Common Assault

Common assault covers unlawful force or a threat under section 61 of the Crimes Act 1900, often with no injury and no physical contact required.

Being charged with common assault in New South Wales (NSW) is unsettling, but a charge is not a conviction. The offence carries a maximum penalty of two years’ imprisonment, yet that ceiling is reserved for the most serious cases. For most people, the real objective is to protect a clean record, and with a well-run defence or plea in mitigation, that is a realistic goal.

The team at Hamilton Janke Lawyers defends common assault charges across NSW courts. We give you an honest assessment of the evidence, a clear strategy, and representation focused on the outcome that matters most to you.

What Is Common Assault in NSW?

Common assault is the least serious assault offence in NSW criminal law, set out in section 61 of the Crimes Act 1900. What surprises most people is that no injury is required – and no physical contact is required at all. That is exactly why so many of these charges can be defended or resolved without a conviction.

The offence is committed in one of two ways: by intentionally or recklessly applying unlawful physical force to another person, or by causing another person to apprehend immediate and unlawful violence, even where no one is touched. Conduct that may amount to common assault includes:

Raising a fist or squaring up to someone
Pushing, shoving or unwanted physical contact
Spitting on a person
A credible threat of immediate violence

Because common assault captures such a wide range of conduct, the charge on the sheet tells you very little about how serious your legal matter really is, or how it is likely to end. That is a question for a lawyer who knows the local courts.

What the Prosecution Must Prove

Before you can be found guilty of common assault, the prosecution must prove every element beyond reasonable doubt:

That you applied physical force to, or threatened, another person
That you did so intentionally or recklessly
That the act was without the other person’s consent
That you had no lawful excuse

You do not have to prove your innocence. The burden sits entirely with the prosecution, and if any single element is not proved beyond reasonable doubt, the charge fails. That standard is the defendant’s strongest asset, and running a defence well often means holding the prosecution to it.

When a Threat Is Enough

You can be charged with common assault even where no one was touched, provided the alleged victim genuinely apprehended immediate and unlawful violence. The word “immediate” does real work here: the fear must be of violence then and there, not at some vague point in the future. A threat to “sort you out next week,” for example, is very different from a raised fist in a doorway.

This threat limb is a frequent source of both confusion and successful defence. Where the alleged threat was conditional, aimed at some future time, or simply not credible in the surrounding circumstances, the case that there was any apprehension of immediate violence at all can be a weak one.

Common Assault vs Actual Bodily Harm and Grievous Bodily Harm

Common assault sits at the bottom of the NSW assault offence ladder. Charges escalate with the level of harm alleged, and knowing where your charge sits tells you a great deal about the maximum penalty you face and which court will hear it:

Common assault (section 61) – physical force or a threat, with no injury or only minor harm. Maximum penalty of two years’ imprisonment and/or a fine of 50 penalty units ($5,500). Usually heard in the Local Court.
Assault occasioning actual bodily harm (section 59) – an assault where the injuries caused are more than “transient or trifling,” such as bruising, scratches or lasting psychological harm. Maximum penalty of five years’ imprisonment (seven if committed in company).
Reckless wounding or grievous bodily harm (section 35) – the breaking of the skin or a really serious injury caused recklessly. Heard in the District Court.
Wounding or grievous bodily harm with intent (section 33) – intended really serious injury, carrying a maximum of 25 years’ imprisonment.

Which charge you face changes everything about your exposure. An experienced criminal lawyer can sometimes negotiate a more serious charge down – to assault occasioning actual bodily harm, or down to common assault – before it reaches a hearing or Trial. Getting that assessment at an early stage is often the single most valuable step you can take.

Maximum Penalty for Common Assault

The maximum penalty for common assault is two years’ imprisonment and/or a fine of 50 penalty units, currently $5,500. Read that figure the right way: the maximum is the ceiling for the very worst cases, not the expected outcome. A first-time common assault very rarely attracts full-time imprisonment, and some matters resolve with no criminal conviction at all.

