If you have been charged with Affray, here is some information to know and consider in seeking legal advice with Emma Turnbull Lawyers.
Elements of the offence
For the prosecution to prove the offence of Affray, they must prove beyond a reasonable doubt all of the elements of the offence set out in s 195H of the Crimes Act 1958 (Vic) which are as follows:
- The accused used or threatened unlawful violence; and
- That conduct was intentional or reckless, and
- That conduct would cause a person of reasonably firm character to be terrified.
There are two additional elements, which if proved mean a higher penalty can apply. These are:
- The accused was wearing a face mask at the time of the offence, and
- The accused’s purpose in doing so was to conceal their identity or to protect against the effects of a crowd controlling substance.
Will I have to go to court?
Charges for Affray are often dealt with summarily in the Magistrates’ Court. However, depending on the circumstances of the offence and any other charges laid, the case may be heard in a higher court. Expert legal advice is important in ensuring the most appropriate defence to a charge of Affray.
Once the case goes to court, it is up to the prosecution to prove all the elements of the offence. It is important that you seek expert legal advice to prepare a defence and to represent you in court as this offence carries a significant maximum sentence of imprisonment.
Maximum penalty:
The maximum penalty this offence carries is 2 years imprisonment if it is dealt with in the Magistrates’ Court, but up to 7 years imprisonment if dealt with in the County or Supreme Court.
What sentences are usually given?
Between 1 July 2016 to 30 June 2021, 63 people were sentenced for affray in the higher courts, with 71% (45 people) given a sentence of imprisonment. Sentences imposed in the higher courts ranged for 2 months to 7 and half years, depending on the seriousness of the offending.
Between 1 July 2018 to 30 June 2021 the Magistrates Court dealt with 911 cases and imprisonment was imposed in 32% of cases, a community corrections order in 29% of cases and a fine imposed in 23% of cases.
What do I do now?
To ensure the best chance of a successful defence, it is important to get in contact with an expert criminal lawyer as soon as possible. At Emma Turnbull Lawyers, we have experienced criminal defence lawyers who can assist you in defending this charge.
Contact our office today to speak to an accredited criminal law specialist, on (03) 9077 4834 or at admin@emmaturnbull.com.au