Under the Criminal Code (Qld) any physical contact that occurs without the recipients consent is taken to be an assault on that person.
In some cases an assault does not even need to involve physical contact. Section 245(1) of the Criminal Code (Qld) provides that a bodily act or gesture that attempts or threatens to apply physical force without consent will also be considered to be an assault.
Section 339 of the Criminal Code (Qld) makes it an offence to assault another and do them bodily harm.
This offence is more serious than a “common assault” because of the “bodily harm” that the victim has suffered as a result of the incident.
It is important to clarify the specific offence that you have been charged with. In some circumstances you can be charged with a “serious” or “common” assault rather than “assault occasioning bodily harm”.
See what the law says about Assault Occasioning Bodily Harm.
An “assault occasioning bodily harm” offence is more serious than a “common assault” because of the “bodily harm” that the victim has suffered as a result of the incident.
“Bodily harm” means any bodily injury that interferes with the health or comfort of the victim. In the past courts have accepted bodily harm to include:
In some circumstances you may be able to argue that the complainant consented to the assault. This has been raised in situations when both the person charged and the complainant took steps to voluntarily enter in to a fight and neither used excessive force.
Another example of consent to an assault is when playing a contact sport. In these circumstances it may be possible to argue that the complainant impliedly gave consent for the physical contact by agreeing to participate in the game.
These are just some examples of the potential arguments that may be available to a person charged with an assault offence.
The maximum penalty for this offence is 7 years.
However this maximum penalty increases to 10 years where, at the time of the assault:
While the legislation sets out the maximum penalties for offences, when deciding what penalty should be imposed in each individual case the court is required to take in to account the nature of the offence, your unique personal circumstances and any criminal history.
To get a better idea of the penalties that a court might impose in your case it will be necessary for a solicitor to discuss your matter with you and gain a better understanding of your circumstances.
Under new legislation there are mandatory sentences that apply in circumstances where you have committed the assault in a public place while intoxicated. In such circumstances the court must require you, as part of your penalty, to perform community service.
Our solicitors have extensive experience in this area and will be able to assist you in making sure you get the best result when your charge is finalised. For more information on the factors that courts will consider when deciding your penalty see our sentencing page.
In some circumstances your matter may be appropriate for referral to Justice Mediation.
This is a process in which you and the complainant attend a meeting organised by an independent third party to discuss the incident and the impact it has had on the complainant.
An important part of this mediation is discussing how you can make amends for your behaviour. This might involve the payment of money to the complainant.
Often when the justice mediation process is successful the prosecutor will discontinue the court proceedings against you.
Your matter must be referred to Justice Mediation by either the court, Police Prosecution Corp or the Office of the Director of Public Prosecutions. The complainant must agree to participate in the process.
A benefit of having a solicitor is that, in appropriate matters, they are able to effectively negotiate with the court and prosecutors to convince them to have a matter referred to this process.
There are a number of possible defences that can be raised by people charged with assault occasioning bodily harm. Some of these include;
A common defence raised is provocation. This is relevant where the assault occurred as a result of some provocation by the victim that had deprived you of the power of self-control and resulted in you acting before there was time for your passion to cool. The amount of force you used must have been proportionate to the provocation and you cannot have intended to, or used force that would likely, cause death or grievous bodily harm to the victim.
Successfully raising this defence is complex and requires you to satisfy the court of a number of complex issues such as:
If you believe there may be a defence, such as provocation, available to you it is always advisable to speak with a solicitor about your chances of success and strategies in raising these arguments.
It is important to remember your right to silence (see our “your rights” page for more information).
There are different kinds of assault and violent offences. If you decide to speak with police there is a real risk that you may unintentionally provide them with evidence that allows them to charge you with a more serious offence or additional charges.
Our advice to clients is always to be cooperative and respectful with police but to exercise your right to silence when they ask you questions. You should speak with a lawyer as soon as possible after police contact you.