Serious Assault

The Offence

Assault Charges Generally

Section 245 of the Criminal Code provides a broad definition of “assault”.

In summary, a person assaults another if they:

• strike the other person without their consent;
• touch the other person without their consent;
• move the other person without their consent;
• apply force of any kind to the other person without their consent; or
• attempt or threaten to apply force of any kind to the other person without their consent.

The actions described above can be direct or indirect. They can also occur with the other person’s consent if that consent was obtained by fraud.

Accordingly, there are a wide range of actions that can result in an assault charge.

See Common Assault, for a more in-depth discussion on what sort of actions constitute assault.

Serious Assault

The police can charge a person with a more serious offence in circumstances, depending on:

• the particulars of the victim; or
• the reason for the assault.

In Queensland, a person is guilty of a crime called “serious assault”, if they:

1. assault another:
   1. with intent to commit a crime; or
   2. with intent to resist or prevent the lawful arrest or detention of themselves or any other person; or
2. assault, resist, or wilfully obstruct:
   1. a police officer while the officer is acting in the execution of the officer’s duty; or
   2. any person aiding a police officer while the police officer is so acting; or
3. unlawfully assault any person while the person is performing a duty imposed on the person by law; or
4. assault any person because the person has performed a duty imposed on the person by law; or
5. assault any person in pursuance of any unlawful conspiracy respecting:
   1. any manufacture, trade, business, or occupation; or
   2. any person concerned or employed in any manufacture, trade, business, or occupation; or
   3. the wages of any such person or persons; or
6. unlawfully assault any person aged 60 years or over; or
7. unlawfully assault any person who relies on:
   1. a guide, hearing, or assistance dog;
   2. a wheelchair; or
   3. any other remedial device.

Serious assault is “serious” due to the circumstances of the victim or the intent of the defendant.

The Penalty

Maximum Penalty

The maximum penalty for this charge is 7 years imprisonment.

This increases to 14 years imprisonment in circumstances where the offender:

• assaults a police officer during the course of the officer’s duties; or
• obstructs a police officer during the course of the officer’s duties; and
• bites or spits on the police officer, or throws at or in any way applies to the officer bodily fluid or faeces;
• causes bodily harm to the officer; or
• is armed or pretends to be armed with a dangerous or offensive weapon or instrument.

Likely Penalty

Statistics in the Magistrates Court over the last 5 years show that for offences of this nature:

• around 19% of offenders have received a fine as punishment for the offending;
• 5% of offenders have received a period of wholly suspended imprisonment; and
• 27% of offenders have received a period of actual imprisonment.

The Penalties and Sentences Act is a governing body of legislation. It offers guidelines to assist the Court in determining an appropriate sentencing penalty. The sentencing guidelines for which the Court is to have regard to are set out in Section 9. They state that a Court should only impose a sentence of imprisonment as a last resort. This principle applies to most, but not all offences. It does not apply to offences involving violence, or that resulted in physical harm to a person.

For this reason, imprisonment is not a sentence of “last resort” for serious assault.

It is, as such, important to obtain legal advice if police have charged you with this offence.

Our Sunshine Coast criminal lawyers will take steps to minimise the penalty imposed. This can include by:

• ensuring appropriate presentation of your matter before the Court;
• advising you on what steps you can take to prepare before your Court date; and
• advising you of any prospects to negotiate with the victim or police prosecution.

Prosecution Election

Serious assault is an indictable offence.

Generally, indictable offences must be finalised in a higher Court. This can be the District Court or Supreme Court.

In the case of Serious Assault, the prosecution can elect whether to indict the matter.

The charge can be dealt with summarily in the Magistrates Court if the prosecution elect. Otherwise, the charge will be committed to the District Court to be dealt with on “indictment” (a type of formal accusation).

It is typical for the Magistrates Court to hear less serious matters than the District Court.

As such, the prosecution will consider the overall seriousness of the offending, including:

• the seriousness of the allegations; and
• the extent of harm to the victim.

Based on this, they will determine if the matter can be finalised summarily (dealt with in the Magistrates Court) or if it needs to be indicted (committed to the District Court).

Your matter will proceed before the District Court of Queensland at Maroochydore if:

• you are charged on the Sunshine Coast; and
• police prosecution elect to indict your matter.

Defences to Serious Assault

Assault is only “unlawful” if it is not authorised, justified, or excused by law. Certain defences exist which can excuse a person of assault at law.

See our article on the common defences available to assault and offences of violence.

We can review the evidence held by police and advise you on whether a defence applies.

We have had success for clients in the District and Supreme Courts at trial for serious violence offences. If you are intending to plead not guilty to a charge, we can expertly represent and defend you.

If you believe you may have a defence, contact one of our criminal lawyers on 07 5408 0655 for legal advice.

Appearing in Court – Here to Help

The charge of serious assault requires full and proper preparation prior to Court. This is to ensure your matter is presented in the best possible light.

Imprisonment is a very real outcome of a serious assault charge, so it should not be taken lightly. Engaging an experienced law firm to advise you can assist you to get the best outcome.

Aitken Whyte Lawyers Sunshine Coast  are focused on results

Our criminal lawyers are passionate advocates and hold themselves to a high standard. We are experienced and confident in appearing for violence offences, such as serious assault.

We will explain the process in clear terms so that you are informed and prepared for Court.

To speak to a lawyer, call us on 07 5408 0655 or send us an email.

Office Location and Contact Details

Sunshine Coast
Maroochydore
Aitken Whyte Lawyers
11/8 Pikki Street,
Maroochydore Qld 4558
Ph: +617 5408 0655
Fax: +617 3211 9311
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