Common Assault

About common assault in NSW

Common assault is an offence under section 61 of the Crimes Act 1900 (NSW). It is the least serious of the assault offences in the Crimes Act, but it is still a criminal offence that can result in a conviction, a fine, or imprisonment.

The charge can be brought as a personal violence offence or as a domestic violence (DV) offence — referred to in court lists as a “T2 common assault (DV)” charge — where the accused and complainant share or have shared a domestic relationship as defined in the Crimes (Domestic and Personal Violence) Act 2007. The maximum penalty is the same in both contexts, but DV-related matters attract a different sentencing approach and typically include an accompanying Apprehended Domestic Violence Order (ADVO).

What does section 61 of the Crimes Act 1900 say?

Section 61 of the Crimes Act 1900 (NSW) provides:

“Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for 2 years.”

Elements of the offence

To convict, the prosecution must prove beyond a reasonable doubt that:

1. The accused caused another person to fear immediate and unlawful violence, or the accused made physical contact with another person; and
2. The other person did not consent; and
3. The accused’s actions were intentional or reckless.

Importantly, the prosecution does not have to establish that actual physical contact or any injury occurred. A reckless common assault can be proven where the accused realised the other person might fear immediate unlawful force, but went on and took that risk anyway.

Behaviour that may constitute common assault

Examples of behaviour that may amount to common assault include:

• striking another person by punching, slapping, kicking, wrestling or grabbing them
• a slap or a light blow that does not cause actual pain
• striking another person with an object that does not cause injury
• spitting on another person
• swinging a fist at another person without striking them
• throwing an object at another person that misses
• brandishing a weapon with the intent to frighten another person
• threatening to inflict physical harm

Maximum penalty

A common assault under section 61 of the Crimes Act 1900 (NSW) carries a maximum penalty of:

• 2 years imprisonment (when dealt with on indictment in the District Court), or
• $5,500 fine and/or 2 years imprisonment when dealt with summarily in the Local Court (which is how the great majority of these matters are finalised).

A common assault is Table 2 under Schedule 1 of the Criminal Procedure Act 1986, meaning it is presumptively dealt with in the Local Court unless the Director of Public Prosecutions elects otherwise.

Sentencing options in NSW

A magistrate or judge sentencing a person convicted of common assault in NSW has a wide range of options available under the Crimes (Sentencing Procedure) Act 1999, including:

• Section 10(1)(a) dismissal — no conviction recorded
• Conditional Release Order (CRO) — with or without conviction
• Fine — up to $5,500
• Community Correction Order (CCO) — up to 3 years, with conditions
• Intensive Correction Order (ICO) — a custodial sentence served in the community, up to 2 years
• Full-time imprisonment — up to 2 years

The actual outcome depends heavily on the objective seriousness of the offence (degree of violence, injury, weapon use, premeditation) and on the accused’s subjective case (prior record, plea, remorse, rehabilitation steps, character).

Common assault (DV) — domestic violence-related charges

Where the alleged assault occurs in a domestic relationship — a spouse, partner, ex-partner, family member, household member, or person with whom the accused has or had an intimate personal relationship — police will charge it as “common assault (DV)” under section 61, and almost always issue an Apprehended Domestic Violence Order (ADVO) at the same time.

DV-related common assault matters are treated more seriously on sentencing. Under section 4A of the Crimes (Sentencing Procedure) Act 1999, the court must record the offence as a “domestic violence offence” and must impose either a full-time, intensive correction or community correction order, or order supervision, unless the court records its reasons for not doing so.

If you are charged with a DV-related common assault, the strategy needs to manage both the criminal charge and the ADVO simultaneously. See our Domestic Violence and Breach of ADVO pages for more.

Defences to common assault

Defences and arguments that may be raised include:

• Self-defence — the accused was defending themselves, another person, or their property, and the response was reasonable in the circumstances they perceived (sections 418–423 Crimes Act 1900)
• Lawful correction of a child — a parent may, in narrow circumstances, use reasonable force to discipline a child (section 61AA Crimes Act 1900)
• Consent — for example, contact during a sporting contest played within the rules
• Duress — the accused was acting under threat
• Mistaken belief — there was no intention to cause fear or apprehension
• Accident — the contact was unintentional
• No fear in fact — the complainant did not in fact apprehend immediate violence
• No reasonable apprehension — a reasonable person in the complainant’s position would not have apprehended violence
• The conduct didn’t occur, or is exaggerated — challenging the prosecution case on the facts

A diversion under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 may also be available where the accused has a relevant mental health or cognitive impairment that contributed to the offending — see our Domestic Violence page for an example outcome.

Where is common assault prosecuted in NSW?

Most common assault charges are finalised in the Local Court. In greater Sydney and the Illawarra, that means courts such as Liverpool, Campbelltown, Fairfield, Bankstown, Parramatta, Wollongong, Port Kembla, Shellharbour and Nowra. Karnib & Co. appears in each of these courts. If the DPP elects to have the matter dealt with on indictment, it is heard in the District Court.

Common assault FAQs

Can I get a section 10 for common assault in NSW?

A section 10 dismissal (or a Conditional Release Order without conviction) is possible for common assault. It is more commonly granted where the offending is at the lower end of objective seriousness, the accused has no relevant prior record, has pleaded guilty early, has shown insight and taken rehabilitative steps, and where a conviction would have disproportionate consequences (for example, on employment or visa status). For DV-related common assault, the bar is higher because the court must consider the principle of general deterrence and the safety of the protected person.

What is “common assault DV T2”?

“T2” refers to Table 2 offences under the Criminal Procedure Act 1986 — these are offences that are dealt with summarily in the Local Court unless the DPP elects otherwise. “DV” indicates the matter is recorded as a domestic violence offence. A “common assault DV T2” charge is therefore a domestic-violence-related common assault under section 61 of the Crimes Act 1900, listed for summary disposal in the Local Court.

How long does a common assault charge stay on my record in NSW?

A conviction for common assault is recorded on your criminal record. Under the Criminal Records Act 1991 (NSW), most convictions become “spent” after 10 years from the date of sentence if there are no further offences in that time — but there are exceptions for certain sex offences, body corporates and prison sentences over 6 months. A section 10 dismissal or a CRO without conviction does not result in a conviction on your record.

Do I have to go to court?

Yes. A common assault charge — even at the lowest end — requires a Local Court appearance. You can be represented and do not always need to physically appear at every mention, but the matter cannot be finalised without going through court.

Can the charge be withdrawn?

Yes, in some cases. Karnib & Co. has had common assault charges and ADVOs withdrawn before any court appearance through formal representations to police prosecutors — particularly where evidentiary issues exist, the complainant withdraws their support, or the public interest does not favour prosecution. See, for example, our Common Assault & Destroy Property — charges dismissed pre-court case study.

Charged with common assault? Contact us today

Common assault matters can move quickly and decisions made in the first 48 hours — what you say to police, whether you participate in an interview, whether to apply for bail variation, how you instruct your lawyer — meaningfully affect the outcome. Karnib & Co. acts for clients facing common assault and DV charges across NSW from our Liverpool and Wollongong offices.

Contact us today for a free, confidential initial consultation. We are available 24/7 for urgent matters and bail applications.