Serious Assault – How Serious Is It?
Serious assault in Queensland is a criminal offence under the Criminal Code that involves violence against certain protected persons, including police officers, or assaults committed in specific circumstances. It carries a maximum penalty of up to 14 years imprisonment.
It is treated more severely than common assault and can attract significant penalties, including imprisonment. Understanding how serious assault is defined, how it is prosecuted, and what penalties and defences may apply is critical if you are facing this charge.
Which Court Will Handle Serious Assault?
Serious assault is classified as an indictable offence. However, subject to a prosecution election, it can be dealt with summarily in the Magistrates Court. Whether the matter proceeds summarily or on indictment will depend on the circumstances of the case and the prosecution’s assessment.
What Is a Serious Assault?
A person commits a serious assault if they do any of the following:
(a) assault another person with intent to commit a crime, or with intent to resist or prevent the lawful arrest or detention of themselves or another person; or
(b) assault, resist, or wilfully obstruct a police officer while the officer is acting in the execution of their duty, or a person acting in aid of a police officer while so acting; or
(c) unlawfully assault a person while that person is performing a duty imposed on them by law; or
(d) assault a person because that person has performed a duty imposed on them by law; or
(f) assault a person in pursuance of any unlawful conspiracy relating to a manufacture, trade, business, or occupation, or relating to any person employed in such activities or their wages; or
(g) unlawfully assault a person who is 60 years or more; or
(h) unlawfully assault a person who relies on a guide, hearing or assistance dog, wheelchair, or other remedial device.
What Does It Mean to “Assault” Someone?
Section 245 of the Criminal Code provides a detailed definition of assault. In simple terms, an assault occurs when a person unlawfully applies force to another person without their consent. Physical contact is not always required, but there must be an unlawful act or threat of force.
When Is a Police Officer Acting in the Execution of Their Duty?
A police officer is considered to be acting in the execution of their duty from the moment they commence a lawful task connected to their role. This continues for as long as they are engaged in pursuing that task until it is completed.
This applies only if the officer remains within the scope of their lawful duties. If an officer acts outside the gambit of their duty, a legal argument may arise that resistance does not amount to an assault. Examples may include an unlawful arrest or the use of excessive force during an arrest.
What Is the Punishment for Serious Assault?
The maximum penalty for serious assault without aggravating factors is 7 years imprisonment.
The maximum penalty increases to 14 years imprisonment if the offence involves an assault on a police officer in any of the following circumstances:
(i) the offender bites or spits on the police officer, or throws or applies bodily fluid or faeces to the officer;
(ii) the offender causes bodily harm to the police officer;
(iii) the offender is, or pretends to be, armed with a dangerous or offensive weapon or instrument.
A court may also order a mandatory period of community service where the offender is found to be adversely affected by an intoxicating substance in a public place.
As with all criminal matters, the actual penalty imposed depends on the specific facts of the case.
Queensland courts have imposed sentences involving actual custody for serious assault on many occasions. This occurs for several reasons, including:
- Serious assault involves personal violence, meaning imprisonment is not a sentence of last resort. The court may consider a custodial sentence even if the offender has no prior criminal history.
- In cases involving assaults on police officers, sentencing principles such as general deterrence and denunciation are given significant weight. Courts seek to send a strong message that frontline workers, including police officers, should not be exposed to violence while performing their duties. These principles are frequently emphasised in cases involving biting or spitting due to the risk of disease transmission.
What Defences May Be Available?
Depending on the circumstances of the case, the following defences may be available:
- Self defence.
- Provocation.
- Duress.
Each defence depends heavily on the facts and must be carefully assessed by an experienced criminal lawyer.
Can Serious Assault Be Resolved Without Going to Court?
In some cases, serious assault can be referred to restorative justice, formally known as justice mediation. This requires the consent of the person charged, the complainant, and the prosecution.
If the process is successful, the charge may be withdrawn, and the individual may avoid a criminal conviction.
Should I Seek Legal Advice?
Yes. A charge of serious assault can have serious short-term and long-term consequences. Early and strategic legal advice from the moment police make contact can significantly influence how your case is resolved.
Our team are experienced criminal lawyers and regularly act in serious assault matters. If you, or someone you know, has been charged with serious assault, contact Potts Lawyers for advice and representation.
If you need help, contact us at:
Brisbane Office
📞 (07) 3221 4999
Gold Coast Office
📞 (07) 5532 3133
Lismore Office
📞 (02) 6616 2101
After Hours
📞0488 999 980