The offence of Affray relates to the use or intended use of violence which results in fear and intimidation in other people.
Common examples include a brawl in a bar, street fights, road rage incidents, taking part in a violent public demonstration, forced unauthorised entry into someone’s home or threatening someone.
Affray charges in NSW
Affray is a crime under section 93C of the Crimes Act 1900 (NSW), it occurs when:
- A person uses or threatens unlawful violence towards another, and
- This conduct would cause a person of reasonable firmness present at the scene to fear for his or her personal safety.
Relevant considerations under the Act:
- A person of reasonable firmness does not need to be present.
- A verbal threat is insufficient for the charge to be laid by the police.
- If two or more people are involved, the court weighs up their conduct to establish whether an offence was committed; whether any purported violence was proportionate to the type of violent attack; and whether a self-defence argument has any merit based on the evidence of the particular case.
- The location of the incident could be a public or private place.
Maximum jail sentences for affray
Most affray charges remain in the Local Court where the maximum jail sentence is two years. Penalties for a first offence typically include a fine, Conditional Release Order, or Community Correction Order. It is also possible for no conviction to be recorded.
If the matter is heard in the District Court, however, the maximum jail sentence is 10 years. People who are convicted of affray in the District Court often receive a prison sentence.
Riot charges in NSW
Riot is a crime under section 93B of the Crimes Act, and refers to a large group of people using violence in a way that causes public fear. It is one of the most serious public order offences and occurs when:
- 12 or more persons who are present together,
- Use or threaten unlawful violence for a common purpose, and
- Their collective conduct would cause a person of reasonable firmness present at the scene to fear for his or her personal or family safety.
Relevant considerations under the Act:
- A person of reasonable firmness does not need to be present.
- A verbal threat is insufficient for the charge to be laid by the police.
- The 12 people need not use or threaten unlawful violence simultaneously.
- The location of the incident could be a public or private place.
- Each person involved in a riot could be found guilty and be liable for a maximum penalty of 15 years imprisonment. Prison sentences are frequently imposed by the courts for this offence.
Violent disorder charges in NSW
Violent disorder is a crime under section 11A of the Summary Offences Act 1988 (NSW). Section 11A states as follows:
11A Violent disorder
(1) If 3 or more persons who are present together use or threaten unlawful violence and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, each of the persons using or threatening unlawful violence is guilty of an offence.
Maximum penalty—10 penalty units or imprisonment for 6 months.
(2) It is immaterial whether or not the 3 or more persons use or threaten unlawful violence simultaneously.
(3) No person of reasonable firmness need actually be, or be likely to be, present at the scene.
(4) An offence under subsection (1) may be committed in private as well as in public places.
(5) A person is guilty of an offence under subsection (1) only if he or she intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence.
(6) Subsection (5) does not affect the determination for the purposes of subsection (1) of the number of persons who use or threaten violence.
(7) In this section— violence means any violent conduct, so that—
(a) it includes violent conduct towards property as well as violent conduct towards persons, and
(b) it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example, throwing at or towards a person a missile of a kind capable of causing injury that does not hit or falls short).
Each person using or threatening unlawful violence can be found guilty of violent disorder and be liable for up to six months imprisonment. A prison sentence is uncommon but it does depend on the severity of the alleged offence.
Disclaimer: This is not to be treated as specific legal advice. Please get in touch with our firm to discuss your specific legal matter.