Affray Charges NSW-Penalties, Sentences & Defences
What is Affray?
The offence of Affray is found in Section 93C of the Crimes Act (NSW) as follows:
1. A person uses or threatens to use unlawful violence towards another person;
2. In a private or public place; and
3. The behaviour of the person would cause a person of a “reasonable firmness” to fear for his or her personal safety
Uses or Threatens to Use Unlawful Violence
A threat cannot be made by the use of words alone.
Throwing of objects can amount to unlawful violence for the purposes of Affray.
The possession of weapon in addition to words alone is not enough, unless the weapon is visible or being held openly.
A person is guilty of Affray only if the person intends to use or threatened violence or is aware that their conduct may be violent or threatened violence.
An Affray usually involves a continuous course of conduct, it has been found that the prosecution does not need to identify or prove any one particular incident but rather than general nature of conduct as a whole.
In a Private or Public Place
A common misconception is that a Affray only occur in a public place. In NSW, a person can also be found of guilty of Affray in a private place.
Who is a Person of “Reasonable Firmness”?
The legislation does not define what is a “person of reasonable firmness”, caselaw however has defined it as a person to be an ordinary or average person and someone who is not particularly fearless or courageous.
Although, no “person of reasonable firmness” needs actually be, or be likely to be, present at the scene.
This means that the “person of reasonable firmness” prescribed in the legislation is often hypothetical in that an accused may be found guilty of Affray, even if no other uninvolved person was at the scene, or was even likely to be at the scene, to observe the violence.
However, if there are people present at the scene, they can be relevant to the court determination of whether a person of reasonable firmness would have feared for their safety.
Defences
Commonly raised Affray defences include:
Where an individual used unlawful violence to protect themselves, their property or another person (self-defence)
Where a person was threatened or coerced into using unlawful violence (duress)
Where a person uses unlawful violence to prevent serious injury or danger (necessity)
Which Court will Affray Charges be Heard in?
This charge is a table one offence, which means that either the person charged all the prosecution can elect to have the matter dealt with in the District Court. If neither party makes the selection the matter will be finalised in the Local Court.
Our lawyers appear daily across Sydney Metropolitan Courts and/ or Regional NSW Courts. Click here to find out which court you are required to attend.
Unlike assault charges, including common assault and assault occasioning actual bodily harm or grievous bodily harm, which are considered offences against individuals, Affray is a more serious type of charge carrying a maximum term of up to 10 years imprisonment, and is considered an offence against the public order to protect to the peace.
What Will Happen If I Plead Guilty to Affray?
Before pleading guilty and proceeding to a free sentence, it is advisable to speak to an experienced Affray lawyer for your case.
The Court may be able to finalise your case on the first mention date by conducting a sentencing hearing and his submissions from your lawyer about the circumstances of the offence, your personal circumstances, and any other legal principles that are relevant and what the appropriate penalty might be.
If you have been charged and going to court, call Criminal Lawyers Sydney and book your free first consultation with our experienced senior Affray lawyer today on (02) 9152 8619 or our 24-hour dedicated phone number 0449 593 845.
