photographs, messages or CCTV you hold	Evidence can be lost quickly, so preserve it early
Names and contact details of witnesses	Independent accounts are often decisive
Medical records, if you were injured	Relevant where self-defence is in issue
Details of any prior record	Your history affects the sentencing options available
Employment, visa or licensing details	A conviction can have consequences beyond the courtroom

What not to do

• Do not contact the complainant, directly or through anyone else, particularly if an AVO is in place.
• Do not post about the incident on social media or discuss it in group chats. Those messages can be obtained and used.
• Do not delete messages, photographs or footage. That can be treated as an attempt to destroy evidence.
• Do not fail to attend court. A warrant may be issued for your arrest.
• Do not assume the charge will be dropped because the other person no longer wants to proceed. That decision is for the prosecution, not the complainant.
• Do not plead guilty just to get the matter over with before you have read the brief of evidence.
• Do not agree to a police facts sheet that contains things you dispute. What is agreed becomes the basis of sentence.
• Do not breach an AVO condition, even by consent of the protected person. The order binds you, not them.

Common myths about common assault charges

Myth or mistake	The position
No injury means no charge	Common assault does not require any injury
It was only words, so it cannot be assault	Words can amount to an assault where they cause fear of immediate violence
The complainant can withdraw the charge	The prosecution decides whether to continue. A withdrawal request is only one factor
Pleading guilty always means a criminal record	The court has options under sections 10 and 9 that do not record a conviction
Self-defence is something I have to prove	Once raised, the prosecution must disprove it beyond reasonable doubt
The police facts must be accepted as written	The facts sheet can be disputed and is frequently negotiated
A charge more than six months old must be dismissed	The six month limit for summary offences does not apply to indictable offences dealt with summarily under Chapter 5 of the Criminal Procedure Act

Does a common assault conviction go on my record?

If a conviction is recorded, it appears on your criminal record and can be disclosed in police checks. That can affect employment, professional registration, working with children checks, firearms licensing, insurance and, for non-citizens, visa status. Under the Criminal Records Act 1991 (NSW), some convictions become spent after a crime-free period, but not all convictions are capable of becoming spent, and the rules are technical.

Where a court deals with the matter under section 10 of the Crimes (Sentencing Procedure) Act 1999, no conviction is recorded. Whether that is realistically available in your case depends on the seriousness of the conduct, your record and what you can put before the court. It is not something anyone can promise in advance.

Why acting early matters

There is no six month time limit for a common assault charge dealt with summarily, because Chapter 5 of the Criminal Procedure Act 1986 provides that no time limit applies to indictable offences dealt with in that way. That does not mean delay is safe. CCTV footage is routinely overwritten within weeks. Witness memories fade. Representations to the prosecution are usually more effective before a hearing date has been allocated. If you intend to appeal a Local Court result, strict time limits apply.

What happens in a first consultation at Caspian Legal

The first appointment is practical. We read the court attendance notice and the police facts sheet, explain what the prosecution has to prove, identify what evidence should be obtained or preserved now, and explain the realistic options, including the consequences of a plea either way. We explain what the court process at Hornsby Local Court involves and what will be expected of you on the day. We then set out the next steps and what they will cost.

Caspian Legal assists clients in Hornsby and across the Upper North Shore, including Waitara, Asquith, Normanhurst, Thornleigh, Wahroonga, Pennant Hills and Berowra. Hornsby Local Court is a short walk from Hornsby station and sits next to the police station on Peats Ferry Road, so many people attend on their way to or from work. Arrive early, allow time for security screening, dress as you would for a job interview, and check the court list on arrival to find your courtroom.

Frequently asked questions

Do I have to attend court for a common assault charge?

Yes, unless a lawyer appears for you and the court excuses your attendance. For many Local Court mentions a solicitor can appear on your behalf. For a hearing, you should expect to attend. Failing to appear can result in the matter proceeding in your absence or a warrant being issued.

Can I be charged if nobody was hurt?

Yes. Common assault does not require an injury. Where an injury more than transient or trifling is alleged, police usually charge the more serious offence under section 59 instead.

Will I go to jail for common assault?

Full-time imprisonment is available but it is at the top end of the range, and the court must consider whether any other penalty is appropriate first. The realistic range in any particular case depends on the seriousness of the conduct, your record and the material put before the court. No one can tell you the outcome in advance, and you should be cautious of anyone who does.

The other person wants to drop the charge. Does that end it?

No. Once police have laid a charge, whether to continue is a decision for the prosecution. A complainant’s wishes are one relevant consideration and can be communicated through representations, but they are not determinative.

Should I plead guilty at the first mention?

Not before you have read the police facts sheet and received advice. There is a sentencing benefit to pleading guilty early, but that benefit is worth little if you plead to a charge or a set of facts that should have been disputed or negotiated first.

Will I get an AVO as well?

If the matter is a domestic violence offence, an interim order is likely and a final order must be made on a plea or finding of guilt for a serious offence unless the court is satisfied it is not required. Even where a charge is dealt with without a conviction, the obligation to make the order can still apply.

Do I need a lawyer for a first mention?

You are entitled to represent yourself. Whether that is wise depends on what is at stake. Where the charge is disputed, where an AVO is involved, or where a conviction would affect your employment or visa, legal advice is worth obtaining before you say anything on the record.

What if the police charged me with the wrong offence?

Representations can be made to the prosecution seeking withdrawal of the charge or a substitution with a less serious one, supported by the evidence. This is a routine part of criminal practice and is often more productive than simply waiting for a hearing.

Speak with a solicitor before your court date

If you have been charged with common assault, the most useful thing you can do is get advice before you enter a plea. We can explain the charge, review the evidence, and set out your options.

Caspian Legal Pty Ltd

22-28 Edgeworth David Avenue, Hornsby NSW 2077

Phone: 02 7264 3200

Website: caspianlegal.com.au

We assist clients at Hornsby Local Court and throughout the Upper North Shore, including Waitara, Asquith, Wahroonga, Normanhurst, Thornleigh, Pennant Hills and Berowra. Appointments are available in person, by telephone and by video. Contact Caspian Legal to discuss your options before your next court date.

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