What Is Assault in WA?

Assault offences in Western Australia are governed by the Criminal Code. Many people assume that assault requires punching, kicking or causing an injury. However, under WA law, an assault can occur even where no physical injury is caused. An assault may include:

• Striking another person.
• Pushing or grabbing someone.
• Spitting on a person.
• Threatening violence in circumstances where the threat can be immediately carried out.
• Any unlawful application of force to another person. The most commonly charged assault offence is common assault.

What is Aggravated Assault?

An aggravated assault is an assault committed in circumstances that Parliament considers more serious. The assault itself may be similar to a common assault, but the surrounding circumstances increase the seriousness of the offence. Where circumstances of aggravation are alleged and proven, the maximum penalty is often significantly higher.

What’s the difference between Assault and Aggravated Assault in WA?

If you have been charged with assault in Western Australia, one of the first questions you may have is: what is the difference between assault and aggravated assault? Both are offences under s.313 Criminal Code 1913 (WA). The distinction is important because an allegation that is committed in circumstances of aggravation can result in significantly higher penalties and, in some cases, mandatory terms of imprisonment.

What are circumstances of aggravation?

Circumstances of aggravation can arise in a range of situations, including where:

• The offence is committed in the presence of a child.
• The victim is aged 60 years or older.
• The offender is in a family or domestic relationship with the victim.
• The offender is subject to bail, a community order or certain court orders.
• Other aggravating circumstances apply under the legislation. The specific circumstances will depend on the offence charged and the relevant provisions of the Criminal Code.

Does Aggravated Assault mean someone was seriously injured?

No. This is one of the most common misconceptions. An assault can be aggravated even where the victim suffers little or no injury. The question is not simply how serious the injury was. The court will also consider whether any legally recognised circumstances of aggravation existed at the time of the alleged offence.

What is Assault Occasioning Bodily Harm?

Assault occasioning bodily harm is a separate offence under s.317 Criminal Code 1913 (WA) that is more serious than common assault. Generally speaking, bodily harm means an injury that interferes with a person’s health or comfort and is more than merely transient or trifling. Examples may include:

• Bruising.
• Swelling.
• Cuts.
• Physical injuries causing ongoing pain or discomfort. The penalties for assault occasioning bodily harm are significantly greater than those for common assault.

What happens if I am charged with Aggravated Assault?

If you are charged with aggravated assault, the court process will depend on:

• The specific charge.
• Whether you plead guilty or not guilty.
• Your criminal history.
• The circumstances of the alleged offence. The prosecution must prove the elements of the offence beyond reasonable doubt, including any alleged circumstances of aggravation.

Can I defend an assault charge?

Yes. Every case is different, but there are a number of possible defences that may arise depending on the circumstances. Potential defences may include:

• Self-defence.
• Accident.
• Duress.
• Lack of intent.
• Identity issues.
• Factual disputes regarding what occurred. Whether a defence is available will depend on the evidence in your particular case.

Will I go to prison for Aggravated Assault?

Not necessarily. The outcome will depend on:

• The seriousness of the offence.
• Whether injuries were caused.
• Any aggravating circumstances.
• Your personal circumstances.
• Your criminal history.
• Whether you plead guilty. While imprisonment is available for more serious assault offences, many cases are dealt with by way of other sentencing options. Obtaining legal advice early can help you understand the likely range of outcomes.

Do I need a lawyer for an Assault Charge?

While you are entitled to represent yourself, assault charges can have significant consequences. A criminal lawyer can assist by:

• Explaining the charge.
• Reviewing the evidence.
• Identifying possible defences.
• Negotiating with prosecutors.
• Preparing sentencing submissions.
• Representing you in court. Early legal advice is particularly important where circumstances of aggravation are alleged.

Can I get bail for an assault charge?

In many cases, yes. However, bail depends on the circumstances of the charge and the individual accused.

Need advice about an assault charge?

This is general information only. If you have been charged with assault, aggravated assault or assault occasioning bodily harm in Busselton, Bunbury, Margaret River, Dunsborough or elsewhere in Western Australia, obtaining legal advice early can make a significant difference. For more information about assault charges, penalties and available defences, visit our Assault Charges service page or contact Boudica Criminal Law to discuss your circumstances.