Assault or Resist a Police Officer

Offence DefinitionKey Offence ElementsCommon DefencesPotential Penalties

Assaulting a police officer is a serious criminal offence in Australia. It applies when a person intentionally or recklessly assaults a law enforcement officer while they are carrying out their official duties.

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Serious Consequences for Assaulting, Resisting or Hindering a Police Officer in NSW

In New South Wales (NSW), assaulting, resisting, or hindering a police officer in the execution of their duties is a serious criminal offence. The law aims to protect law enforcement officers from harm and interference while they carry out their responsibilities to maintain public order and safety.

Whether the incident involves physical assault, active resistance during arrest, or obstructing police during an investigation, the penalties can be significant, including imprisonment. This article outlines the legal framework, penalties, and defence relevant to this offence in NSW.

Brightstone Defence has a proven track record in defending clients facing charges for assaulting, resisting, or hindering police officers. We focus on strategic, practical solutions tailored to your case.

What is Assault or Resist a Police Officer?

Under Section 60 of the Crimes Act 1900 (NSW), it is an offence to assault, stalk, harass, or intimidate a police officer while they are executing their duty. The penalties for this offence depend on the severity of the assault:

• Basic offence: Up to 5 years’ imprisonment
• If actual bodily harm is caused: Up to 7 years’ imprisonment
• If grievous bodily harm is caused or with intent to cause harm: Up to12 years’ imprisonment

Courts treat assaults on police officers with significant seriousness due to the nature of their role in maintaining public order.

The offence of assaulting a police officer applies to various actions, including:

• Physically attacking or making unlawful contact with an officer
• Spitting at or throwing objects at an officer
• Using threats or intimidation to hinder an officer’s duties
• Any form of harassment intended to obstruct law enforcement

The law protects police officers from any form of interference while they are performing their official duties, including making an arrest, conducting an investigation, or responding to an emergency.

Under this section, it is an offence to:

• Assault a police officer while they are exercising their duties
• Resist or hinder a police officer in the execution of their duties
• Throw a missile at a police officer
• Cause actual bodily harm to a police officer

It is also an offence to commit these acts knowing that the victim is a police officer, and while the officer is acting in the execution of their duty, whether on or off duty.

Elements the Prosecution Must Prove

To convict a person of assaulting a police officer, the prosecution must establish beyond a reasonable doubt that:

• An assault occurred – The accused engaged in an act of physical force or intimidation against an officer.
• The victim was a police officer – The person assaulted was an active-duty police officer at the time of the incident.
• The officer was acting in the course of their duty – The officer was performing a lawful function under their authority.
• Intent or recklessness – The accused intended to assault the officer or acted recklessly without regard for the consequences.

The prosecution must also prove that the police officer was not acting unlawfully or using excessive force at the time of the incident.

Possible Defences

There are several legal defences available for those charged with assaulting a police officer, including:

• Self-Defence – If the accused acted in self-defence against unlawful or excessive force by the officer.
• Duress – If the accused was forced to commit the act under threats of harm.
• Lack of Intent – If there was no intention to assault the officer, or the act was accidental.
• Unlawful Conduct by Police – If the officer was acting outside their legal authority or using excessive force, the defence may argue that the accused was responding to unlawful conduct.

A skilled defence lawyer can assess the case and determine the best strategy to challenge the charges.

Potential Penalties

The penalties for assaulting a police officer vary depending on the severity of the offence, including:

• Conditional Release Order (CRO) – A good behaviour bond without conviction
• Community Correction Order (CCO) – A supervised order with conditions
• Intensive Correction Order (ICO) – A custodial sentence served in the community
• Imprisonment – A custodial sentence served in prison

The sentencing outcome depends on factors such as the nature of the assault, prior convictions, and mitigating circumstances.

Legal Process
& Options

The legal process for assaulting a police officer generally begins with an arrest and charge, followed by court proceedings in the Local or District Court depending on the seriousness of the offence. The prosecution must prove the elements beyond a reasonable doubt, and the accused has the right to present a defence or enter a plea.

