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Home Blog Affray - Criminal penalties in Australia

Affray - Criminal penalties in Australia

Have you ever encountered an aggressive and belligerent person threatening (no one in particular) down the street? How did you feel? Scared, threatened, helpless, or small? Sometimes it could even be someone waving objects such as a knife or a gun in a careless or nonchalant manner or it could even be people engaged in fisticuffs in public.

Whatever it is, as long as it threatens, or the prosecutor proves that it could threaten the safety of a "reasonable" person, these offences are called Affray. It is simply an offence where there is proof that you could or have attacked another's safety in a public place.

Is an assault the same as an affray?

Assaulting a person is a more serious offence than affray. Where a prosecutor or the Police cannot prove an assault, they usually revert to charging for an affray.

You don't need to hit someone before you are charged for the offence. In many states and territories in Australia, an Affray charge can purely be hypothetical; where the court proves the action would have been potentially threatening to witnesses.

What are the offences that constitute an affray?

What are the offences of Affray?

Usually, to establish the Affray charges, the prosecutor must prove that you;

How the court rules for an affray

When an affray charge is brought before the court, the jury examines all evidence and arguments that the accused willingly participated in such an act before convicting them. Also, more than one person can be convicted of an Affray offence (collective conviction). In situations like melee, riots, public fights or road rage, all offending parties are charged with an Affray offence (a group/collective charge).

The Court will release its verdict considering the following factors;

For hypothetical cases, the court determines if witnesses would fear for their safety if they were present.

What penalties does the court give for an Affray offence?

It is not a "minor" offence if the court finds you guilty of Affray. It can be detrimental to your job, Police and criminal record checks, credit records, and even Visa/Immigration. If you are charged with an Affray offence, you should at once seek the services of experienced lawyers.

There are different penalties the court can impose on Affray offences ranging from community service orders to maximum prison terms. However, the imprisonment term an offender receives depends on the presiding court (District/Local).

If the matter is handled in a Local Court, there is a maximum penalty imprisonment term of 2 years. For all other serious Affray charges, they are handled in a District Court, and the maximum penalty is 10 years.

However, these are just the maximum possible imprisonment terms or punishments for those guilty of affray charges.

Other punishments for an Affray offence are;

Fines

The court can also impose a fine on the accused depending on the severity of the offence. If the court imposes a fine, then a conviction will not be recorded against the accused.

Fines should be remitted at the court registry before 28 days. The fines could be as high as $1,000.

Intensive Correction Order (ICO)

Sometimes a court may impose an Intensive correction order instead of a prison term. However, the prison term must not be more than 2 years.

Also, not all offences may be eligible for an ICO. Some serious offences like murder, manslaughter, terrorism, sexual abuse, and co are exempt.

The court may also order an assessment report but not bound to it before issuing an ICO.

In an ICO, the court can order any of this;

Furthermore, the Court can revoke an ICO if the candidate continually faults all given conditions or fails to appear before the Court or Parole authority.

Community correction order

The presiding court may also decide to give a community correction order to offenders that plead guilty. It is a form of good behaviour bond that replaces a conviction provided the accused abides by the correction order.

In places like New South Wales, it is given instead of a prison term and similar to a prison term, if it is a court imposed order then it will also appear on a national police check NSW.

Some conditions for a community order are;

Variations in the Affray punishments in the different States and Territories

While punishments for Affray offences are consistent in all the States and territories in Australia, there are few variations per some State's Policies.

In NSW, all guilty offenders can face a prison term of up to 10 years. The Crimes Act 1900 (NSW) governs all Affray charges both in private and public spaces.

The Criminal Code 2002 (ACT) stipulates a maximum penalty/imprisonments term of 2 years for all Affray offenders in ACT

The Queensland Act stipulates a maximum imprisonment term of 1 year (12 months) for those found guilty of the offence. Also, the Queensland Penalties and Sentencing Act 1992 may impose a community service order if the offence was in a public space under the influence of an intoxicating substance. These penalties will appear on a police criminal history check in QLD.

The Crimes Act of 1958 (VIC) under section 320 governs all charges relating to assault and Affray charges in Victoria. It is a "serious" criminal offence that can carry a maximum imprisonment term of 5 years. Penalties of Affray will appear on a police record check in VIC.

Can I defend an Affray charge?

If you get charged with Affray, there are many lines of defence your legal team can explore;

Will convictions for Affray show in a Police Check?

A police check contains details of all the candidates' police and criminal records sourced from the criminal database of every State and Territory in Australia. The checks are issued as per state legislation and the spent convictions scheme.

An Affray offence is a serious criminal offence and will show up in a background check result. If you have an imprisonment term imposed, it will show on the police check result.

Candidates can obtain their police check results via Australian National Character Check (ANCC).

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