‘Assault’ is defined in section 187 of the Criminal Code Act 1983 (NT). The most typical form of Assault is constituted by the application of direct or indirect force to a person without their consent. Commonly Assaults involve one person striking another, however you can Assault someone by pushing them, throwing an object at them, spitting on them, or initiating any form of non-consensual force that they might reasonably object to.
A person can also be Assaulted through the threatened application of force. The person making the threats has to have the actual or apparent present ability to carry out those threats. An example of an Assault of this nature would be one person feigning throwing a rock at another person at close range but not releasing the rock from their hand.
An Assault charge will often be accompanied by one or more aggravating circumstances. This is referred to as an ‘Aggravated Assault’. This offence carries a 5 year maximum penalty and attracts mandatory sentencing laws. It is one of the most common offences in the Northern Territory for which people are sent to prison.
A number of possible defences can operate to have an Assault charge withdrawn or dismissed, for example, self-defence. It is important that the available defences are considered from the beginning of the proceedings so that the strongest possible case can be advanced on behalf of the defendant.
Murder and Manslaughter
Murder is the intentional killing of another human being. Murder can also be committed where a person intends to cause ‘serious harm’ to another and that person dies as a result.
Manslaughter can be committed when a person recklessly or negligently causes the death of another. Murder charges can also be reduced to Manslaughter where certain ‘partial defences’ such as ‘provocation’ and ‘diminished responsibility’ are found to have been present in the offending.
Other ‘complete defences’ to murder can be used in order to gain an acquittal. It is not unlawful to take another person’s life in self-defence. This would only apply in limited circumstances, and where the conduct which led to the loss of life was an objectively reasonable response to the circumstances which presented themselves.
Both Murder and Manslaughter carry life imprisonment as a maximum penalty and can only be determined in the Supreme Court. A person found guilty of murder must be sentenced to imprisonment for life. Therefore the main focus of the sentencing Court typically becomes the length of time to be served before the offender might be eligible for release on parole. Section 53A of the Sentencing Act 1995 (NT) requires a standard non-parole period of at least 20 years, and a Court can only impose a shorter non-parole period if ‘exceptional circumstances’ are found to apply.
If you or a loved one are facing charges of this nature it is essential that high-quality legal advice is sought at the earliest opportunity.
Self-defence is one of the most common defences relied upon in the Northern Territory courts. It is a ‘complete defence’ in the sense that if this can be established in relation to a charge then that charge will be dismissed.
There is both a subjective and objective component to self-defence. Subjectively, the accused must have held a genuine belief that their conduct is necessary to protect their safety or the safety of another person.
If this is established the Court will then consider whether the accused’s conduct was an objectively reasonable response to the circumstances as they perceived them. Any use of violence by the accused person must be proportionate to the threat as they perceived it. Essentially the Court will put themselves in the place of the accused and consider if a reasonable person might act in the same manner.
If the Court accepts that the person held this genuine concern for their safety and that their actions were reasonable in the circumstances then the person will be acquitted. Early consideration and management of the evidence is vital to ensuring a self-defence case is properly put to the Court.
‘Serious Harm’ is defined as an injury that endangers a person's life or is likely to be significant and longstanding. In considering this a Court will take into account the likely outcome had the victim not received medical assistance.
If a person intentionally or recklessly engages in an unlawful act which causes serious harm to a person then they commit the offence of Unlawfully Causing Serious Harm under section 181 of the Criminal Code Act 1983 (NT).
A number of potential defences apply to this charge including self-defence.
This offence carries 14 years imprisonment as a maximum penalty and the final outcome can only be determined by the Supreme Court. It also attracts the most serious mandatory sentencing provisions for offences of violence. Even for a first time offender, three months imprisonment is mandated unless ‘exceptional circumstances’ are demonstrated. For a person with a prior offence of violence on their criminal history, 12 months in prison is the minimum penalty, unless the Court finds that ‘exceptional circumstances’ exist to justify a lesser sentence.
For any person charged with an offence of this seriousness, quality legal advice and representation from an early stage is highly recommended.
Sexual Intercourse Without Consent is commonly referred to as ‘sexual assault’ or ‘rape’. It carries life imprisonment as the maximum penalty.
‘Sexual Intercourse’ has a broad definition. It includes the insertion to any extent of any part of the body or an object into the vagina or anus. It also includes the acts of cunnilingus or fellatio (oral sex). The definition of the vagina includes the external female genitalia so the penis, other body part, or object need not be inserted into the vaginal canal for an offence to occur.
‘Consent’ requires a free and voluntary agreement to engage in the particular sexual behaviour. The legislation specifically states that each of the following would not be consensual:
Where the person submits because of force, fear of force or fear of harm of any type to themself or another person;
Where the person submits because they are unlawfully detained;
Where the person is asleep, unconscious or so affected by alcohol or another drug as to be incapable of freely agreeing;
Where the person is incapable of understanding the sexual nature of the act;
Where the person is mistaken about the sexual nature of the act or the identity of the other person;
Where the person mistakenly believes that the act is for medical or hygienic purposes;
Where the person submits because of a false representation as to the nature or purpose of the act.
For a person to be found guilty it must be shown that they either knew the victim did not consent or they were reckless as to whether the victim was consenting. Recklessness in this context includes failing to consider whether or not the other person was consenting.
If a person engages in non-consensual conduct with sexual connotations which does not meet the definition of ‘sexual intercourse’ they can still be charged with committing an act of gross indecency or with indecent assault.
If you or a loved one are facing charges of this nature it is essential that high quality legal advice is sought at the earliest opportunity.
This content is intended as general legal information only and should not be considered as legal advice relevant to any particular case. Territory Criminal Lawyers takes no responsibility or liability for any legal decisions based in whole or in part upon this legal information.