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Offences
Against Police
New South Wales Police Officers derive their powers from the common law and from legislation, most importantly the Law Enforcement (Powers and Responsibilities) Act 2002. Provided that a police officer is acting within the limits of their power, it is an offence to resist them. If you assault a police office while he or she is in the execution of their duty a heavier penalty applies than if you committed the same assault against a member of the public. These laws have been created out of a recognition of the difficult and dangerous job that police have. By imposing heavy penalties, our lawmakers seek to deter violence against police, and thereby protect them.
Because the powers that police have permit them to use physical force and to deny people of certain basic rights (such as their liberty), the Courts closely monitor how these powers are used. If a police officer steps over the line, or fails to comply with specific requirements, the law says they are no longer acting within the limits of their power. In this circumstance you cannot be guilty of resisting or assaulting a police officer.
This is a highly technical area of law. To assess whether you should fight your charge you should contact a defence lawyer experienced in this area. Christian has spent years prosecuting police for misconduct and criminal offences and has a strong track record of successfully defending this kind of matter.
RESIST POLICE IN
EXECUTION OF DUTY
It is an offence to resist a police officer who is acting in the execution of his or her duty. This means that you cannot use physical force to oppose what the police officer is doing. By far the most common scenario in which this arises is during arrest where people routinely try to avoid being handcuffed or struggle to break free.
The offence of resisting police can only be proved if the Court is convinced that the relevant police officer was acting 'in the execution of duty'; that is, within the limits of the powers conferred on him or her. There are numerous ways in which police conduct regularly falls outside these limits. For instance if a police officer does not caution you before arrest, or uses too much force when arresting you, their conduct may be unlawful. In these circumstances you may be found not guilty of resisting a police officer in execution of duty.
Before giving you advice, an experienced defence lawyer will closely analyse your case in order to identify any potentially unlawful conduct by police. If you end up fighting the charge on this basis, you will need an experienced court room lawyer with strong skills in cross examinationby your side.
Depending on the specifics of your case there may be other ways of defending a charge of resisting a police officer. These can all be explained to you in simple terms by your lawyer.
Maximum penalty: 5 years in imprisonment
Two versions of resist police
There are two different charges under which a person can be charged with resisting a police officer. One carries a maximum penalty of 12 months. The other carries a maximum penalty of 5 years imprisonment. Most of the time police will charge the more serious version of the offence. However, when negotiating with the prosecution they will often agree to replace the more serious version with the less serious if there is to be a plea of guilty.
The 5 year penalty is reserved only for the worst examples of resisting a police officer and is very rarely imposed. Very often sentences such as fines and good behaviour bonds are imposed. If you have not been in trouble before, or the facts of your charge are relatively minor, a skilled lawyer may be able to convince the Court to deal with your case by imposing a section 10. This is a penalty that involves a finding of guilt, but avoids a conviction.
ASSAULT POLICE IN
EXECUTION OF DUTY
An assault involves the use or threatened use of physical violence. Where this force / threat is used against a police officer ‘in the execution of his or her duty’ it is considered more serious. This is because police officers are regularly exposed to volatile and dangerous situations, and the law seeks to protect them by imposing heavy penalties on those who assault them. Spitting is an assault, and when committed against police is taken very seriously given the risk that infectious diseases will be spread.
As with the charge of resisting a police officer described above, you can only be found guilty of assaulting a police officer if the prosecution convinces the Court that the relevant police officer was acting in execution of his or her duty at the time you assaulted them. This means they must be acting within the limits of the laws which give them powers. Assault police charges are routinely successfully defended because police have stepped beyond these limits.
Often people are charged with assault police on the basis of their behaviour during arrest. Regularly this behaviour arises out of a desire to avoid arrest rather than any intent to physically assault the officers. In these circumstances the prosecution can often be convinced to withdraw an assault police charge and proceed with the less serious charge of resisting a police officer.
Maximum penalty: 5 years imprisonment
ASSAULT POLICE AND CAUSE
ACTUAL BODILY HARM (ABH)
If during an assault on a police officer, the officer is injured the maximum penalty that can be imposed is greater in order to reflect the harm caused. This is considered to be a serious offence and gaol terms are often imposed.
Maximum penalty: 7 years imprisonment
ASSAULT POLICE AND WOUND OR CAUSE GRIEVOUS BODILY HARM (GBH)
If during an assault on a police officer the officer sustains really serious injury, or a wound a heavy maximum penalty applies. This is a very serious offence and a person found guilty of this offence will almost certainly be sentenced to gaol.
Maximum penalty: 12 years imprisonment
INTIMIDATE POLICE IN
EXECUTION OF DUTY
Intimidation takes place where by words or actions a person puts a police officer in fear for their safety. The prosecution must not only prove that the words or actions are objectively intimidatory, they must also prove that the police officer was actually put in fear. This will almost always require the police officer to give evidence in court.
The offence of intimidating a police officer can only be proved if the Court is convinced that the relevant police officer was acting 'in the execution of duty'; that is, within the limits of the power conferred on him or her. There are numerous ways in which police conduct regularly falls outside these limits. For instance if a police officer does not caution you before arrest, or uses too much force when arresting you, their conduct may be unlawful. In these circumstances you cannot be found guilty of intimidating a police officer in execution of duty.
Maximum penalty: 5 years imprisonment
OFFENCES AGAINST POLICE DURING PUBLIC DISORDER EVENTS
A specific set of offences have been enacted to apply during public disorder events. These are events that involve a riot or some other type of civil disturbance that gives rise to a serious risk to public safety. The penalties for offences committed against police during such events are considerably higher. This is in part to reflect the public interest in deterring people from becoming engaged in public disorder, but also to reflect the greater risk that police are exposed to when responding to such events.
ASSAULT POLICE DURING PUBLIC DISORDER EVENT
Maximum penalty: 7 years imprisonment
ASSAULT POLICE AND CAUSE ABH DURING PUBLIC DISORDER EVENT
Maximum penalty: 9 years imprisonment
ASSAULT POLICE AND WOUND / CAUSE GBH DURING PUBLIC DISORDER EVENT
Maximum penalty: 14 years imprisonment
ASSAULT POLICE AND WOUND / CAUSE GBH DURING PUBLIC DISORDER EVENT
In 2013 the NSW Parliament passed a law requiring a life sentence to be imposed on any person who murders a police officer. This means a person convicted of this offence will spend their natural life in gaol. The only prospect for release is on compassionate grounds in the final stages of death. Before an accused person can be convicted of this offence there are a number of matters that the prosecution must prove:
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That the police officer was acting in the execution of his or her duty at the time; or
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If the police officer was not on duty, that the offence was committed as a consequence or in retaliation for acts done by that officer or any other officer while executing their duty
The prosecution must also prove that the accused;
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Knew or out reasonably to have known that the person killed was a police officer
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That the killing was intentional, or that the accused was engaged in conduct that risked serious harm to police
This law does not apply to anyone under the age of 18. Nor does it apply to any person who can satisfy the court that at the time of the killing they were suffering a significant cognitive impairment.
SENTENCING INFORMATION
As maximum penalties, the penalties indicated above are reserved for the worst category of offence. In order for you to be advised about the likely outcome in your case, your lawyer will need to consider not only the facts of the case, but also your personal circumstances.