Common assault — also called unlawful assault — is the most frequently charged assault offence in Victoria, and one of the most defensible. It is a summary offence under section 23 of the Summary Offences Act 1966, dealt with in the Magistrates’ Court. McMahon Criminal Defence Lawyers regularly defends these charges at the Ballarat Magistrates’ Court and across regional Victoria on fixed fees.
What is Common Assault?
Section 23 of the Summary Offences Act 1966 simply provides that any person who unlawfully assaults or beats another person is guilty of an offence. The conduct can take two forms: applying unlawful force to another person (even minor contact), or causing another person to fear that immediate unlawful force will be applied to them. Crucially, no injury is required, and physical contact is not always necessary — a threatening gesture or words accompanied by an apparent ability to carry out the threat can be enough.
What the Prosecution Must Prove
- the accused applied force to, or caused the apprehension of immediate force in, the complainant;
- the conduct was intentional or reckless;
- it was without the complainant’s consent; and
- it was without lawful excuse (for example, not in self-defence).
Penalty
The maximum penalty for common assault is 15 penalty units or 3 months’ imprisonment. As the least serious assault offence, it is often resolved well below the maximum — by fine, good behaviour bond, or, in suitable cases, without a criminal record. Where an injury is alleged, or a prescribed intent (such as a child or female victim under section 24, or intent to commit an indictable offence), the matter may instead be charged as a more serious, indictable offence.
Avoiding a Criminal Record
Because common assault sits at the lower end of seriousness, it is frequently a strong candidate for diversion — which resolves the charge with no finding of guilt — or for a finding of guilt without conviction. Securing these outcomes often depends on early, well-prepared negotiation with the prosecution.
Defending a Common Assault Charge
- Self-defence — the force used was reasonable and proportionate in the circumstances as the accused perceived them;
- No assault occurred — the contact was not unlawful, was consented to, or was accidental;
- Lack of intent or recklessness;
- Factual dispute or wrong identification; and
- Negotiated resolution — withdrawal or diversion through case conferencing.
If you have been charged with common assault, contact us for advice. Your matter will usually begin with a mention hearing, and early advice can make the difference between a conviction and a clean record. See also our main assault offences page.
Frequently Asked Questions
Can I be charged with common assault if I didn’t hurt anyone?
Yes. Common assault does not require any injury. Applying unlawful force — even minor contact — or causing someone to fear immediate unlawful force can be enough, and in some cases no physical contact is necessary at all.
What is the maximum penalty for common assault in Victoria?
The maximum is 15 penalty units or 3 months’ imprisonment under section 23 of the Summary Offences Act 1966. As the least serious assault offence, it is usually dealt with well below the maximum, and a criminal record can often be avoided.
Is common assault the same as unlawful assault?
Yes. The two terms refer to the same offence under section 23 of the Summary Offences Act 1966 — the section is headed ‘common assault’ but uses the words ‘unlawfully assaults’. It should not be confused with the more serious indictable common law assault.
Can I get diversion for common assault?
Often, yes. Common assault is frequently suitable for the Criminal Justice Diversion Program, which resolves the charge without any finding of guilt, provided the prosecution consents and the matter is appropriate. Early negotiation improves the prospects.
Is self-defence a defence to common assault?
Yes. If you used reasonable and proportionate force to defend yourself or another person, that is a complete defence. Whether self-defence is available depends on the specific circumstances, which is why early legal advice is important.
Get Expert Legal Advice — Fixed Fees, No Surprises
McMahon Criminal Defence Lawyers provides experienced, fixed-fee representation for this charge and all criminal matters, appearing at the Ballarat Magistrates’ Court and across Victoria. Contact us for a free, confidential initial consultation.
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