AFFRAY- section 93C of Crimes Act 1900
A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray.
If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of above.
A threat cannot be made by the use of words alone.
No person of reasonable firmness need actually be, or be likely to be, present at the scene.
Affray may be committed in private as well as in public places.
The maximum penalty for affray will depend on which court your matter will be heard in.
Generally, most affray cases can be dealt in the Local Court. The maximum penalty in the Local Court is 2 years imprisonment.
However, in more cases, the prosecution can elect to have the matter dealt with in higher courts, i.e., District Court, where the maximum penalty is 10 years imprisonment.
Your Options in Court
Pleading Not Guilty
The prosecution is required to prove two things beyond a reasonable doubt in order to establish the offence:
- That you used or threatened unlawful violence towards another person or towards property
- That your conduct would have caused a person of ‘reasonable firmness’ to fear for their safety (however no other person needs to be present for you to be charged with affray)
How does your conduct cause a person of ‘reasonable firmness’ to fear for their safety?
For example, Lord Goddard CJ in R v Sharp  1 QB 552 at 559 said, “if two lads indulge in a fight with fists, no one would dignify that as an affray, whereas if they used broken bottles or knuckle dusters and drew blood a jury might well find that it was, as a passer-by might be upset and frightened by such conduct.
Defences to this charge
- Self-defence– where you used unlawful violence to protect yourself, your property or another person.
- Duress– Where you were threatened or coerced into using the unlawful violence.
- Necessity– Where you used unlawful violence to prevent serious injury or danger
- Identification– you were not the person involved
You are entitled to an acquittal if the prosecution is unable to prove the essential elements of affray.
It is important that you speak to an experienced criminal defence lawyer who will be able to advise you of your options.
If you decide or have been advised to plead guilty to affray after receiving legal advice from an experienced criminal defence lawyer, it is crucial that your case is sufficiently prepared to maximise your chances at obtaining a lenient sentence.
Utilitarian Value or 25% discount on punishment
The discount for the utilitarian value of the plea of guilty will be determined largely by the timing of your plea entered. That means, the earlier you enter a plea of guilty, the greater discount you receive on your punishment and also the type of sentence you receive.
The utilitarian value of a delayed plea is less and consequently the discount is reduced
Types of Penalties
Types of penalties the Judge can impose on you include any one of the following:
Our expert defence team at Criminal Lawyers Sydney may be able to negotiate the police ‘facts’ to reduce the seriousness of the offence.
Our team will guide you on obtaining materials which can be handed-up to the court during your sentencing – including a letter of apology, character references and any documents from counsellors or health care professionals you have consulted.
These materials, together with persuasive verbal submissions by your lawyer in the courtroom, can help to ensure you receive the most lenient penalty that is possible in the circumstances.
If you have been charged with AVO or contravene AVO, call Criminal Lawyers Sydney anytime on (02) 91528619 to arrange a free first conference with one of our experienced AVO lawyers who will review the allegations and advise you of your options and the best way forward.
Police often lay charges mistakenly as to a person’s level of involvement. A person’s presence when an unlawful violence is taking place, where the person is not engaging in unlawful violence themselves, does not constitute an affray and the role of each person present needs to be considered.
For example, a brawl took place in a public area involving multiple people or between groups of friends and you were standing in that group as an onlooker rather than a participant. As such, you cannot be found guilty of the offence of affray beyond reasonable doubt. It might be possible to have charges reduced to a less serious offence, depending on the circumstance or even have the charge dropped altogether.
The court be required to consider both the objective factors of the charge and also the subjective factors that apply to the person being sentenced.
The objective seriousness involves a number of factors as per below:
- The degree of violence, how the offence was carried out and the form of unlawful.
- Any involvement or use of weapons.
- Any injuries caused.
- Duration/location of offence.
- The degree of planning.
The subjective considerations as follows:
- The ag of the offender.
- Any past criminal history of the offender.
- Their attitude or remorse towards their conduct.
- The persons mental health.
- Rehabilitation- can be in form of anger management course taken.
It is not common for a person to avoid a criminal conviction for Affray, unless the Affray was trivial or otherwise a strong subjective case.
However, pursuant to section 9 (1) (b) to Crimes Sentencing Procedure Act 1999, a court finds the offence proven or if a person pleads guilty to an offence, but does not proceed to record a criminal conviction. Although it is difficult, but possible to have Affray dismissed without a criminal record under this section.