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Pleading
Not Guilty

If you believe you did not commit the offence or there is insufficient evidence against you, you can plead not guilty. Your legal team may challenge the prosecution’s case by:

• Examining the officer’s conduct during the incident
• Arguing that the assault did not occur as alleged
• Establishing a legal defence, such as self-defence or lack of intent

If the prosecution cannot prove the charges beyond a reasonable doubt, you will be found not guilty and the charges will be dismissed.

Pleading
Guilty

If you admit to the charge, you may choose to plead guilty. Doing so may result in a reduced sentence, as courts often consider an early plea as a sign of remorse. The court may also consider mitigating factors such as:

• A previously clean criminal record
• Demonstrating remorse and cooperation with authorities
• The objective seriousness of the offending
• Subjectives of the offender
• Evidence of rehabilitation or character references

Depending on the case, a lawyer may negotiate for a lesser penalty, such as a conditional release order instead of imprisonment.

Assault offences explained

There are three basic types of assault offence set out in law – common assault, actual bodily harm (ABH) and wounding / grievous bodily harm (GBH). They are primarily defined by the harm caused to the victim – with common assault at the lower end of harm and GBH at the upper end.

They cover everything from threatening words to a severe physical attack that leaves the victim permanently disabled.

This post will outline a short summary of these three types of assault.

Common assault (section 39, Criminal Justice Act 1988)

A person is guilty of common assault if they either inflict violence on another person – however slight this might be – or make that person think they are about to be attacked.

They do not have to be physically violent – for example, threatening words or a raised fist could lead the victim to believe they are going to be attacked – and that is enough for the crime to have been committed. Other acts like spitting at someone may also classed as common assault.

The offence covers both intentional and reckless acts.  For example, the offender may not have intended to cause the victim to think an attack was imminent but if they behaved in way that was likely to make the victim think they were about to be attacked, and they didn’t care what effect that behaviour would have, the offender is guilty of the offence.

If violence is used in a common assault, it is called a “battery” and the perpetrator would be charged with “assault by beating”. This does not however, mean that the victim was actually ‘beaten up’ or even hit or kicked – it could be that they were pushed, grabbed or spat at. The victim may not therefore have suffered any physical injury, and if any injury was caused, it would need to be quite minor to fall under common assault.

There are some situations in which actions that might fall under the definition of ‘assault’ are lawful, for example in medical interventions, in self-defence, or where it is part of a contact sport like rugby.

The maximum sentence allowed by law for common assault is six months imprisonment, and cases can only be heard in the magistrates’ court. If the assault is racially or religiously aggravated, the maximum sentence is two years imprisonment and cases can be heard in the Crown Court as well.

There are two other offences related to common assault – assault with intent to resist arrest and assault on a police constable in execution of his duty.

Assault with intent to resist arrest (section 38 Offences against the Person Act 1861)

This offence happens when someone commits a common assault at the time of a lawful arrest or detention with the aim of resisting or stopping the arrest, whether it is them or someone else being arrested. The victim need not be a police officer and could be a private citizen assisting an officer, or a private citizen or store detective making a citizen’s arrest. The maximum sentence is two years and cases can be heard in either the Crown Court or in the magistrates’ courts.

Assault on a police constable in execution of his duty (section 89 Police Act 1996)

This offence is a common assault on police or prison officers acting in the execution of their duty, or on a person helping them. Off-duty police officers may act in the course of duty if an incident occurs which justifies their immediate action as long as they acted lawfully.

Police and community support officers (PCSOs) are not included within this offence unless they are assisting a police officer at the time of the offence.

The maximum sentence is six months imprisonment and cases can only be heard in the magistrates’ courts.

This offence is not designed to cover all assaults on police officers. If an assault leads to more significant injury than is covered by common assault then the attacker would potentially be guilty of a more serious offence – either ABH or GBH.

Assault occasioning actual bodily harm (section 47, Offences against the person act 1861)

For this offence, the assault (which can be intentional or reckless as above) must have caused some physical harm to the victim.  It does not need to be serious or permanent but must be more than trifling or transient. Some psychiatric harm can also be covered by this offence, but must be more than just fear or anxiety.

Although injuries that are more than ‘transient or trifling’ can be classified as ABH, in practice someone who causes no injury or injuries which are not serious is likely to be charged with common assault.

The maximum sentence for ABH is five years imprisonment and cases can be heard in the magistrates’ courts or Crown Court.

