Assaulting an Emergency Services Worker – Current Law and Proposed Amendments

Recent media has indicated the Victorian government’s intention to increase penalties for assaulting an emergency services worker. This follows a case where two women were recently found guilty, yet spared a term of imprisonment in sentencing for their assault on a Paramedic. Proposed reforms will increase the mandatory penalty and amend current exemptions. In this article, we discuss the current law and explore how the amendments could impact future cases.

Assault on Emergency Service Workers

It is an offence to assault or threaten to assault an emergency service worker (offences after 2 November 2014), custodial officer (offences after 31 May 2016) or youth justice custodial worker (offences after 5 April 2018) whilst on duty;[1]

‘Assault’ means to apply force, either directly or indirectly to the clothing or equipment.[2]

Emergency service workers are Police Officers, Paramedics, Hospital Staff, Members of the Metropolitan Fire Service, Country Fire Authority or State Emergency Service who are ‘on-duty’ or working at the time of the alleged offence.[3] Custodial officers include Prison Officers and Police Escort Officers. Youth justice custodial workers include Social Workers who are employees of the department of corrective services.[4]

Elements

In order to establish the offence of assault on an emergency services worker beyond reasonable doubt, the Police must prove that you:

1. Assaulted, threatened to assault, obstructed or resisted;
2. A person defined as an emergency services worker;
3. By applying force to the person or equipment of that person;
4. Did so with the intent to inflict (or were reckless as to) injury, discomfort, damage or depravation of liberty; and
5. The assault resulted in injury, discomfort, damage or depravation of liberty.[5]

The Police must also establish that you knew, or were recklessly indifferent to the fact that, the individual was an emergency services worker.[6]

Possible Penalties

The maximum term of imprisonment for assaulting an emergency services worker is 5 years imprisonment.[7]

If the assault on an emergency services worker results in an alleged victim sustaining a serious injury, you could be charged with an aggravated offence, which carries a mandatory minimum between 2 years and 5 years imprisonment.[8]

If ‘special and compelling’ circumstances are established, a judge is not required to impose a term of imprisonment.[9] These circumstances can include:

• Being under the influence of drugs or alcohol (only if aged 18-20);
• Impaired mental functioning (Psychological Episode or Psychological immaturity; or
• Other substantial and compelling reason.[10]

Proposed Amendments

The proposed amendments would require the mandatory penalties for all assaults on emergency service workers to be increased to 6 months. The amendments will also specify circumstances that do not give rise to ‘substantial and compelling reasons’ why a mandatory term of imprisonment is not appropriate.

The proposal also enables the Director of Public Prosecutions to appeal cases where exemptions are successfully established by the alleged offender. It is not currently known whether the proposed amendments will apply to juvenile offenders.

However, these are only proposals and will not become law unless amendments are successfully enacted by the Victorian Parliament.

Defences Available

You have the option to plead not guilty to an alleged offence of assaulting an emergency services worker. However, it is imperative that you seek legal advice as soon as practicable so that you can be provided with appropriate advice based on the circumstances relevant to your matter. Defences are available for assault of an emergency services worker and can include:

• Honest and reasonable belief that the person was not an emergency services worker or was not on duty;[11]
• Mental Impairment;
• Lawful Excuse;
• No intention to assault alleged victim; or
• Self-Defence.

You may also have a defence of a factual dispute relating to the charge.

We suggest that you should contact an experienced legal practitioner as soon as possible if you are to be interviewed in relation to this offence so that you can be provided with appropriate advice based on the circumstances relevant to your matter.

[1] Crimes Act 1958 (Vic) s 31 (1)(b)(ba).
[2] Crimes Act 1958 (Vic) s 31 (2).
[3] Sentencing Act 1991 (Vic) s 10AA.
[4] Corrections Act 1986 (Vic) s 9(a)(1).
[5] Crimes Act 1958 (Vic) s 31(3)(b).
[6] Crimes Act 1958 (Vic) s 31(1)(b).
[7] Sentencing Act 1991 (Vic) s 10AA.
[8] Crimes Act 1958 (Vic) s 15A, 15B, 16 and 17.
[9] Sentencing Act 1991 (Vic) s 10AA(1).
[10] Sentencing Act 1991 (Vic) s10A.
[11] CTM v R (2007) 236 CLR 440.