If you have been charged with common assault for the first time, you are probably worried about two things above all: whether you could go to gaol, and whether you will end up with a criminal record. This article explains what a common assault charge means in New South Wales, what the police have to prove, the outcomes a court can reach, and the options open to a first-time defendant.

This is a practitioner overview of NSW law as it stands in 2026. It is general information about how these matters work, not legal advice about your own case. What happens in any particular matter depends on its facts, the police evidence, and where it is heard.

Key points

  • Common assault is an offence under section 61 of the Crimes Act 1900 (NSW). The maximum penalty is 2 years imprisonment, and, when the matter is dealt with in the Local Court, a fine of up to 50 penalty units (currently $5,500).
  • No injury, and no physical contact, is required. Causing another person to fear immediate and unlawful violence can be enough.
  • A charge is not a conviction. Being charged means the police allege an offence; a conviction is only recorded if the matter is proven and the court decides to record one.
  • For a first offence with no prior record, a court has the discretion to deal with the matter without recording a conviction, most often through a section 10 dismissal or a conditional release order. This result is discretionary, not automatic.
  • Full-time gaol is uncommon for a first-offence common assault, though it remains available to the court, particularly where the offence is serious or arises in a domestic violence setting.

What is common assault in NSW?

Common assault is the least serious of the assault offences in the Crimes Act 1900 (NSW), set out in section 61. It covers two kinds of conduct: applying unlawful physical force to another person (a push, a slap, spitting, throwing something at them), and causing another person to apprehend immediate and unlawful violence, such as raising a fist or making a threatening gesture.

What surprises most people is that the charge does not require any injury. If an injury is caused that is more than trivial, the police usually charge assault occasioning actual bodily harm under section 59 instead, which is a more serious offence. Common assault sits at the bottom of that ladder.

It is a Table 2 offence, which means it is dealt with in the Local Court unless the Director of Public Prosecutions elects to have it heard in the District Court. In practice, the large majority of common assault matters stay in the Local Court.

What do the police have to prove?

To secure a conviction, the prosecution must prove each of these elements beyond reasonable doubt:

  • that you either applied force to the other person, or caused them to fear immediate and unlawful violence;
  • that you acted intentionally or recklessly;
  • that the other person did not consent; and
  • that you had no lawful excuse.

If the prosecution cannot prove any one of these, the charge should not succeed. Several situations can mean an element is missing. Self-defence, where you were protecting yourself or someone else and your response was reasonable, is a lawful excuse. So is genuine accident, where there was no intention and no recklessness. Whether any of these applies turns entirely on the facts and the evidence.

Will I go to gaol for a first common assault offence?

For most first-time defendants, full-time imprisonment is an uncommon result for common assault, though the court can impose it. The 2-year maximum is reserved for the most serious cases. A first offender, on a matter at the lower end of seriousness, is far more likely to receive a lesser penalty, and in some cases no penalty and no conviction at all.

What moves a matter up the scale is the seriousness of the conduct and the surrounding circumstances. Violence in a domestic setting, an attack on a vulnerable person, a group assault, a breach of an existing court order, or a lengthy criminal history all make a heavier penalty more likely. The court weighs the objective seriousness of what happened against everything known about the person before it.

If you have been charged with common assault in NSW, what happens next depends on the exact charge, the police account of the facts, and the court where the matter is listed. Getting advice early, before your first court date, gives you the most room to shape the outcome.

Can I avoid a criminal record?

Yes, this is possible for a first offence, but it is at the court’s discretion. A finding of guilt does not have to result in a conviction being recorded. Under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court that finds a person guilty can decide not to record a conviction and instead:

  • dismiss the charge outright (section 10(1)(a)); or
  • discharge the person on a conditional release order without a conviction (section 10(1)(b)), usually on condition of good behaviour for a set period.

A conditional release order can also be made with a conviction under section 9. The difference matters, because a recorded conviction can affect employment, travel, and professional licensing, while a non-conviction result generally does not appear the same way.

When the court decides whether to record a conviction, section 10(3) directs it to consider the person’s character, age, health and prior history, whether the offence was trivial, the circumstances in which it happened, and any other matter the court thinks relevant. A person of prior good character with no record is in a stronger position on these factors. A good record helps, but it does not entitle anyone to a particular outcome. The court retains the discretion in every case.

What are the possible outcomes?