Grievous bodily harm / wounding

This covers two offences

• Unlawful wounding or inflicting grievous bodily harm (section 20, Offences against the person act 1861)
• Causing grievous bodily harm with intent to do grievous bodily harm/Wounding with intent to do grievous bodily harm (section 18, Offences against the person act 1861)

Unlawful wounding or inflicting grievous bodily harm (section 20)

Grievous bodily harm means really serious physical harm although it does not have to be permanent or dangerous.  It can also comprise psychiatric injury or someone passing on an infection, such as through sexual activity.

Wounding requires the breaking of the skin, or the breaking of the inner skin (eg within the lip) but does not include the rupturing of blood vessels.  Although a minor wound would therefore technically come under this offence, in practice the CPS is unlikely to charge it under s.20 However, the injuries involved in a wounding are of a lesser nature than those in GBH, so there can be quite some difference in the level of sentence for these two categories of injury.

The injury must be inflicted directly or indirectly by some deliberate or reckless conduct by the offender that was not an accident.

A section 20 offence requires either an intent to do some kind of bodily harm to another person or recklessness as to whether any such harm might be caused.  So even if minor harm was intended but serious injury resulted, someone could be charged with this offence.

The maximum sentence for this offence is five years and cases can be heard in the magistrates’ or Crown Court.

Causing grievous bodily harm with intent to do grievous bodily harm/Wounding with intent to do grievous bodily harm (section 18)

This is the most serious of the assault offences and involves situations in which someone intended to cause very serious harm to the victim.

An offence may take one of four different forms, namely:

1. wounding with intent to do grievous bodily harm;
2. causing grievous bodily harm with intent to do so;
3. maliciously wounding with intent to resist or prevent the lawful apprehension etc. of any person; or
4. maliciously causing grievous bodily harm with intent to resist or prevent lawful apprehension etc. of any person.

The difference between this offence and a section 20 offence as above is that in a section 18 offence, the offender must have intended to cause serious bodily harm to the victim. It would not involve a situation where someone was very badly hurt unintentionally as a result of a minor scuffle or where during an arrest someone merely intended to resist arrest and in doing so unforeseeably injured the officer arresting him.

The maximum sentence for a section 18 offence is life imprisonment and cases can only be heard in the Crown Court.

Assault with Intent to Resist Arrest

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Assault With Intent to Resist Arrest

Assault with Intent to Resist Arrest
Contrary to Section 38 of the Offences Against the Person Act 1861

This offence is committed when a person assaulted another person with the intention of resisting arrest, or preventing the lawful apprehension/detention of himself/herself to another, for any offence.

How Can You Defend An Assault With Intent to Resist Arrest Allegation?

If you are charged by the CPS with assault with resistance to arrest, you will need to instruct specialist assault solicitors who will listen to your side of the story and advise you on whether to plead guilty or not guilty.  They will review the evidence against you and advise on the strength of any defence you may appear to have.

This offence covers assaults against individuals who may be trying to apprehend or detain an offender, such as store detectives, as well as police officers (although you would typically be charged with assault PC in those circumstances)

What are the sentencing powers for assault and resisting arrest charges?

This is an either way offence, which means sentencing can take place in the magistrates’ or crown court, depending on the seriousness of the offence.

There is a maximum penalty of two years’ imprisonment on indictment (crown court) and/or an unlimited fine.

If sentenced summarily (at the magistrates’ court), the maximum sentence is six months’ imprisonment and/or a fine not exceeding the statutory minimum.

The sentence the court impose will depend on a number of factors such as the seriousness of any injuries, your previous convictions and the circumstances surrounding the offence. It is important that your case is presented in the best possible light to get the most lenient outcome. 

How Can Forrest Williams Help?

We are experienced assault solicitors.

We are a private firm who do not offer any Legal Aid.  Our clients are people who decide their cases are too important to risk to Legal Aid, or people who do not qualify for Legal Aid.

Your case will be prepared fully to ensure that the court see the whole picture to ensure they deal with you leniently.

We are an award-winning firm and are included in the prestigious Legal 500 directory of the leading law firms nationally.

Instruct us and discover why we win awards for our client care.

With Forrest Williams on your side, you’re in control.  You can depend on us.