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March 17, 2020

Public Liability Claims and the Civil Liability Act

Serious Assaults and Sexual Assaults

Before speaking with police you should consult a criminal defence lawyer for legal advice. Our criminal defence solicitors have over 25 years of combined experience and have dealt with many serious assaults including sexual assault and indecent dealing matters.

In Western Australia, an assault means striking, touching, moving or applying force to another person directly (by physical touching) or indirectly (using an object or by manipulating light, heat, gas or any other substance that causes injury or personal discomfort) without the other person’s consent.

An assault charge may also arise from a threat where the accused has or appears to have a real ability to carry out the assault.

It is not necessary that the victim receive a physical injury for some types of assault charges.

In Western Australia the law relating to assault is primarily governed by the Criminal Code 1913. Western Australia has an array of assault offences that were created to capture and criminalise different forms of behaviour. Some of these assaults include:

Common Assault

Common assault is the application of force against another without their consent. It is not necessary that the assault leads to an injury. Actions such as pushing, slapping, striking and kicking are all considered to be an application of force and may give rise to a charge of common assault. Similarly, the act of spitting on someone may also constitute an assault however spitting is considered to be a serious assault as it gives rise to the risk of disease being transmitted.

Common assault is dealt with in the Magistrates Court and carries a maximum penalty of 18 months imprisonment and a fine of $18,000. However, if the offence is committed in a circumstance of aggravation the maximum penalty increases to three (3) years imprisonment and a fine of $36,000.

Serious Assault

In Western Australia, a ‘serious assault’ is any assault against a police, fire or ambulance officer, hospital staff, a person operating a transport vehicle  or a public officer such as a minister for parliament, court attendant or prison officer. The maximum penalty for a serious assault varies from 7 to 10 years dependant on the circumstances such as if the accused was also armed with a weapon or if the victim suffers a bodily injury.

Assault Occasioning Bodily Harm (AOBH)

AOBH arises from the application of force against another without consent resulting in the victim suffering bodily harm. Bodily harm means any bodily injury which interferes with the health or comfort of the victim. Injuries such as broken bones, black eyes, swelling or bruising may constitute a bodily injury.

An assault occasioning bodily harm may be dealt with in the Magistrates Court carrying a maximum penalty of two (2) years imprisonment and a fine of $24,000 or if an assault occasioning bodily harm is committed in a circumstance of aggravation and is dealt with in the Magistrates Court the maximum penalty is three (3) years imprisonment and a fine of $36,000. AOBH may also be dealt with in the District Court where the maximum term of imprisonment significantly increases.

Grievous Bodily Harm

Grievous bodily harm (GBH) is defined as a bodily injury which either:

  1. Endangers or is likely to endanger life; or
  2. Causes or is likely to cause permanent injury to heath.

GBH covers a broad range of injuries and even if the victim receives medical treatment and makes a full recovery the charge will still apply.

GBH carries a maximum penalty of 10 years imprisonment and is dealt with in the District Court however the maximum penalty may increase to 14 years if the GBH is committed whilst stealing a car, is done against a public officer or falls under a circumstance of aggravation.

Sexual Assaults and Indecent Dealings

In Western Australia, sexual offences are governed by the Criminal Code 1913 and includes:

  • Sexual penetration without consent of an adult (formerly known as rape);
  • Indecent assault against an adult;
  • Sexual penetration of a child; and
  • Indecently dealing with a child.

For all sexual assault charges against adults the prosecution must prove that the victim did not consent to the sexual activity. Consent must be freely and voluntarily given. If “consent” is obtained through force, threat, intimidation, deceit, or by other fraudulent means it will not be accepted as consent. In Western Australia a child under the age of 16 years (and in some cases 18 years) is incapable of consenting to an act which constitutes an offence.

Sexual offences are very serious and are likely to result in imprisonment and an order for the offender to be listed as a registered sex offender. Registered sex offenders must report large amounts of personal information to authorities on a regular basis, may face limitations on travel, and restricted employment prospects.

If you are charged with a sexual offence it is advised that you contact a criminal lawyer for advice to ensure your rights are protected. If you are facing a charge of assault and need advice on how to proceed, contact D.G. Price & Co.

Circumstances of Aggravation

An assault is aggravated if it is committed in one or more of the following circumstances:

  • When the accused is in company with a co-offender;
  • The accused is armed with a weapon or pretends to be armed;
  • The accused is in a family relationship with the victim;
  • A child was present at the time the offence occurred;
  • The accused is subject to a violence restraining order which protects the victim;
  • The victim is of, or over the age of 60 years old; or
  • The offence was racially motivated.

When an offence is committed in a circumstance of aggravation the maximum statutory penalties increases and the offender may receive a mandatory term of imprisonment.