Common assault: the legal starting point
Common assault is defined simply under section 23 of the Summary Offences Act 1966 (Vic): unlawfully assaulting or beating another person. It’s a summary offence, meaning it’s heard and finalised in the Magistrates’ Court, and it carries a maximum penalty of 15 penalty units or three months’ imprisonment. It doesn’t require serious injury, a weapon, or planning, just an unlawful application of force, or in some cases a credible threat of it, without consent or lawful excuse.
What makes an assault “aggravated” rather than common?
Section 24 of the Summary Offences Act 1966 (Vic) turns a common assault into an aggravated assault when specific circumstances of aggravation are present. The most commonly relevant ones are assaulting someone in company with another person or persons, or assaulting by kicking or with any weapon or instrument. The underlying conduct is still an assault, but these additional facts make it more serious in the eyes of the law, and increase the maximum penalty that applies.
The penalty gap between the two charges
Meaningfully higher. Assaulting in company carries a maximum of 12 months’ imprisonment, and assaulting by kicking or with a weapon or instrument carries a maximum of two years, compared to three months for common assault alone. Section 24 also contains an older, separate provision dealing with aggravated assault on a child or a woman assessed by the court as too serious to be adequately punished as common assault, carrying its own distinct penalty. Both pathways remain summary offences, heard in the Magistrates’ Court, but the potential consequences differ substantially. This is why two people involved in what looks, from the outside, like a similar altercation can end up facing genuinely different maximum penalties, depending on which specific facts the prosecution can actually establish.
Is aggravated assault the same as “assault causing injury”?
No, and this is one of the most common points of confusion. Aggravated assault under section 24 is still a summary offence focused on specific aggravating circumstances, not on the level of injury caused. A separate charge, “Assaults” under section 31 of the Crimes Act 1958 (Vic), is an indictable offence carrying up to five years’ imprisonment, and applies where there’s intent or recklessness as to inflicting injury, pain, discomfort, or similar harm. Depending on what actually happened, police may lay this more serious charge instead of, or alongside, a summary assault charge.
Who actually decides which charge applies
Police lay the initial charge based on the facts they believe they can prove, informed by witness statements, any injuries, and the circumstances of the incident. That said, the charge isn’t necessarily final. As a brief of evidence is prepared and reviewed, and as your lawyer engages with the prosecution, a charge can be negotiated, amended, or in some cases withdrawn in favour of a different one, depending on what the evidence actually supports.
Injury isn’t always part of the equation
Not necessarily. Common assault and aggravated assault focus on the unlawful application of force (or a credible threat of it) and, for aggravated assault, the presence of specific aggravating circumstances, rather than on a particular injury threshold. This is different to charges like assault causing injury, which specifically require proof that an injury resulted. It’s entirely possible to be charged with aggravated assault, for instance for assaulting someone in company, even where no lasting injury occurred.
Can a charge move between common assault and aggravated assault?
Yes. If new facts emerge, such as evidence that a weapon was involved or that more than one person participated, a common assault charge can be escalated to aggravated assault. Equally, if aggravating facts can’t be proven, a charge may be resolved on the basis of common assault instead. This is exactly why the specific evidence matters more than the initial label attached to the charge.
Family violence cases add another layer
Not entirely. Where an assault occurs in a family violence context, additional considerations can come into play, including how the matter interacts with intervention orders and family violence-specific sentencing considerations. The underlying charge might still be common or aggravated assault, but the surrounding process and considerations can differ from a straightforward, non-family-violence incident. If an intervention order is in place or being sought alongside the criminal charge, both matters need to be looked at together, since decisions in one can genuinely affect the other.
What each charge means for your options going forward
Common assault, being the less serious of the two, may leave more room for options like diversion in appropriate cases, particularly for a first offence. Aggravated assault, carrying higher maximum penalties, is generally treated more seriously by the court, though the specific facts, criminal history, and how the matter is handled still shape the realistic options available. Neither charge automatically dictates the outcome, but the starting point is genuinely different.
What to do if you’re facing either charge
Get advice as early as possible, ideally before your first court date, so a lawyer can assess exactly what’s alleged, what evidence supports it, and what your realistic options are. Get in touch directly to talk through the specific facts of your matter before deciding how to plead or what to say to police or prosecution.
