What to expect if charged with assault for the first time
If you have been charged with assault and have had no prior involvement with the criminal justice system, you may be wondering what to expect and the type of sentence you may face. While a conviction for a first-time offence may receive a discount in the sentence imposed, the answer to this question depends on the circumstances and the specific charges against you. It is vital to seek experienced legal advice to understand how the law applies in your circumstances.
In Victoria, there are several different assault charges that can apply depending on the nature and circumstances of the conduct alleged. The lower penalty range assault charges are common assault (often called unlawful assault), aggravated assault and common law assault. These offences are usually laid in circumstances where there is no injury alleged or insufficient evidence to prove an injury beyond reasonable doubt.
Assault charges involving an alleged injury are more serious and include charges such as recklessly causing injury, intentionally causing injury, recklessly causing serious injury, negligently causing serious injury, and intentionally causing serious injury.
The most serious forms of assault are intentionally or recklessly causing serious injury in circumstances of gross violence and one-punch manslaughter, whereby a single punch or a strike to the head or neck is taken to be a dangerous act for the purposes of the law relating to manslaughter. Mandatory sentences and minimum non-parole periods apply to these offences.
Penalties for a first-time offender
If you are a first-time offender or have no similar prior offences, a magistrate or judge may reduce the sentence length, impose a lesser fine or offer alternative sentencing. This is because a lack of prior convictions and good character is a significant factor in mitigation of sentence, entitling an offender to some leniency (Tran v The Queen [2011] VSCA 383, [29]). However, the weight attributed to good character is always balanced against the circumstances of the offence and the sentencing purposes.
For example, in the case of an offender charged with several offences, less weight may be attached to the offender’s previous good character during sentencing (Wakim v The Queen [2016] VSCA 301, [41]-[42]). Furthermore, some crimes are so serious, such as those subject to mandatory sentencing, that a custodial sentence will be imposed even for first-time offenders. If this is the case, our experienced criminal lawyers can argue an exception for ‘special reasons’ or otherwise fight to achieve the next best outcome. See below for the maximum penalties and minimum non-parole periods that apply to certain assault offences.
For more on possible sentencing outcomes for a first-time assault charge, please read on.
Diversion
Diversion is a possible outcome for a first-time offender charged with a low-range assault charge such as a common assault (unlawful assault), aggravated assault, or common law assault. See ‘What is Diversion?’ for more.
An example of a low-range assault might include an altercation between neighbours in which there was pushing and shoving, and no one received an injury. When an incident involves an injury, we have found that police informants or prosecutors are unlikely to recommend or support diversion. Even in circumstances where the prosecution or informant does support diversion, magistrates are typically reluctant to grant diversion as the matter is considered too serious.
If you have received a recommendation for diversion for an assault that alleges an injury, it is essential to seek advice from a lawyer as soon as possible. A diversion recommendation does not always mean diversion will be granted. It may be necessary to negotiate the charge before appearing in court for a diversion hearing. It is often the case that a charge has been incorrectly laid or that the factual basis for the charge should be amended before it is read before a magistrate, especially in circumstances where we hope to achieve diversion.
Penalties with or without conviction
When a person is found guilty of an offence, the sentencing court has discretion to impose a penalty (except imprisonment) with or without a conviction. In exercising this discretion, a court must have regard to all the circumstances of the case, including the character and past history of the offender (Sentencing Act 1991 (Vic) s 8). Note, if the court imposes a sentence of imprisonment, a conviction must be recorded. See ‘what is a non-conviction?‘ for more.
A non-conviction finding is typically only available for offences on the lower end of the scale and offenders with either no criminal history or a minor criminal history. However, when a court finds a person guilty of an offence with no conviction recorded, other orders or penalties may be imposed under the Sentencing Act 1991, such as fines, good behaviour bonds or community corrections orders.
