Common Assault Charges
Clear advice on penalties, defences and what to expect in the NSW Local Court.
Common assault is created by section 61 of the Crimes Act 1900 (NSW) and is the broadest and most frequently charged assault offence in the state. It covers any act — or in some cases a threat — that intentionally or recklessly causes another person to fear immediate and unlawful violence, and it does not require any physical injury to be proven. A push, a raised fist, a thrown object that misses, or even words accompanied by a threatening gesture can all found a charge, which is why common assault matters range enormously in seriousness.
Because the offence is defined so broadly, the way a common assault charge is prosecuted and defended usually turns on the specific sequence of events: who did what first, whether the complainant genuinely feared immediate violence, and whether the accused acted in self-defence or was simply present during a chaotic incident. Body-worn video, CCTV, and the statements taken by police in the hours after the incident often become the central evidence in these matters.
Common assault is dealt with in the Local Court and, while it carries a lower maximum penalty than assault occasioning actual bodily harm or more serious violence offences, a conviction still results in a criminal record and can carry real consequences for employment, travel and, in domestic contexts, any related apprehended violence order. Getting advice early — before a plea is entered — is the best way to protect both your immediate liberty and your longer-term record.
Penalties
What you could be facing
| Penalty | Maximum | Notes |
|---|---|---|
| Common assault (s61 Crimes Act 1900) | 2 years imprisonment and/or a fine of 50 penalty units | Dealt with in the Local Court. A non-conviction outcome under section 10 of the Crimes (Sentencing Procedure) Act may be available for lower-level, first-time matters, particularly where there is no lasting injury and genuine provocation or a heated context is present. |
| Common assault — domestic violence related offence | 2 years imprisonment and/or a fine of 50 penalty units | Where the offence is flagged as domestic violence related, the court applies additional considerations under the Crimes (Domestic and Personal Violence) Act 2007, and an apprehended domestic violence order is commonly sought alongside the criminal charge. |
| Aggravating factors | Sentence increased within the same maximum | Factors such as the vulnerability of the victim, use of an object, targeting of a person performing a public duty, or a prior record of violence do not change the charge but can significantly increase the sentence imposed within the 2-year maximum. |
Possible Defences
Ways this charge can be challenged
Self-defence
A person is not guilty of common assault if they believed their actions were necessary to defend themselves or another person, and the response was a reasonable one in the circumstances as they perceived them. This is one of the most commonly raised defences in assault matters arising from mutual altercations, and once it is properly raised on the evidence, the prosecution must prove beyond reasonable doubt that the accused was not acting in self-defence.
Absence of intent or recklessness
Common assault requires that the accused either intended to cause the complainant to fear immediate violence, or was reckless as to whether that fear would result. Where contact was accidental, where there was no realistic apprehension of violence, or where the accused could not have foreseen that their conduct would cause fear, the offence is not made out.
No immediate apprehension of violence
The complainant must have feared immediate and unlawful violence at the time of the alleged act. Threats of future harm, or conduct that could not realistically have caused an immediate fear in the circumstances — for example, a statement made over the phone with no prospect of imminent contact — fall outside the definition of common assault.
Consent
In limited circumstances, such as contact sport played within the rules of the game, or conduct consented to by the other person, consent can be a defence to what would otherwise be an assault. This defence is applied narrowly and does not extend to conduct that goes beyond what was actually agreed to.
What Happens Next
The Local Court process
- 01
Following a complaint or police attendance at the scene, an accused person is typically either arrested and bail-assessed or issued with a court attendance notice requiring them to appear at the Local Court on a set date.
- 02
The matter is first listed for mention. This is where a plea of guilty or not guilty is entered, and where bail conditions, if any, are reviewed and can be varied.
- 03
If a not guilty plea is entered, the prosecution serves a brief of evidence, including witness statements, any CCTV or body-worn video, and medical evidence if injuries were alleged, and the matter is listed for a defended hearing.
- 04
At the defended hearing, the prosecution must prove the charge beyond reasonable doubt, and the defence has the opportunity to cross-examine witnesses, tender contrary evidence and raise any available defence such as self-defence.
