Assaulting an Emergency Services Worker – Current Law and Recent Amendments

Recent reforms have increased the penalties for assaulting an emergency services worker in Victoria. 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. The Crimes Amendment (Emergency Workers) Act 2018 (Vic) increased mandatory penalties and amended exemptions. Below we set out the law as it now applies.

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 20 years imprisonment when serious injury is caused intentionally, 15 years imprisonment when serious injury is caused recklessly and 5 years imprisonment for standard assault. [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 of 3 years for intentional serious injury and 2 years imprisonment for reckless serious injury.[8]

A judge is not required to impose a term of imprisonment under very limited circumstances, such as Impaired mental functioning (Psychological Episode or Psychological immaturity). [9][10]

2018 Amendments – Now in Force

The Justice Legislation Miscellaneous Amendment Act (Vic), which came into force in 2018, increased mandatory minimum penalties for assaults causing injury to emergency workers on duty. The Act classified injuring an emergency worker as a “Category 1 offence”. Under section 10AA of the Sentencing Act 1991 (Vic), a court that convicts a person of causing serious injury to an emergency worker on duty must impose a custodial sentence and fix a non-parole period. The Director of Public Prosecutions may also appeal sentences in cases where a mandatory term was not imposed. Self-induced drug or alcohol intoxication can no longer be used as a special reason to avoid jail.

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.