Assault
What is assault?
In Queensland, it is an offence under the Criminal Code Act 1899 (Qld) (the Criminal Code) to assault another person. The legal definition of an assault is when a person strikes, touches or moves, or otherwise applies force of any kind to another person, directly or indirectly, without the other person’s consent (or consent was obtained by fraud), or who by a bodily act or gesture attempts or threatens to apply force in circumstances where the person making the threat has or appears to have the ability to carry out the assault.
Assault is not limited to physically striking another. It can include the use of anything which applies heat, light, electrical force, gas or odour – anything which can cause personal discomfort or injury.
This definition is used for several offences, including Assaults Occasioning Bodily Harm and Common Assault.
Possible consequences for conviction of an Assault offence
The penalty that a person receives by a Court depends on many different factors. As a starting point, a Court will consider the type of assault that a person has been charged with. Whilst any criminal offence is serious, assaults can range from the less serious offence of Common Assault, up to one of the more serious offences of Grievous Bodily Harm.
Even the less serious offence of Common Assault carries the risk of imprisonment, so it is critical that you engage an experienced criminal lawyer to receive appropriate advice.
Common Assault
An offence of Common Assault is one of the least serious and most common forms of assault offences that come before the Courts. This type of assault offence does not require any injury to have been caused, and can include threats of assault as per the legal definition.
Common Assault offences carry a maximum of three (3) years’ imprisonment.
Assaults Occasioning Bodily Harm
An offence of Assaults Occasioning Bodily Harm is a step up from a Common Assault offence. This offence does require that the alleged victim suffered harm as a result of the assault. The penalty for this type of offence, again, depends on the amount of harm suffered by the alleged victim. The simpliciter offence (without any aggravating circumstances) carries a maximum penalty of seven (7) years’ imprisonment.
Aggravating circumstances for this type of offence include if the offender is or pretends to be armed with a weapon or is in company with one or more other people. In that case, an offender is liable for a penalty of imprisonment for up to ten (10) years.
Serious Assaults
This type of offence is, as the title suggests, more serious and carries harsher penalties than a Common Assault. This is because the law provides that offences done against certain people are more serious than others. For example, if the alleged victim:
- is over 60 years of age; or
- is reliant on a guide dog, wheelchair, or other assistive device (such as a walking stick or an artificial limb); or
- is a Police officer, and the circumstances of the offending prevent the Police officer from carrying out their lawful duties; or
- is another person who is carrying out their lawful duty, and the assault stops them from doing so or is assaulted because they have carried out their lawful duty; or
- is assaulted so that another crime can be committed, or is assaulted by a person resisting arrest (of themselves or another person),
then the maximum penalty is seven (7) years’ imprisonment. This can be increased to fourteen (14) years if the alleged victim is a Police officer and the offender:
- bites, spits, or throws or applies bodily fluid or faecal matter; or
- causes bodily harm to the Police officer; or
- is or pretends to be armed with a weapon.
Grievous Bodily Harm
This kind of offence is within the most serious range of offences, and carries a heavy maximum penalty accordingly. The Criminal Code defines grievous bodily harm as:
- the loss of a distinct part or an organ of the body; or
- serious disfigurement; or
- any bodily injury that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health.
Because of the harm that an alleged victim would have to suffer for an offence to be categorised as grievous bodily harm, the maximum penalty is fourteen (14) years’ imprisonment.
FAQ
What defences are available?
What defences are available?
What is the defence of provocation?
What is the defence of provocation?
- whether there was an insult offered by the alleged victim to the alleged offender; and
- whether that insult deprived the alleged offender of their self-control; and
- whether the alleged offender acted in the heat of the moment, before there was enough time for the alleged offender’s passions to cool; and
- whether the response by the alleged offender was proportionate, and is not intended to and is not likely to cause death or grievous bodily harm.
What is the defence of Self Defence – against unprovoked assault?
What is the defence of Self Defence – against unprovoked assault?
A Court does not expect someone who is experiencing an assault to simply suffer the offence. In genuine circumstances, a person charged with an assault offence can be found not guilty if they can adequately establish that they were acting in self defence, either of themselves or of another person they perceived as being assaulted.
When a person (the first person) suffers an assault from another person (the second person) which the first person has not provoked, the first person can use any such force against the second person as is reasonably necessary to make effectual defence, if the force is not intended to and is not likely to cause death or grievous bodily harm.
However, if the second person is assaulting the first person in such a way that the first person reasonably fears they will suffer grievous bodily harm or death, and believes on reasonable grounds that they need to use force which could cause the second person death or grievous bodily harm, then the first person may use that force.
There have also been cases where an alleged offender has struck or acted pre-emptively against a person who they knew, by reputation or some other information, was likely to or was going to cause the alleged offender death or grievous bodily harm. In some of those cases the defence applied and the alleged offenders were found not guilty.
What is the defence of Self Defence – against provoked assault?
What is the defence of Self Defence – against provoked assault?
This defence is available when a person (the first person) has unlawfully assaulted another person (the second person), and the second person responds with an assault that causes the first person to fear death or grievous bodily harm from the first person. If the first person believes on reasonable grounds that it is necessary to prevent death or grievous bodily harm from the second person, then it is lawful to use proportionate force even if it causes death or grievous bodily harm to the second person.
This defence is not available to the first person if the first person set out with the intention of causing death or grievous bodily harm to the second person, or formed that intention before the circumstances arose for the first person, unless the first person firstly retreated from the conflict, or did or said something to demonstrate that they were no longer engaged in the conflict with the second person and moved away as far as possible before then retaliating against the second person.
What is the defence - Defence of dwelling?
What is the defence - Defence of dwelling?
This defence requires that the alleged offender is in possession of a dwelling (usually, that person’s home) and uses force to prevent a person from entering into or remaining inside of the alleged offender’s dwelling. This also requires that the alleged offender believes, on reasonable grounds:
- the other person is attempting to enter or remain in the dwelling and has intent to commit an offence within the dwelling; and
- it is necessary for the alleged offender to use that force.
There are similar defences available to people defending their moveable property (personal possessions) against trespassers, but in this case the alleged offender cannot cause grievous bodily harm to the trespasser.
The law can be complex at the best of times, and when you are facing a criminal offence it can seem almost impossible to understand what could happen. If you or someone you know is charged with an assault offence, it is important that you seek experienced legal advice as soon as possible. We are available to assist you with any criminal charges and to provide you with clear, direct, and reliable advice.
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