What is the offence of assaulting a police officer?
The offence of Assaulting a police officer is found at sections 58, 60 and 546C of the Crimes Act 1900.
The offence of Assaulting a police officer is a serious one that our solicitors have often successfully defended. To give yourself the best chance of beating this particular charge, the police will usually need to be discredited. This can be achieved by obtaining CCTV of the incident (this offence often occurs in public), subpoenaing police notes and entries to establish inconsistencies in the police case, and by pointing out differences in the evidence of different police officers.
If the police have acted improperly or illegally – for example they assaulted you first or had no legal basis to arrest you – then evidence of a subsequent assault by you may be excluded and the charge dismissed.
If you are charged with the offence of Assaulting a police officer, your options will normally be to plead guilty or not guilty.
Pleading not guilty
You will be found not guilty of the offence of Assaulting a police officer if the police cannot prove beyond reasonable doubt:
- You assaulted the victim (an assault is the intentional or reckless application of force to the person of another or any act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence, including words, or); and
- The victim was a police officer, other peace officer, customs house officer, sheriff’s officer, prison officer or bailiff; and
- The assault occurred while the victim was acting in the execution of his/her duty. However, it is not necessary to prove that you knew that the victim was an officer on duty. Further, an officer not acting within his formal work hours can be acting in the execution of his duty if the police officer’s conduct is connected with his functions as a police officer and he does not do anything outside the ambit of his duty.
Recklessness in terms of assault is established where the accused foresees the likelihood of inflicting injury or fear, and ignores the risk.
If the police are able to prove the above elements beyond reasonable doubt, you will still be found not guilty if any of the following defences can be established:
Contact our offices in Sydney, Parramatta, Blacktown or Redfern to organise a time for one of our criminal lawyers to advise you of your prospects of successfully defending the charge of Assaulting a police officer.
If you agree that you have committed the offence (and the police are able to prove so), it is best to plead guilty as you will normally receive a discount on sentence and it will demonstrate remorse and contrition. Alternatively, it may be the case that one of our experienced solicitors can negotiate with prosecutors for you to plead guilty to less serious facts or even a less serious charge.
Assaults against police officers have long been treated as serious offences requiring condign punishment. However, the Court of Criminal Appeal has declined to establish a guideline judgement on the basis offences of this kind cover a wide range of behaviour and the sentence will ultimately depend on the nature of the assault.
An offence of Assaulting a police officer pursuant to section 58 or 60 of the Crimes Act carries a maximum penalty of 5 years imprisonment in the District Court and 2 years imprisonment if the matter is dealt with in the Local Court. An offence of Assaulting a police officer pursuant to section 546C of the Crimes Act carries a maximum penalty of 12 months imprisonment and/or a fine of $1,100.00. However, these maximum penalties are typically reserved for the worst offenders.
Our solicitors have a proven track record of not only keeping our clients out of gaol but also, depending on the seriousness of the allegation, having the offence dealt with by way of section 10 of the Crimes (Sentencing Procedure) Act, meaning no conviction will be recorded, there is no other penalty and you will have no criminal record. To find out more about a section 10, click here.
Penalties that a court can impose in NSW are:
- Section 10 – No conviction recorded
- Section 9 – Good behaviour bond
- Community service order
- Section 12 – Suspended sentence
- Intensive correction order
- Home detention
- Full time imprisonment
- Intensive correction orders
Mr Adut represented a young man charged with assaulting two police. During the incident the you man had been tasored. Mr Adut argued that the police had no right to stop the young person whilst he was crossing the road and that the police had in fact assaulted him. The Magistrate found the police to have stopped the young man unlawfully and to have used excessive force in arresting him. The charge was dismissed and the young man is now suing the NSW Police for damages.
Mr Correy represented a young man accused of assaulting a police officer and resisting arrest whilst heavily intoxicated on LSD. Mr Correy had the facts amended from the Accused man punching a police officer to the contact being incidental to a police officer removing the Accused man’s hand from the window of the police car because he was being annoying. It was argued the resisting was consequential on the intoxicated man not understanding why he was being arrested. The Magistrate accepted the assault and resist arrest were at the lowest end and dismissed the charged pursuant to section 10, meaning no conviction was recorded.