Can I avoid a criminal record for assault occasioning actual bodily harm?

Yes, it is possible to avoid a criminal record. The likelihood of this outcome depends on the extent of the injury, the circumstances of the offence, and the subjective circumstances of the offender. 

You can increase the chances of this outcome by preparing a strong subjective case. We help you prepare a strong case, by working closely with you and understanding the unique circumstances of your case.

However, due to the seriousness of this charge, a conviction will be recorded in most cases.

Likely sentence

Depending of the seriousness of the offence, the most common penalty for a first time offender is a conditional release order or community correction order. As a result, a conviction is recorded.

Will I go to jail?

Assault occasioning actual bodily harm carries a maximum penalty of 5 years imprisonment in NSW. Therefore, it is possible to go to jail.

For serious examples of this offence, the court will consider a term of imprisonment. This includes first time offenders. However, there are other options available to the court for serious assaults, such as an intensive corrections order. Therefore, you should seek legal advice to find out if it is possible to minimise your chance of going to jail.

If I defend the charge, what must be proved?

The prosecution must prove beyond reasonable doubt that:

1. Physical conduct occurred (touching or striking); 
2. The conduct was intentional or reckless;
3. It was without the consent of the person; 
4. Without lawful excuse; and
5. The action caused actual bodily harm.

Therefore, you will be found not guilty if the prosecution is unable to prove these elements, or you can establish that you acted in self-defence, under duress or out of necessity.

Examples of ‘actual bodily harm’

Actual bodily harm refers to an assault where an injury occurs. However, the injury must be “more than merely transient or fleeting” (R v Donovan [1934] KB 498).

There is no exhaustive list of what constitutes actual bodily harm. For instance, bruises and scratches are common examples of injuries that are capable of amounting to actual bodily harm. In some cases, psychological harm can also amount to actual bodily harm.

If the injury is transient or fleeting, the more appropriate charge is common assault.