- 05
If a guilty plea is entered, or the charge is proven at hearing, the matter proceeds to sentencing, where the Magistrate considers the objective seriousness of the conduct, any injury caused, the accused’s record, and personal circumstances before imposing a penalty.
- 06
Where the matter involves a domestic relationship, an application for an apprehended domestic violence order is often heard around the same time, and the outcomes of both proceedings are considered together by the court.
Sentencing
What courts consider at sentencing
Magistrates start by weighing the objective seriousness of the conduct itself — a single push during a heated argument sits very differently to a sustained pattern of aggressive contact, the use of an object, or conduct directed at a vulnerable person or someone performing a public duty such as a paramedic or retail worker. Even though common assault does not require proof of injury, any injury that did occur, however minor, will still be taken into account.
Subjective factors carry real weight in these matters: whether this is a first offence or there is a relevant prior record, whether the person has shown genuine insight and remorse rather than minimising what happened, and whether steps have been taken since the incident — such as completing an anger management or behavioural change program — that demonstrate the conduct is unlikely to be repeated. An early guilty plea also attracts a sentencing discount and is often the single biggest factor in whether a non-conviction outcome remains realistic.
Where the charge is flagged as domestic violence related, courts apply additional scrutiny under the Crimes (Domestic and Personal Violence) Act 2007, and a non-conviction outcome becomes considerably harder to secure than in a one-off incident between strangers or acquaintances. Good character references, stable employment, and evidence of the incident being genuinely out of character remain relevant even in that context, but expectations are higher.
Next Steps
If you've just been charged
Don't contact the complainant, directly or through a friend or family member — even an apology sent with good intentions can be treated as intimidating a witness or breaching bail or AVO conditions, and can seriously damage your case.
Don't agree to a formal police interview or give a written statement before getting legal advice — anything you say, including comments made informally at the scene, can be used as evidence against you.
Write down your own account of exactly what happened as soon as you can, while the details are still fresh — this helps your lawyer properly assess whether self-defence, lack of intent, or another defence is available.
Identify and try to preserve any evidence that supports your account, particularly CCTV footage, which many venues and homes overwrite within days, along with the names and contact details of any independent witnesses.
Get legal advice before your first court date. The plea you enter and the material put before the Magistrate at that first mention can shape whether the matter ends in a non-conviction outcome or a recorded conviction.
Frequently Asked Questions
Common questions
Not necessarily. Where the conduct is at the lower end of seriousness and there is no significant injury, a Local Court Magistrate can impose a non-conviction outcome under section 10 of the Crimes (Sentencing Procedure) Act, which avoids a criminal record. Whether this is realistic depends heavily on your record, the circumstances of the incident and the material put before the court.
Yes. Self-defence is available even where the accused was the person eventually charged, provided their response was proportionate to the threat they genuinely believed they faced. Evidence such as CCTV, independent witnesses and the sequence of events leading up to the incident is often critical to establishing this defence.
No. Common assault can be committed by an act that causes a person to fear immediate and unlawful violence, even without any physical contact taking place, such as a raised fist or a sudden lunging movement. Actual physical contact resulting in injury is more likely to be charged as assault occasioning actual bodily harm, a more serious offence.
Domestic violence related common assault charges are treated seriously by police and the courts, and are usually accompanied by an application for an apprehended domestic violence order. This can affect bail conditions, contact with family members, and access to a shared home, so early advice is particularly important in these matters.
A complainant’s wishes are one factor police and prosecutors consider, but the decision to withdraw a charge rests with the prosecuting authority, not the complainant alone. Representations can be made to police or the Office of the Director of Public Prosecutions setting out reasons why continuing the prosecution may not be in the public interest, but there is no guarantee of a withdrawal.
It is generally advisable to seek legal advice before participating in any recorded interview or making a statement to police, as anything said can be used in the prosecution case. You are entitled to obtain legal advice first, and doing so does not imply guilt.
Related Offences
You may also be looking for
Going to court?
Speak with our team today for a free first conference and clear, fixed-fee advice on your matter.
Call 0414 444 474