When offences of violence or threatened violence are committed in public or by groups of people, they are considered to be more serious. This is not only because of the greater risk to public safety and law enforcement that is presented by these situations, but because of the impact such situations have on uninvolved members of the public who witness them. On occasion police will charge a public disorder offence for relatively minor violence. In these instances there is often scope to negotiate for them to accept a plea of guilty to a lesser charge such as common assault.
This kind of offence often takes place at night and in circumstances where visibility is poor and/or witnesses are intoxicated. There is also often a real question about who was acting aggressively and who was acting in self defence. In such circumstances these charges can often be successfully defended.
If you have been charged with a public disorder offence contact Hearn Legal now for a fee consultation.
Affray is an offence that is targeted toward deterring and punishing the kind of violence that can create fear for the uninvolved members of the public who witness it. While it will almost always take place in public, technically the offence can be committed in private. The matters that the prosecution must prove are as follows:
That unlawful violence was either used or threatened toward another
If there is no violence, a threat must be accompanied by some threatening action in order for it to constitute affray
The threat or violence must be capable of causing fear to a person of reasonable firmness who was present at the scene
The 'person of reasonably firmness' is essentially just a person possessing the qualities of an average citizen; that is, not easily scared and not unusually brave. This is a hypothetical person and in fact no-one has to be present to witness the threat / violence in order for the offence to be proved.
Affray is a serious charge. It is often committed by intoxicated people fighting in the street. More serious examples involve the use of weapons and substantial injury. As with all assault charges there are a number of defences that may be available including:
While the actions comprising an affray charge are straightforward, proving all of the elements of the offence can be quite a complex. There is also often room to negotiate with the prosecution to reduce the charge to offences such as common assault, or violent disorder (see below).
Because of the scope of the offence, your lawyer will need to look at all of the circumstances of your case before advising you on the likely penalty if you plead guilty or are found guilty.
Maximum penalty: 10 years in imprisonment
The charge of riot is a rarely used by police. This is because amongst other things the prosecution has to establish that 12 or more people were involved in a common purpose. It therefore only really arises in situations of large scale civil unrest such as sometimes occur at sporting events or demonstrations. To be guilty of the charge the prosecution must prove the following:
That 12 or more persons were present together with the same purpose
That some members of the group were using or threatening unlawful violence
That the conduct of the group would cause a witness of reasonable firmness to fear for his/her safety
The offence can be committed both in a public place, and on private property. Because there are multiple complex matters that the prosecution must establish in order to prove this offence, you should seek advice from an experienced defence lawyer as early as you can. You lawyer can then assess the evidence and advise you on whether the charge can be successfully defended.
The maximum penalty indicates that the NSW Legislature intended for heavy penalties to be imposed on people who engage in riot. However, 15 years is the maximum penalty and depending on all the circumstances, sentences other than gaol may well be imposed.
Maximum penalty: 15 years imprisonment
Violent disorder is a summary offence. This means it can only be dealt with in the Local Court, and carries a relatively minor penalty. Because it has much in common with affray (described above) it is sometimes known as 'summary affray.' The offence is committed if the prosecution can prove the following matters:
Three or more people were together using or threatening unlawful violence
The violence must be towards a person or property
The conduct of the group would cause fear to a witness of reasonable firmness
As with affray, the person of reasonable firmness is a hypothetical person and does not actually need to be present. Violent disorder can provide a good negotiating option for persons charged with affray or common assault. With a much lower maximum penalty it follows that any punishment imposed will also be less severe.
Maximum penalty: 6 months imprisonment / $1,100 fine