Common Law Assault

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Common Law Assault in Victoria

Common law assault is an assault charge established under the common law. The common law is a legal system based on court decisions rather than legislation. The key principle is that the courts must follow earlier court rulings about the elements of a charge to ensure consistency. So to answer the question about what is a common law assault? It is an assault charge created at common law, not by the parliament.

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What is an example of Common Law Assault?

An example of common law assault in Victoria, according to the Sentencing Advisory Council, involves cases where physical force or the threat of immediate harm is inflicted on another person without lawful justification. This type of assault does not necessarily require physical contact but can include actions that create a fear of imminent violence.

Common Law Assault vs Common Assault, what is the difference?

The difference between a common law assault charge and a common assault charge is the penalty. So what is the penalty for common-law assault in Victoria?

Maximum penalties/penalty units

Common law assault under the common law carries a maximum penalty of 5 years imprisonment or a maximum fine of 600 penalty units.

Common assault under s23 of the Summary Offences Act carries a maximum penalty of 15 penalty units ($2963.85) or a 3-month term of imprisonment.

Considering the significant difference in sentencing scope between ‘Common Law Assault’ and ‘Common Assault’, also known as ‘Unlawful Assault’, it is important to know which offence you are facing.

Distinction Between Common Law Assault and Statutory Assault in Victoria

Although the elements regarding Common Law Assault and Common/Unlawful assault in Victoria are the same, common law assault is not created by parliament, but it is referred to in the legislation in Victoria at section 320 of the Crimes Act 1958.

Common assault is created by parliament and is referred to in section 23 of the Summary Offences Act 1966 of the legislation.

Things to consider in relation to common law assault

Did the assault occur?
Did it involve the application of force?
If so, was this intentional or reckless?
Did you have a lawful excuse or reason for the assault?
Do you have a defence of self-defence?

All these questions must be carefully considered before you and your lawyer can determine how you should plead. You must be aware that, should you plead guilty, the offence carries a maximum penalty of 5 years in prison, which is a much higher maximum than for common assault under the Summary Offences Act 1966.

Keep reading below for specific information in relation to Common Law Assault, or follow the link to read about assault offences more generally.

Elements of Common Law Assault

The elements of common law assault are very similar to those in relation to common assault. This was determined in the Victorian Law reported case of R v Patton, Caldwell & Robinson [1998] 1 VR 7. To prove common law assault, the prosecution must establish several elements beyond a reasonable doubt.

For assault involving the application of force:

The accused applied force to the alleged victim’s body;
The application of force was intentional or reckless; and
The application of force was without lawful justification or excuse.

For assault not involving the application of force:

The accused committed an act that caused the complainant to apprehend the immediate application of force to his or her body;
The accused intended his or her actions to cause such apprehension, or was reckless as to that outcome; and
The accused had no lawful justification or excuse for causing the complainant to apprehend the application of immediate force.

If both offences have the same elements, why don’t the prosecution charge the more serious charge all the time?

They often do if the offending relates to domestic violence, where the prosecution cannot establish injury as defined by Victorian Law.

The other reason is that an unlawful/common assault cannot proceed before a jury because it is a summary offence, whereas a common law assault charge is an indictable offence and can proceed in that jurisdiction. In this situation, the prosecution will often lay a common law assault charge regarding more serious examples of the offence.

What is the penalty for common law assault in Victoria?

The base offence for common law assault is liable to level 6 imprisonment, which is a maximum penalty of 5 years imprisonment. See section 320 of the Crimes Act that references the penalty only, not the elements.

Penalty for common law assault of a police officer

Despite section 320, the maximum term of imprisonment for common law assault is level 5 imprisonment, being a maximum of 10 years, if a person commits the assault against a police officer or protective services officer with an offensive weapon readily available (section 320A(1)).

However, if the person commits the assault against a police officer or protective services officer with a firearm or imitation firearm readily available, then the maximum term of imprisonment is level 4 imprisonment, being a maximum of 15 years (section 320A(2)).

A common assault against a police officer or protective services officer in the circumstances above is a category 2 offence under the Sentencing Act 1991 if the assault consisted of or included the direct application of force within the meaning of assault as defined in section 31(2) of the Crimes Act 1958.

Sentencing Patterns

According to the Victorian Sentencing Advisory Council, patterns for common law assault in higher courts show a range of sentencing outcomes.

Between July 2018 and June 2023, 74% of charges resulted in imprisonment, with a median term of 6 months imprisonment. Other sentencing options included community correction orders and fines. These statistics provide insight into how the courts typically approach sentencing for this offence.

Where will my case be heard?

This type of common law assault charge is usually only reserved for matters proceeding in the County Court, or matters relating to domestic violence in the magistrates court. This is because offences under the Summary Offences Act cannot be heard in the County Court before a jury, and the prosecution typically reserves the common law charge for more serious examples of assault.