Assault Occasioning Actual Bodily Harm under section 59 of the Crimes Act 1900 (NSW) is the next tier up from common assault, carrying up to 5 years' imprisonment — 7 years if committed in company.
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Assault Occasioning Actual Bodily Harm under section 59 of the Crimes Act 1900(NSW) carries a maximum penalty of 5 years' imprisonment, increasing to 7 years if the assault was committed in company. Most ABH matters are finalised in the Local Court, where the Magistrate's sentencing power is capped at 2 years, unless the prosecution elects to have the matter dealt with in the District Court. Whether you end up with a criminal record depends on whether the injury meets the legal threshold for "actual bodily harm," and how your matter is defended or negotiated from the outset.
Section 59 of the Crimes Act 1900 (NSW) makes it an offence to assault another person and, in doing so, cause actual bodily harm. It sits directly above common assault in seriousness, and directly below the much more serious grievous bodily harm and wounding offences.
In practice, ABH is one of the most common "upgrade" charges in the NSW criminal justice system. Where an alleged assault leaves a visible mark, bruise, or minor cut, police will very often charge ABH rather than common assault, even where the injury is genuinely minor. Because the line between "transient or trifling" and "actual bodily harm" is not always clear-cut, disputing whether the correct charge should really be common assault is a live issue in a significant number of these matters.
Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years.
— Section 59(1), Assault Occasioning Actual Bodily Harm
Where the same conduct is committed in company with one or more other people, section 59(2) increases the maximum penalty to 7 years imprisonment, reflecting the additional intimidation and reduced opportunity for a victim to defend themselves or escape.
If there was no injury at all, or only a fleeting mark that doesn't meet this threshold, your matter may actually be a common assault charge rather than ABH.
| Circumstance | Maximum Penalty | Court | Typical Outcome |
|---|---|---|---|
| Standard ABH (s59(1)) | 5 years imprisonment | Local Court (capped at 2 years) | Section 10, fine, bond, or CCO for a first, low-level offence |
| ABH in company (s59(2)) | 7 years imprisonment | Local Court (capped at 2 years) or District Court | Treated more seriously; District Court election more likely |
| Domestic violence-flagged ABH | 5–7 years imprisonment | Local Court or District Court | An ADVO is usually sought alongside; courts weigh victim protection more heavily |
A maximum penalty is rarely the actual outcome. Whether the prosecution elects to proceed in the Local or District Court, your prior record, and the seriousness of the injury all shape where your matter lands within this range.
No two ABH matters look the same, and the right defence depends entirely on how the alleged incident unfolded and the nature of the injury. Depending on the facts of your matter, our lawyers may raise:
If you believed your actions were necessary to protect yourself or someone else, and your response was reasonable in the circumstances as you saw them, this is a complete defence under section 418 of the Crimes Act, even where an injury resulted.
Where the injury was genuinely transient or trifling — a fleeting red mark, for example — the correct charge may be common assault rather than ABH, which can significantly reduce your exposure at sentencing.
Mistaken identity, or an incident that did not unfold the way it has been described. Witness accounts of fast-moving altercations are frequently inconsistent, and CCTV, phone footage or medical records can often resolve the conflict one way or the other.
Where contact was genuinely accidental, one of the essential elements of the offence cannot be proven and you must be acquitted. This commonly arises in crowded venues, sporting contexts, or workplace settings.
Relevant in contact sport and similar situations, where the complainant is taken to have accepted a degree of physical contact and associated risk of minor injury inherent in the activity.
Where you acted only because of a genuine, immediate threat, or to avoid a greater harm, these narrow defences may be open to you.
ABH matters typically take longer to resolve than common assault, partly because of the medical evidence involved and partly because of the possibility of a District Court election. Understanding each stage helps you know what to expect and when key decisions actually need to be made.
You are either charged and bailed by police, or issued a Court Attendance Notice requiring you to appear at a Local Court on a set date. Getting advice at this earliest stage shapes everything that follows.
At your first appearance, you (or your lawyer) indicate whether you intend to plead guilty or not guilty, and the police brief of evidence, including any medical records or photographs of the injury, is served.
Your lawyer reviews the brief for weaknesses, including whether the injury genuinely meets the ABH threshold, and can negotiate with police prosecutors to have the charge downgraded to common assault, withdrawn, or facts amended before any plea is entered.
The prosecution decides whether to keep the matter in the Local Court (capped at 2 years) or elect to proceed in the District Court, where the full 5 or 7 year maximum is available. This decision materially affects strategy.
If you plead not guilty, the matter is listed for a defended hearing where evidence is tested. If you plead guilty, or are found guilty, the court proceeds to sentencing submissions, where character references and evidence of remorse can materially influence the outcome.
An ABH charge is a serious step up from common assault, and the gap between a Section 10 outcome and a criminal record can come down to how the injury and the incident are characterised from day one. We focus on identifying that path early and building your case around it.
We assess whether a Section 10 dismissal, a downgrade to common assault, or a non-conviction outcome is realistically available to you from your very first appointment.
We scrutinise medical records, photographs, and witness statements to test whether the injury genuinely meets the ABH threshold, rather than accepting the police characterisation at face value.
We offer transparent, fixed-fee structures for ABH pleas and hearings, so you know the cost upfront and can budget for your defence with confidence.
Charged after hours or on a weekend? Our experienced Sydney defence team is always available for urgent advice, including at the police station itself.
No injury, or only a fleeting mark that may not meet the ABH threshold? See our common assault page for the lower-tier offence.
Learn moreLooking for an overview of all assault charges in NSW, from common assault through to the most serious matters? Start here.
Learn moreAuthor: Muhammad Siddique, Criminal Defence Lawyer | Reviewed by: NS Criminal Lawyers and Associates | Last reviewed: July 2026 | Jurisdiction: New South Wales
The information on this website is general information only and is not legal advice. You should obtain legal advice about your specific circumstances.
