Assault

Types of assault charges and penalties

“Common assault”: The basic assault charge

Summary Offences Act 1981, s 9; Crimes Act 1961, s 196

If you’re charged with a basic assault charge – “common assault” – this can either be under:

  • the Summary Offences Act 1981 (section 9), with a maximum penalty of six months’ jail or a fine of up to $4,000, or
  • in more serious cases, the Crimes Act 1961 (section 196), which has a maximum penalty of up to one year’s jail.

If you plead not guilty, you’ll have a trial in the District Court in front of a judge, and you won’t have the right to a jury trial. This is because these are both Category 2 offences (the processes for the four different categories are explained in the chapter “The criminal courts”, under “Overview of criminal procedures”).

Note: It’s quite common for the police to bring a charge under the more serious Crimes Act assault provision, and to then agree with the defendant to reduce it to Summary Offences Act assault if the defendant pleads guilty. (Informally this is sometimes called “plea bargaining”.)

What is an “assault”?

Crimes Act 1961, s 2(1), “assault” definition; Summary Offences Act 1981, s 2(1), “assault” definition

The legal definition of assault is very wide – it covers any situation where you intentionally apply force against another person’s body. It includes when you do this indirectly – by throwing something for example.

An assault can include very minor force. However, the amount of force used will be relevant when the police are deciding whether to charge you – and, if you’re charged and convicted, when the judge is deciding what sentence to give you.

An assault also includes threatening to apply force to another person’s body – but only if you’re able to carry out your threat or if you make the other person believe on reasonable grounds that you can carry it out. The threat can be by a statement, act or gesture (like clenching your fist). This means that aggressive behaviour like, for example, bashing walls around a family member can also potentially amount to an assault, even though you haven’t touched the other person.

An “assault” also includes an attempted assault, so you can be convicted of assault even if you “swing and miss”.

Example: A defendant was drunk in a bar and tried to hit a security guard, unsuccessfully. He was convicted of common assault (Summary Offences Act) and sentenced to two and half months’ jail, including a discount for pleading guilty. He had a very long record of minor offending, and had alcohol and mental-health issues.

Case: [2012] NZHC 3497

What sentence am I likely to get for common assault?

For a “common assault” at the minor end of the scale, you may be able to get a discharge without conviction, as in this example:

Case: [2012] NZHC 2323

  • The defendant had played a very minimal role in an assault by a family group on one of its members. A working solo mother of three with no criminal record, she was studying for a business diploma and hoped to apply for better jobs in the future. The judge decided that the effect of a conviction for such a minor assault would have been out of all proportion to her offence, harming her future job prospects.

For more serious cases of common assault, particularly if you have any previous assault convictions, you may be fined or given a community-based sentence or a prison term:

Cases: [2015] NZHC 161[2015] NZHC 1359[2015] NZHC 2589

  • A defendant was convicted of common assault under the Summary Offences Act and given 100 hours’ community work and six months’ supervision for two uppercut punches to the victim’s head. There were various aggravating and mitigating features that roughly cancelled out: it was a “brazen” assault in front of the police and she had a criminal record; but on the other hand there were no previous assault convictions and it was four years since the last offence, and she’d pleaded guilty and expressed remorse.
  • A defendant in a more serious assault case involving punching and kicking was refused a discharge without conviction and given nine months’ supervision and 100 hours’ community work. She had previous assault convictions, which the judge said argued strongly against getting the discharge. She said she’d just enrolled in a real estate agent’s course, but the judge didn’t give this much weight; he said that it might have been different if she’d already been doing the course for some time and was now about to apply for a real estate agent’s licence.
  • A defendant was given six months’ jail for an unprovoked assault from behind on a stranger. He was charged with common assault under the Crimes Act. Although the assault caused the victim little harm, the defendant had a long criminal record, including other assault convictions.

More serious charges for violent offending

Crimes Act 1961, ss 194, 192, 193, 189(2), 188(2), 189(1), 188(1)

Beyond common assault, there are a range of offences for violent behaviour of increasing seriousness, including:

  • male assaults female (with a maximum penalty of two years’ prison)
  • aggravated assault (maximum penalty – three years)
  • assault with intent to injure (maximum penalty – three years)
  • intentionally injuring a person (maximum penalty – five years)
  • wounding with intent to cause injury (maximum penalty – seven years)
  • injuring with intent to cause grievous bodily harm (maximum penalty – 10 years)
  • wounding with intent to cause grievous bodily harm (maximum penalty – 14 years).

Case: [2015] NZHC 2603

Example: A defendant was jailed for 10 months after attacking his employer, who had only one leg and needed crutches in daily life. He had pushed the employer to the ground and then hit him approximately 12 times with one of the steel crutches, hard enough to damage the crutch. The defendant pleaded guilty to assault with intent to injure (and also to a charge of threatening to cause grievous bodily harm). He had a recent previous assault conviction.

