Can I avoid a criminal record for common assault?

Yes, it is possible to avoid a criminal conviction.

The likelihood of this outcome depends on the circumstances of the offence. In addition, the court will consider your subjective circumstances. This means if the assault is serious, or if you do not have a strong subjective case, a non-conviction is unlikely.

Common assault sentence for first offence

If it is your first offence, and the assault is not serious, you will likely receive a fine, conditional release order or community corrections order.

In some circumstances, the court may decide to not record a conviction. You can increase the chances of this outcome by preparing a strong subjective case.

Will I go to jail?

This offence carries a maximum penalty of 2 years imprisonment in NSW. Therefore, it is possible to be sentenced to jail. This includes first time offenders.

The likelihood of full time jail depends on the seriousness of the assault and your criminal history. In addition, the Court will consider your subjective circumstances. 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:

• There was physical conduct, or threatened conduct towards another person; and
• The conduct was intentional or reckless; and
• Without the consent of the person; and
• Without lawful excuse

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