Facing charges of affray can have serious repercussions, potentially resulting in a criminal record that may hinder your future employment prospects and travel opportunities. Affray involves situations where you either use or threaten to use unlawful violence against another person, causing a reasonable individual to fear for their safety.
The offence of affray as defined by section 93C of the Crimes Act 1900 (NSW), involves using or threatening unlawful violence towards another person or property. To establish the charge of affray, the prosecution must prove the following two crucial elements beyond a reasonable doubt:
1. Engagement in or threatened with unlawful violence towards another person or property.
The prosecution must demonstrate that you had the intention to use violence or was aware that your conduct could instill fear of violence in others.
The term ‘violence’ encompasses a broad spectrum of actions, ranging from physical harm or damage to individuals or property, as well as conduct that could potentially lead to harm such as throwing objects capable of causing injury at others, even if no actual injury occurs.
The presence of a physical act, such as making threatening movements or gestures, is necessary. Mere verbal statements without accompanying actions are insufficient to establish an affray charge. The occurrence of this threatening behavior can be in any setting, whether public or private, as the location does not impede the application of this offence.
2. The conduct would have caused an ordinary person to fear for their safety (even if no one else was present when the incident occurred).
To prove the affray charge, your conduct must have been significant enough to cause an ordinary person to fear for their safety. Importantly, it is not necessary for others to witness the event for it to qualify as affray. The presence of CCTV footage capturing the actions can suffice as evidence to support the charge.
If you believe that the prosecution cannot sufficiently prove the elements of affray beyond a reasonable doubt, you have the option to enter a plea of ‘not guilty.’
With a formidable track record of success in affray cases, our legal team possesses the expertise to present compelling evidence that supports your version of events. We may demonstrate that you had no intention of causing fear of unlawful violence or that the circumstances surrounding the incident did not reasonably warrant such fear.
By raising such issues during the early stages of the legal proceedings, we can effectively persuade and negotiate with the prosecution to reconsider their case, potentially leading to the charges being dropped.
There are potential defences that may you seek to rely on:
1. Self-defence: If your use of unlawful violence was in response to an immediate threat, with the aim of protecting yourself, your property, or another person from harm.
2. Duress: If you were compelled to employ unlawful violence due to external threats or coercion, effectively making you an instrument in someone else’s criminal conduct.
3. Necessity: If the situation demanded your use of unlawful violence to prevent serious injury or danger.
If you are considering pleading ‘not guilty,’ it is essential to consult with one of our experienced criminal defence lawyers. Our team will discuss the details of your case, explore potential defences or mitigating factors, and advise you on the best course of action moving forward. Our goal is to provide you with the support and guidance needed to navigate the legal process and achieve the most favourable outcome possible.
In certain circumstances, you may find it appropriate not to contest the charges brought against you and choose to plead guilty instead.
An early guilty plea offers advantages, as it demonstrates to the court your acknowledgement of the charges, and can save time and expenses by avoiding a trial or hearing.
Moreover, an early guilty plea may lead to a reduced sentence, as courts often show greater leniency for such pleas. However, before making any plea, it is essential to consult with an experienced criminal lawyer to assess whether there are any grounds to challenge the charges.
Affray is categorised as a summary offence when heard in the Local Court, which carries the maximum penalty of 2 years in imprisonment if dealt with in the Local Court. In more serious instances, where the prosecution decides to have the case heard in the District Court, the maximum penalty escalates up to 10 years of imprisonment.
It’s important to understand that these maximum penalties are typically reserved for the most serious affray cases and courts prioritise full time imprisonment as a last resort.
The court can exercise its discretion in determining the appropriate penalties for this offence, which may include:
1. Section 10 Dismissal: The court may dismiss the charge without imposing any further penalties.
2. Conditional Release Order: You are to be placed on a good behaviour bond and adhere to specified conditions imposed by the court.
3. Fine: A monetary penalty may be imposed.
4. Community Correction Order: You are to be placed on a good behaviour bond for a period of time with specified conditions and this may include community service and/or supervision.
5. Intensive Corrections Order: A term of imprisonment be served in the community.
6. Full-time imprisonment
The penalty that you receive depends on various factors, including the nature and extent of the violent conduct, whether any harm was caused to individuals or property during the incident, and where the offence occurred.
In determining the appropriate penalty, the presiding Magistrate or Judge will consider all relevant factors, including your criminal record and the likelihood of reoffending. This ensures that the punishment aligns with the specific circumstances of your case and reflects the principles of justice and proportionality.
If you are facing an affray charge and seek advice to better understand your situation, please contact our team of expert criminal lawyers for a free consultation to discuss the details of your case, explore potential defences or mitigating factors, and advise you on the best course of action moving forward. Our goal is to provide you with the support and guidance needed to navigate the legal process and achieve the most favourable outcome possible.
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