Common Assault Charges in NSW

What is common assault?

Crimes Act 1900 (NSW), s 61: whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for 2 years.

Common assault is the base rung of the NSW assault ladder. It covers two kinds of conduct: applying unlawful force to another person — a push, a slap, a grab, spitting — and causing another person to apprehend immediate unlawful violence, with no contact at all. What it does not cover is injury: the moment harm crosses the "more than transient or trifling" line, the charge becomes assault occasioning actual bodily harm under s 59.

It is dealt with in the Local Court, and it is the charge police lay in an enormous range of situations — pub disputes, road-rage incidents, neighbourhood arguments, scuffles that ended in seconds. Common does not mean trivial: it is a criminal charge with a 2-year maximum, and a conviction follows you onto police checks. But it is also the charge with the widest range of good outcomes for people who handle it properly.

"But I never touched anyone" — no physical contact is required

This is the point that surprises almost everyone charged under s 61. Assault, in law, does not require touching. Raising a fist, stepping toward someone aggressively, swinging and missing, brandishing an object — if your conduct intentionally or recklessly caused another person to apprehend immediate unlawful violence, the offence is complete. Words alone are generally not enough, but words plus conduct can be.

The flip side matters just as much: because the apprehension version of the offence lives entirely in conduct and perception, it is highly contestable. What exactly did you do? Was any violence actually imminent? Did the complainant genuinely apprehend it, or reconstruct it afterwards? These are precisely the questions a defended hearing tests — and precisely why "I never touched them" is the beginning of the conversation with your lawyer, not the end of the case.

What the police must prove

To convict you of common assault, the prosecution must prove beyond reasonable doubt:

• You applied force to another person, however slight, or caused them to apprehend immediate unlawful violence;
• You did so intentionally or recklessly; and
• The conduct was without consent and without lawful excuse.

Accidental contact is not assault. Contact within the ordinary give-and-take of daily life is not assault. And conduct in genuine self-defence is not unlawful at all.

Penalties — and the first-offence pathway

The maximum penalty is 2 years' imprisonment and/or a $5,500 fine (50 penalty units). In practice, sentences for common assault span non-conviction orders, fines, and Community Correction Orders; imprisonment is reserved for serious examples, usually with a record behind them.

Section 10 — the outcome without a conviction

For first offenders, the most important two words in this area are section 10. Under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court that finds an offence proved can nonetheless dismiss the charge without recording a conviction — outright, or under a conditional release order with conditions attached. No conviction means no criminal record from the matter, which for employment, travel and professional registration is often what the case is really about.

A section 10 is not automatic and not a loophole. The magistrate weighs the triviality or otherwise of the offence, your character, age, health and record, and the likelihood of reoffending. It is earned by preparation: references that actually say something, evidence of any underlying issue being addressed, an account of the incident that is honest about what happened. For a first offence at the lower end of seriousness, properly prepared, it is a realistic outcome — but every matter turns on its own facts, and no outcome can be promised.

Defences to common assault

• Self-defence — a complete defence where you acted to protect yourself, another person, or property, and your response was reasonable in the circumstances as you perceived them. Once raised, the prosecution must disprove it beyond reasonable doubt.
• Accident or lack of intent — the contact was unintentional and not reckless.
• No apprehension — in no-contact cases, the conduct did not cause any genuine apprehension of immediate violence.
• Lawful excuse or consent — including ordinary social contact and consensual physical activity.
• Identification and reliability — confused, brief incidents produce unreliable accounts; the prosecution's version can be tested.

Charges can also be withdrawn before hearing: written representations to the prosecution, made early by a lawyer who has read the brief, regularly resolve weak or trivial matters without a hearing at all. What never helps is approaching the complainant yourself — that can generate new charges and, in domestic contexts, breach an AVO.

How Lenz Legal approaches common assault charges

Because the stakes are usually about the record rather than the sentence, the first decision in a s 61 matter sets everything else: contest it, negotiate it, or plead and prepare for a non-conviction outcome. Dean Lenz makes that assessment on the brief, early — testing whether the elements are actually made out, whether representations can resolve the charge before hearing, and where a plea is right, building the section 10 case properly rather than hoping for the magistrate's mood.

One caution: if your matter arises from a domestic relationship, it is charged under the same s 61 but lives in a different procedural world — recorded evidence, police-initiated AVOs, and a prosecution that does not stop because the complainant wants it to. That world is covered on our common assault (DV) page.

If you have been charged, or police have invited you in for a chat about an incident — get advice first. Common assault matters are routinely made worse in the interview room and routinely resolved well outside it.

Common assault — your questions answered