Under Queensland law, there are several types of assault at differing levels of seriousness. The type of assault charge will generally depend on the injury/s that the victim sustains.
The most frequently charged is the offence of common assault.
In Queensland, any person who unlawfully assaults another is guilty of a misdemeanour and is liable to a maximum penalty of 3 years’ imprisonment.
What penalty an offender receives from a Court is entirely dependent on their circumstances including:
According to recent sentencing trends in Magistrates’ Courts during the last four years, approximately 40% of those charged with common assault have received a fine as a punishment for the offence. The next most common penalties are:
Other penalties that can be imposed depending on the circumstances of the case, the extent of the “assault” and the antecedents of the accused person, are imprisonment and community service.
Sentence preparation is important to keep any punishment to a minimum.
Ordinarily, it would be assumed that an assault involves some sort of physical touching with a degree of force, however, what actions constitute an “assault” at law is much wider than this.
Section 245(1) of the Criminal Code, gives a lengthy definition of “assault”.
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 an ability to carry out such action, is said to have assaulted that other person.
In other words, there does not have to have been a physical injury sustained by the victim for police to charge a person with common assault.
The law will consider actions such as a push, shove, applying light or heat or spitting on a person to be an assault against that person.
There also does not have to be any physical contact for the prosecution to make out a charge of assault.
For example, a verbal threat of an assault, or simply someone raising their fist, will also constitute an assault.
Several defences can apply to a charge of common assault if an accused person is intending on pleading not guilty. These include but are not limited to:
The defences of self-defence and provocation are the most relied upon, however, whether a defence is successful depends on the circumstances of each case.
Provocation can apply when it is found at a trial that the victim of the assault initially acted in such a way as to be likely, when done to an ordinary person, to deprive the accused of the power of self-control, and to induce that person to assault the person by whom the act is done (the victim).
Unprovoked self-defence makes it lawful when an accused is assaulted and has not provoked that assault, to use such force as is necessary to make an effectual defence against that assault. That force must not, however, be intended or likely to cause death or grievous bodily harm to the victim.
Provoked self-defence, on the other hand, makes it lawful after the accused has provoked or assaulted a victim in the first instance, and the victim responds by way of an assault with such violence as to cause the accused reasonable apprehension of death or grievous bodily harm, inducing the accused to believe that they must use such force in self-defence to preserve themselves from death or grievous bodily harm.
Call us if you want to discuss whether any of these defences would apply to your charge.
You can also read more about the possible defences to assault in our article discussing these defences in more detail.
Proper experience appearing before the Court for assault charges is essential. Contact us for advice or to discuss whether you have a defence to the alleged offence.
Aitken Whyte Lawyers are focused on results.
Our Criminal Defence team will advise you on the proper course to take to speak with the police and prepare for Court to achieve the best possible outcome.
Aitken Whyte Lawyers can assist you with all criminal matters and if you have been charged with assault.
If you want to know more about criminal law and offences, or speak to a solicitor about your situation and get advice and representation, call us on 07 5408 0655.
Aitken Whyte Lawyers
11/8 Pikki Street,
Maroochydore Qld 4558
Ph: +617 5408 0655
Fax: +617 3211 9311