Common assault is a Table 2 indictable offence, which means it is almost always dealt with summarily in the Local Court. It is only heard in the District Court if the prosecution elects to have it dealt with on indictment, which is uncommon for a straightforward matter. A Local Court hearing usually means a faster resolution and a lower penalty ceiling if found guilty – another reason the early strategic decisions matter.

Penalties and Realistic Outcomes

Outcomes turn on three things: the strength of the evidence, the objective seriousness of the alleged offence, and your personal circumstances. Under the Crimes (Sentencing Procedure) Act 1999, the court has a full range of options, from least to most serious:

Section 10(1)(a) dismissal or conditional release order with no conviction recorded – you are found guilty, but no conviction goes on your record. This is the outcome most first offenders hope for, and a realistic goal in the right case.
Conditional release order with a conviction – a good behaviour order, but a conviction is recorded.
A fine.
Community Correction Order (CCO) – supervision and conditions served in the community.
Intensive Correction Order (ICO) – a custodial sentence served in the community under strict conditions.
Full-time imprisonment – reserved for the most serious matters at the top of the range.

A section 10 is not a long shot in a well-prepared first offence. What moves the needle is getting legal advice early, demonstrating genuine remorse, and putting the right material before the court about your character and circumstances. The difference between a conviction and a clean record is very often the quality of that preparation.

Defences to a Common Assault Charge

Because the prosecution carries the whole burden, a common assault charge is often more defendable than it first feels – particularly where you acted with a lawful excuse. Identifying the right defence early shapes your entire strategy. The possible defences include:

Self-defence – by far the most common. It succeeds where you believed your conduct was necessary to defend yourself or another person, and that conduct was a reasonable response in the circumstances as you perceived them. Once self-defence is properly raised, the prosecution must disprove it beyond reasonable doubt.
Lawful correction – may apply where a parent disciplines a child within the limits the law allows.
Consent – may apply to physical contact that both people accept, such as in a contact sport.
Duress – where you were effectively forced to act by a threat.
Necessity – where you broke the law to avoid a greater harm.
Accident or lack of intent – because common assault requires a deliberate or reckless act, a genuine accident will also defeat the charge.

Choosing between them is not guesswork. It depends closely on the alleged facts, the circumstances surrounding the alleged offence, and what the evidence can establish, which is why it pays to seek legal advice before you say anything to anyone (particularly the Police) about what happened.

Should You Plead Guilty or Not Guilty?

This decision deserves an honest framework, not a sales pitch. If you plead not guilty, your matter is defended: the prosecution must prove every element beyond reasonable doubt, and a viable defence can lead to an acquittal. Pleading guilty early attracts a sentencing discount of up to 25% for resolving the matter early – and, run well, a guilty plea can still secure a section 10 with no conviction recorded.

The one thing you should never do is decide before you attend court and get specialist advice. A guilty plea is sometimes the right call, but only once you know the strength of the case against you. The wrong plea, entered too early, can cost you a defence you did not know you had – or a clean record you could have kept.

Your Rights During a Police Interview

What you do in the first 48 hours can shape the whole matter. If you have been charged or asked to “come in for a chat” at the police station, keep these points in mind:

You have the right to silence. Beyond your identifying details, you are not obliged to answer questions.
You are not required to take part in a police interview, and in almost every case, you should not do so without legal advice first.
You have the right to speak to a lawyer before any interview.
Call a criminal lawyer before your first court date.

Common Assault and Domestic Violence (AVOs)

Where a common assault arises in a domestic or family context, it is flagged as a domestic violence offence. That flag changes how police, bail and sentencing treat the matter, and it is often accompanied by an application for an Apprehended Domestic Violence Order (ADVO).

The criminal charge and the AVO are separate proceedings, but they run together – and breaching an AVO is itself a criminal offence. Handling one part without the other can go badly wrong, so we manage your defence and your AVO position as a single strategy.

How a Common Assault Conviction Can Affect Your Future

For most people, the criminal conviction is the real stake – not the fine. A conviction becomes part of your criminal record and can significantly affect current and future employment, working with children and police checks, some professional licences, and travel or visa applications to certain countries, including the United States. That is why fighting for a section 10 with no conviction recorded is so often the central aim, and why the outcome is worth investing in proper representation.