Family violence: Sentencing in specialist Family Violence Courts

A large proportion of assault charges involve family violence. Some District Courts have specialist Family Violence Courts (including in Waitakere, Manukau, Auckland City, Lower Hutt, Masterton and Porirua), and these are better equipped to deal with the specific character of this type of offending.

Staff at these specialist courts work with people who have experienced domestic violence to make sure they and their children are safe, and will put them in touch with other government agencies and community services that can help, like Women’s Refuge and Stopping Violence programmes. The Family Violence Courts deal with domestic violence cases in block sittings, with specialist judges, prosecutors and victim advisors, and they have close working relationships with the key community support services.

The Family Violence Courts also encourage defendants to address their issues – for example, by taking part in domestic violence programmes or drug/alcohol counselling.

Other District Courts that don’t have those specialist resources and expertise will generally treat family violence offences in the same way as assaults outside family settings.

Possible defences to assault charges

Self-defence

What do I have to show in order to claim self-defence?

Crimes Act 1961, s 48

You’ll have a good defence to an assault charge if you were defending yourself or someone else. However, the amount of force you use has to be reasonable, given what you believed the situation to be.

So even if you were mistaken about the situation – for example, about whether the other person was going to attack you – you may still be able to claim self-defence. What’s important is whether it was an honest belief, not whether your belief was objectively correct.

Case: [2010] NZCA 44

But if your belief was mistaken, the force you used must still be reasonable when measured against your mistaken view of the situation.

You don’t have to be reacting to an attack that’s already taken place – you can use force to prevent an attack that has been threatened and you believe is about to happen. In other words, you can use pre-emptive force.

Cases: (1989) 4 CRNZ 674 (CA) – (2003) 20 CRNZ 319 (CA)

Just because you’re angry or wanting revenge at the time, this doesn’t necessarily mean you aren’t acting out of fear of a potential assault, and therefore you may still be able to claim self-defence.

What does “reasonable” force mean when arguing self-defence?

What is reasonable depends on how immediate and how serious the force or threat against you was, and what chance you had to protect yourself without using force yourself – for example by backing away from the threat.

Case: (1989) 4 CRNZ 674

But although the force you use has to be reasonable in the situation as you saw it, this doesn’t mean it has to be in reasonable balance with the force or threat as you saw it. For example, you may not have had a choice about the means of defending yourself, and you may have used a knife that was at hand against someone who didn’t have a weapon. The courts have said that if you did what you honestly and instinctively thought was necessary to defend yourself from an attack, that would be strong evidence that what you did was “reasonable”.

Cases: (2003) 20 CRNZ 319 (CA) – [1971] AC 814 (PC)

Do I have to prove I was acting in self-defence?

No. It’s not up to you to prove you were acting in self-defence. All you have to do is point to some evidence on which a self-defence claim could be based; once you do that, the prosecution then has to prove beyond a reasonable doubt that you weren’t acting in self-defence. If you don’t raise the issue, then the prosecution doesn’t have to address the question.

Case: [1975] 1 NZLR 760 (CA)

In other words, you just have to raise the question, based on some real evidence – it’s then the prosecution’s job to exclude the defence.

Defending your home or possessions

Using force to defend your home

Crimes Act 1961, s 56

Cases: [2014] NZHC 41 [2015] NZHC 1128

You’re justified in using reasonable force to prevent a person trespassing on your property, or to remove them.

However, you’re not allowed to hit or otherwise “strike” the other person, or cause them “bodily harm”. Pushing, shoving, fending off or obstructing the other person is allowed, so long as it’s proportionate and reasonable. Injuries to the other person like minor bruising will be acceptable, but any harm to them that’s more than “merely transitory and trifling” isn’t acceptable.

You’re also justified in using “necessary” force to prevent someone breaking into your home, if you believe on reasonable and probable grounds that the other person doesn’t have any legal justification for breaking in.

Crimes Act 1961, s 55

Using force to defend your possessions

Crimes Act 1961, s 53

You’re justified in using reasonable force to defend your possessions – this applies to any “movable thing”. “Movable” means what it says – it covers anything other than land and buildings, so it can include anything from your watch to your car.

This defence covers you if you do it under a “claim of right” – which means if you genuinely believe you have a legal right to the property. You can use this defence even if you’re mistaken about having a legal right to the property. It also doesn’t matter if it’s unreasonable for you to have this mistaken belief.

Crimes Act 1961, s 53

Case: [2008] NZSC 3

To put up a “claim of right” defence, you only have to point to some evidence that raises this as a possible defence. It’s then the prosecution’s job to prove beyond a reasonable doubt that you didn’t have a genuine belief. It’s not your responsibility to prove that you had this belief.

Case: (1984) 1 CRNZ 576 (HC)

To use this defence, you’re not allowed to have hit or otherwise “struck” the other person, or caused them “bodily harm”. Pushing, shoving, fending off or obstructing the other person is allowed, so long as it’s proportionate and reasonable.

Crimes Act 1961, s 53

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