Common Assault in Queensland covers a wide array of acts and incidents arising. It would be the most frequent assaults arising in everyday life. Merely bumping into someone could be deemed a common assault, but the law does not make such incidents illegal, unless it was intentional.
WHAT IS COMMON ASSAULT?
Common Assault is found in Section 335 of the Queensland Criminal Code. Section 335 says:
(1) Any person who unlawfully assaults another is guilty of a misdemeanour, and is liable, if no greater punishment is provided, to imprisonment for 3 years.
(2) The Penalties and Sentences Act 1992, section 108B states a circumstance of aggravation for an offence against this section.
Section 108B of the Penalties and Sentences Act says:
- If the offence happened in a public place; and
- The defendant was adversely affected by an intoxicating substance;
then the Court must sentence the defendant to community service, in addition to any other penalty imposed.
To understand what common assault means, we need to look at what is an assault? Section 245 of the Queensland Criminal Code defines an assault as:
“(1) A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an assault.
(2) In this section—
applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.”
To breakdown what an assault is, it is:
- Striking, touching, or moving, or otherwise applying force of any kind to another person directly or indirectly; and
2. Without the person’s consent, or with the other person’s consent if it is obtained by fraud.
- By some bodily act or gesture you attempt or threaten to apply force of any kind to another person;
2. Without the person’s consent; and
3. Under such circumstances where you actually or apparently had the ability to effect the assault.
Now we have established what an assault is, the next issue to determine is what does it mean for the assault to be “unlawful”. Section 246 of the Queensland Criminal Code says:
(1) An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.
(2) The application of force by one person to the person of another may be unlawful, although it is done with the consent of that other person.
WHAT IS THE SENTENCE FOR COMMON ASSAULT?
In Queensland there are 3 types of criminal offences. These are misdemeanours, simple offences and crimes. Depending on the type of criminal offence you are charged with, this will determine the maximum penalty. Common assaults are defined in the Criminal Code as a misdemeanour.
The maximum penalty for a common assault is 3 years imprisonment. This doesn’t mean you will be sentenced to 3 years imprisonment. The penalty shows Magistrates and Judges the seriousness of the charge when compared to other offences.
The penalty a court imposes for common assault will vary depending on such things as:
- The harm caused to the complainant.
- If this is your first offence?
- If you have any criminal history and/or previous convictions for offences of violence.
- If you have demonstrated remorse.
Our criminal lawyers will work with you to identify the key features of your case to help reduce your sentence.
WHERE WILL MY CHARGE BE HEARD?
A charge of common assault will be heard in the Magistrates Court.
MAKING COMMON ASSAULT WORSE- CIRCUMSTANCES OF AGGRAVATION
In some circumstances a person may have committed a common assault in the Criminal Code. However, because of who the complainant is, or their age, this may uplift the charge to a more serious one, like “serious assault”. Examples of situations where this may occur are:
- If the complainant is 60 years old or more.
- If the complainant was a police officer or ambulance officer.
- If the complainant relies on a guide, hearing or assistance dog, wheelchair or other remedial device
If the charge is uplifted to a serious assault, then this will result in a greater penalty, and in some situations jail terms.
WHAT DEFENCES ARE THERE FOR COMMON ASSAULT?
The onus is on the prosecution to prove you committed the common assault beyond reasonable doubt. Their job is to show the assault was unlawful, not authorised or excused at law. The job of your criminal lawyer is to analyse the evidence and see if there are any defences you may have. If you can raise a defence, then the Court should not convict you of the offence. Therefore it is important for you to seek legal advice, and not just plead guilty to the charge.
- Accident- you didn’t intend, nor was it reasonably foreseeable you would have assaulted the person.
- Self-defence- you assaulted the person because you were defending yourself.
- Self-defence of another person- you assaulted the person because you were defending someone else.
- Extraordinary emergency.
- Unwilled act.
WHAT YOU SHOULD DO IF CHARGED WITH COMMON ASSAULT
While you may think a common assault charge is minor, it still has a maximum penalty of 3 years imprisonment. Not all offences have a penalty of imprisonment. This means in some circumstances, a Magistrate or Judge could sentence a person to jail. It is critical you get advice from a criminal lawyer who can best represent you. Don’t risk going to Court alone thinking everything will be alright.
The criminal lawyers at the Criminal Lawyers Brisbane Group can:
- Let you know how serious the charge is considering the facts alleged against you.
- Tell you if there is likely to be any circumstance of aggravation alleged.
- Identify any defences open to you.
- Tell you the best direction you should take with your common assault charge.
- See if there is any way to resolve the matter outside of the courts.
- Identify any mitigating factors open to you in the event you plead guilty.
If you have charged with a common assault, get legal advice now. Don’t sit back thinking the charge will go away, or it is minor. Every criminal offence is serious and can have serious consequences for you. You need the experience of the Criminal Lawyers Brisbane Group in your corner fighting for you.
If you have charged with a common assault, get legal advice now. Don’t sit back thinking the charge will go away or it is minor. Every criminal offence is serious and can have serious consequences for you. You need the experience of the Criminal Lawyers Brisbane Group in your corner fighting for you. Pick up the phone and dial (07) 3153 6215 or fill out the form below for a free no-obligation chat. Contacting us may be the best thing you do.
If you have been
charged with a
contact us TODAY
for a FREE chat.
(07) 3153 6215