Affray - Criminal penalties in Australia

The information on this webpage is to be read in conjunction with this disclaimer:
Australian National Character Check (ANCC) makes every effort to provide updated and accurate information to its customers. However due to the continuously changing nature of legislations for the Commonwealth and various States and Territories, it is inevitable that some information may not be up to date. The information on the website is general information only. The contents on the website do not constitute legal or professional advice and should not be relied upon as a substitute for legal or professional advice. While we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, suitability, accuracy or availability with respect to the information.

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?

• Public melee or a fight; even in a private space
• Yelled or threatened to assault a person (friend, witness, stranger, etc)
• Participated in a riot and public disturbance
• Engaged in a road rage
• Malicious panic calls in a public place

What are the offences of Affray?

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

• Willingly engaging in any of the anti-social conducts;
• The conduct leads to violence or the potential for violence on the witness (es)
• The violence or threat is directed towards someone else
• Cause a “reasonable person” to fear for their safety

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;

• The nature of the melee; causes, effects, real/hypothetical
• The provocation of the melee;
• The degree of violence; injured, killed
• The presence or possibility of other aggravating circumstances; weapons, verbal actions, etc.
• The area the affray took place; proximity to school, health centre, mass gathering
• The extent of personal involvement; Were they pushed into it or were they unlucky to be in the wrong place at the wrong time. Did they willingly participate, forced, or had no choice?

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;

• Section 10 dismissal

If the court finds guilt without conviction or little proof that the accused committed the offence, they may impose mild punishments. Also, if the court can find them guilty but decide to register no conviction, then the person will be granted a section 10 dismissal.

However, it is not in all cases that a court will grant a section 10 dismissal

Some considerations the court makes for a Section 10 dismissal are;

✔ The accused records; antecedents, age, health, mental condition, and so on

✔ The triviality of the charge

✔ Ameliorating circumstances around the offence

✔ Other additional matters from the court


• Conditional Release Order (CRO)

Since the court explores plenty of factors before giving its verdict, they can "pardon" the accused if or when they obey certain orders. However, if the candidate fails to meet any of the conditions, the accused will face further charges in court.

Candidates in a conditional release order must adhere to the following;

✔ Not commit further offences (related or not related)

✔ Must attend court when called to do so; usually in breaches

✔ However, additional conditions on a CRO are;

✔ Participate in rehabilitation programs or receive treatments

✔ Abstain from alcohol, drugs or both

✔ Avoid certain places/persons

✔ Report under the supervision of their Community correction officers, or in the case of young persons, juvenile justice officers.

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;

✔ Home detention

✔ Electronic monitoring

✔ Community service work (up to 750 hours)

✔ Total ban from alcohol, drugs and both

✔ A prohibition from visiting certain places or areas

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 Nationally Coordinated Criminal History Check NSW.

Some conditions for a community order are;

• The defendant must not get another conviction
• The accused must attend court anytime they are called (mostly when they breach an order)
• The following conditions may also follow;
• Abstain from drugs/alcohol and other intoxicants
• Avoid particular areas/persons that feel threatened
• Be supervised by community correction, or if under 18, a juvenile justice officer.
• Undertake community work of up to 500 hours

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 check.

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.

Can I defend an Affray charge?

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

• Acting out of self-defence;

Where you can provide evidence that you were acting out of an instinct at safety (Self-defense), you can successfully defend your charge

• Did not cause any harm

Some cases consider a hypothetical situation where the accused would be dangerous. However, if your legal team successfully proves that your actions in no way threatened or potentially threatened witnesses, the case will be struck off

• You were never involved in the Affray

The prosecution team must provide concrete evidence that you partook in the Affray, before the court. However, if you successfully prove that you were never part of the Affray charge, the court will acquit you. The proof must show that;

✔ You did not take part in the fight

✔ Make threats

✔ Other actions based on self-defence


• The act was compulsive

Some states consider other factors such as acting to protect other persons like;

• Vulnerable or the Aged
• Children
• Weaker citizens

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.

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).

Copyright & Disclaimer

The content on this website is communicated to you on behalf of Australian National Character Check™ (ANCC®) pursuant to Part VB of the Copyright Act 1968 (the Act).

The material in this communication may be subject to copyright under the Act. Any further reproduction of this material may be the subject of copyright protection under the Act.

You may include a link on your website pointing to this content for commercial, educational, governmental or personal use.

The contents of this website do not constitute legal advice and should not be relied upon as a substitute for legal or professional advice.