If a common assault is proven or admitted, the court chooses from a range of sentencing options. The table below runs from the least to the most serious, and shows which options avoid a recorded conviction.

Outcome Conviction recorded? What it involves
Section 10(1)(a) dismissal No Guilt is found, the charge is dismissed, no penalty and no conviction
Conditional release order, no conviction (s10(1)(b)) No Discharged on conditions (typically good behaviour) for up to 2 years
Conditional release order, with conviction (s9) Yes Similar conditions, but a conviction is recorded
Fine Yes Up to 50 penalty units, currently $5,500, in the Local Court
Community correction order (s8) Yes Supervision and other conditions in the community, up to 3 years
Intensive correction order (s7) Yes A prison sentence served in the community, up to 2 years
Full-time imprisonment Yes Up to 2 years for common assault

Which of these applies is a decision for the court, made on the facts of the case and the material put before it. No outcome is guaranteed for any charge.

What are my options if I am charged?

Broadly, a person charged with common assault has three ways to respond, and choosing between them is where early advice earns its keep:

  1. Plead guilty to the police facts. If the facts as written are accurate and there is no viable defence, pleading guilty at an early stage attracts a sentencing discount and lets you focus on the subjective case, the material that persuades a court to be lenient.
  2. Plead not guilty. If an element is missing or there is a defence such as self-defence, the matter proceeds to a defended hearing, where the prosecution must prove the charge beyond reasonable doubt.
  3. Negotiate the facts, then plead. Often the most important work is on the agreed facts themselves. The police statement of facts drives the sentence, so where it overstates what happened, it may be possible to negotiate an amended version that the prosecution accepts and that reflects the case more fairly.

That third option is frequently misunderstood. Two people can plead guilty to the same section 61 charge and receive very different results, because the facts the court sentences on are not the same. Getting the facts right, and preparing the subjective case (references, evidence of remorse, steps taken since the incident), often does more for a first offender than the plea label alone.

Practice insight — Peter Godkin

On a first common assault charge, my starting point is always the police facts. I read them closely to work out what is genuinely agreed, what is contested, and what can be negotiated. From there, the subjective case does a great deal of work: who this person is, what led to the incident, and what they have done since. A first offender who comes to court prepared, with the facts settled and the right material assembled, is in a much better position than one who turns up hoping for the best.

Getting advice on a first common assault charge 

A first common assault charge is a stressful thing to face, and the decisions you make early, particularly around the plea and the agreed facts, shape what the court can do. This is where having counsel who works in this area day to day makes a practical difference.

Peter Godkin is a criminal barrister at 8 Windeyer Chambers in Sydney’s CBD, called to the NSW Bar in 2014, with trial experience in the Local, District and Supreme Courts across a range of assault and other criminal matters. He accepts direct-access enquiries as well as work briefed by solicitors, and offers a free first one-hour conference to discuss your charge and your options.

To arrange a conference, call chambers on 02 9235 3033.

Frequently asked questions

Is common assault a criminal offence? Yes. Common assault is a criminal offence under section 61 of the Crimes Act 1900 (NSW). Whether it results in a criminal record depends on the outcome; a court can find the charge proven and still decline to record a conviction.

Can a common assault charge be dropped or withdrawn? It can be. The prosecution may withdraw a charge, for example where the evidence is weak or a key witness will not support it. This is not something a defendant can insist on, but well-prepared representations to the police or prosecutor can, in the right case, lead to a charge being withdrawn or downgraded.

Do I need a lawyer for a first common assault charge? You are entitled to represent yourself, and some people do. Because the plea decision and the agreed facts have a direct effect on the outcome, and because the rules of evidence apply at a defended hearing, most people facing court for the first time benefit from advice about their specific situation.

How long does a common assault case take? A straightforward guilty plea in the Local Court can be finalised in a small number of appearances over a few weeks to a few months. A defended hearing takes longer, because the matter has to be listed for hearing and evidence called. Timeframes vary between courts and by how busy the list is.

Will a common assault conviction show on a police check? A recorded conviction will generally appear on a national police check. A non-conviction result, such as a section 10 dismissal or a conditional release order without conviction, is treated differently. How a particular result is disclosed can depend on the type of check and the purpose it is for.

This article is general information about NSW law and does not constitute legal advice. Outcomes depend on the individual facts and evidence of each case. For advice about your own situation, speak with a criminal law practitioner.