In QLD, when a person allegedly assaults another, the charge they receive will depend on:
There are several offences police can charge a person with, which vary in severity. All these charges, however, are considered violence offences. The Courts, therefore, take such offending seriously.
You have several options if you are charged with a violence offence. These include:
You may also have other options depending on your circumstances that we can discuss with you.
Pleading Guilty and Minimising the Penalty
There are steps you can take to demonstrate to the Court why you should receive the minimum sentence. It is important to undertake full and proper preparation in the lead up to your Court date.
Aitken Whyte Lawyers can assist you to prepare and advocate on your behalf. Our leading criminal lawyers servicing Brisbane have extensive experience representing clients for offences of this nature.
Pleading Not Guilty
We will also fight for and defend your rights if you believe you have a defence and wish to plead not guilty.
Negotiating The Facts or Downgrading the Charge
Our lawyers have successfully acted for clients to have charges downgraded through negotiation. We can walk you through each of your options before you decide whether you would like to go to trial.
Trial
We have also run successful trials on these offences. This includes defending charges before the District Court at Brisbane for:
where the jury found our client not guilty.
If you would like to discuss your charge and options, call 07 3229 4459 to speak directly with a criminal lawyer.
s245 of the Criminal Code (Qld) provides a definition of “assault“.
“Assault” can involve either:
The prosecution can make out assault by proving the following elements:
The prosecution can also make it out where a person:
The words “applies force” includes applying:
It is important to note that “assault” covers not just physical altercations. It can also include threats to apply physical force.
Assault is an offence under the Criminal Code in:
Below are descriptions of some of the offences a person may be charged with.
Common assault is defined in s335 of the Criminal Code as:
“Any person who unlawfully assaults another”
Queensland Criminal Code 1899 Section 335
An assault is “unlawful” unless it is authorised or justified by law (i.e., unless a defence applies). The application of force can still be unlawful even if done with the consent of the other person.
The maximum penalty for common assault is 3 years imprisonment.
An example of common assault would be:
(See Brady v Schatzel [1911] St R Qd 206).
Another example of common assault would be spitting on another person. (See R v Benson (QCA, No 304 of 1994, 22 August 1994, unreported)).
Assault occasioning bodily harm (AOBH) makes it an offence to:
“unlawfully (assault) another and thereby (do) the other person bodily harm”
Queensland Criminal Code 1899 Section 339
The maximum penalty for assault occasioning bodily harm is 7 years imprisonment.
However, a person will be liable for up to ten years imprisonment if the person:
Bodily harm is defined to mean any bodily injury which interferes with health or comfort.
In Scatchard v R (1987) 27 A Crim R 136 it was found that a sensation of pain alone was not enough to constitute bodily harm. There must be an identifiable bodily injury.
The meaning of the term was further expanded on in R v Chan-Fook (1994) 99 Cr App Rep 147. This case found it includes psychiatric injury arising from an identifiable clinical condition. This does not, however, extend to emotions such as fear or distress.
The issue of consent can be relevant to assault occasioning bodily harm.
There may be times where there was consent to the assault (a professional fight, for example). The relevant question then shifts. The Court must determine if the degree of violence used exceeded what the victim gave consent to. (See Lergesner v Carroll [1991] 1 Qd R 206).
An example of assault occasioning bodily harm was found in R v Fairbrother; ex parte A-G (Qld) [2005] QCA 105. AOBH occurred when the accused poured boiling water over the victim.
Serious assault makes it an offence for any person to:
The maximum penalty for serious assault is 7 years imprisonment.
For serious assault, it is not necessary for the accused to have knowledge that:
(See R v Reynhoudt (1962) 107 CLR 381).
Police would charge a person with serious assault of a police officer if they were to, for example:
The Courts consider this a serious crime.
For more minor infractions, a person may be charged with assault or obstruct police. We discuss the details of this offence further below.
An example of serious assault can be found in R v TT [2009] QCA 199. The appellant assaulted someone who was reliant upon a wheelchair.
It is an offence under s320 of the Criminal Code to do grievous bodily harm to another.
Grievous bodily harm is defined to mean either:
It is irrelevant whether treatment is or could have been available.
The maximum penalty for doing grievous bodily harm is 14 years imprisonment.
An example of grievous bodily harm could be “glassing” someone. This may result in severe lacerations to the face and significant permanent scarring. (See R v Berryman (2005) 159 A Crim R 65).
It is an offence under s320A of the Criminal Code to torture another person.
Here, torture means:
“the intentional infliction of severe pain or suffering on a person by an act or series of acts done on 1 or more than 1 occasion“
Queensland Criminal Code 1899 Section 320A
“Pain and suffering” include pain and suffering, whether temporary or permanent, that is:
The maximum penalty for torture is 14 years imprisonment.
An example of torture can be found in R v Geddes; Ex parte A-G (1999) 106 A Crim R 14. The accused was convicted for torturing an 18 to 20-month year old infant for three months. Acts found to be torture included:
It is an offence under s323 of the Criminal Code to unlawfully wound another.
It was accepted in R v Jervis [1993] 1 Qd R 643 that the word “wounding” carries its ordinary meaning. This requires that the skin must be broken.
The maximum penalty is 7 years imprisonment.
An example of wounding can be found in R v Meehan [1996] QCA 215 when the defendant stabbed the victim.
In R v Toohey [2001] QCA 149 an offence of wounding was found. The applicant hit the complainant with a broken glass across the arm. This caused injuries and the skin to be broken.
It is a separate offence under s790 of the Police Powers and Responsibilities Act to:
Assault here has the same meaning as in the Criminal Code, as outlined above.
The word “obstruct” can mean any act that makes it more difficult for a police officer to carry out their duty. (See Hinchliffe v Sheldon [1955] 3 All ER 406).
This charge can also be laid for the obstruction of a police dog or police horse.
If:
the person is taken to have obstructed the officer.
The maximum penalty for this offence, without aggravating features, is 6 months imprisonment. If, however, the offence took place:
the maximum penalty increases to 12 months imprisonment.
When appearing before the Court, you likely want to do everything you can to achieve the best outcome. Engaging a skilled lawyer experienced with these offences will make a difference.
The preparation you do and the information presented to the Court will have an impact on the penalty.
Aitken Whyte Lawyers Brisbane are focused on results.
Our Brisbane criminal lawyers are skilled and passionate advocates. As criminal law experts, we have experience appearing for all offences outlined above.
Call Aitken Whyte Lawyers Brisbane on 07 3229 4459 for:
We appear in all Courts across South East Queensland. Our lawyers can assist with all criminal law matters.
Brisbane
Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000