While a conviction will usually be handed down if the offence is serious, some serious matters, including a case of armed robbery, have received a non-conviction disposition. A without conviction disposition can never be guaranteed, and the court will often require detailed submissions from your lawyer along with supporting material (such as character references and medical reports).
Good behaviour bond or fine
Assault charges in the lower range of seriousness (i.e. not involving an injury) that are not suitable for diversion will often be dealt with by way of a good behaviour bond or a fine without conviction.
Community Corrections Order
If you have been charged with an assault that involves an injury (but not a serious injury), such as recklessly causing injury or intentionally causing injury, it is likely that, following a plea of guilty, a court would be open to imposing a community corrections order. This is a community-based order which usually comprises of community work or treatment (or both).
Depending on the nature of the offence, the court can also impose supervision by corrections or judicial monitoring (requiring the offender to report to the court following sentence to monitor compliance with the order). Community corrections orders can also be imposed without conviction.
Imprisonment
For assault charges involving a serious injury, a term of imprisonment will usually be imposed even for a first-time offender. Every assault case is different and, in some circumstances (other than for a mandatory sentence offence), a court may consider a combination sentence (that is, a term of imprisonment followed by release on a community corrections order). If a combination sentence is considered by a court, the term of imprisonment that can be imposed must be 12 months or less (see s 44 Sentencing Act 1991).
Mandatory sentencing for serious assaults
In Victoria, mandatory sentencing applies for certain serious offences (known as category 1 and category 2 offences). For category 1 offences, courts must make a custodial order and cannot make a combined order (i.e. imprisonment and community corrections order) during sentencing (Sentencing Act 1991 (Vic) s 5(2G)). An exception applies to certain offences against protected officials such that the court may impose a sentence other than a custodial order if special reasons exist (under s 5(2GA)).
For category 2 offences, a court must make a custodial order and cannot make a combined order unless special reasons exist (under s 5(2H)). In addition to mandatory imprisonment for category 1 and 2 offences, a court must impose a minimum non-parole period for certain offences (including the most serious types of assault). Exceptions to minimum non-parole periods apply in very limited circumstances, such as if the offender was under 18 at the time of the offence or if special reasons exist (under s 10A).
See the table below for assault offences subject to mandatory sentencing and statutory minimum non-parole periods.
Mandatory sentencing and minimum non-parole periods for assault offences
Where an offender was aged 18 or older at the time of the commission of the offence and no special reason applies (Sentencing Act 1991 s 10A), the following assault offences attract a mandatory minimum non-parole period.
Offence | Offence category | Maximum penalty | Statutory minimum |
Manslaughter in circumstances of gross violence (Common law; Crimes Act 1958 (Vic) s 5; Sentencing Act 1991 (Vic) ss 3, 9B, Sch 1) | Category 2 | 20 years | 10 years’ non-parole |
Manslaughter by single punch or strike (Common law; Crimes Act 1958 (Vic) ss 4A, 5; Sentencing Act 1991 (Vic) ss 3, 9C, Sch 1) | Category 2 | 20 years | 10 years’ non-parole |
Intentionally causing serious injury in circumstances of gross violence (not a protected official) (Crimes Act 1958 (Vic) s 15A; Sentencing Act 1991 (Vic) s 10, Sch 1) | Category 1 | 20 years | 4 years’ non-parole |
Recklessly causing serious injury in circumstances of gross violence (not a protected official) (Crimes Act 1958 (Vic) s 15B; Sentencing Act 1991 (Vic) ss 3, 10, Sch 1) | Category 1 | 15 years | 4 years’ non-parole |
The maximum penalties and minimum non-parole periods for category 1 violence offences against protected officials (i.e. emergency workers) can be found here.
Why you need experienced legal advice
If you have been charged with assault and are facing court for the first time, please contact our office today to speak with one of our lawyers. The consequences of not seeking advice or representation as a first-time offender, such as receiving a conviction or a term of imprisonment when it could have been avoided, can be life-changing.
