Assault is a serious criminal offence in Queensland, and there are multiple types and classifications under the Queensland Criminal Code. This guide provides a comprehensive overview of assault offences, including definitions, penalties, court procedures, and available defences.
Definition of Assault
Under Section 245 of the Queensland Criminal Code, assault is defined as:
“A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an assault.”
This definition encompasses a wide range of actions and outlines the various ways force or threats can be considered assault.
Types of Assault Offences
Common Assault
Common assault is the simplest assault offence under Queensland law and is classified as a misdemeanour, carrying a maximum penalty of 3 years imprisonment. It generally involves incidents where no “circumstances of aggravation” are present, such as the use of a weapon or causing bodily harm. However, circumstances of aggravation can still be attached to a common assault charge, potentially increasing the penalty.
What the Police Must Prove
To secure a conviction for common assault, the police must prove:
- The defendant assaulted the complainant.
- The assault was committed intentionally or recklessly.
- The assault occurred without the complainant’s consent.
- There was no lawful justification or excuse for the assault.
- Any alleged circumstance of aggravation, if applicable.
Which Court Hears the Matter?
Common assault charges are heard in the Magistrates Court.
Defences Available for Common Assault
Some common defences to a charge of common assault include:
- Provocation
- Consensual fight
- Self-defence
Assault Occasioning Bodily Harm
If an assault results in bodily harm to the complainant, the charge escalates to assault occasioning bodily harm. In its simplest form, this offence carries a maximum penalty of 7 years imprisonment. Additional circumstances of aggravation can further increase this maximum penalty.
What the Police Must Prove
The police must establish the following elements:
- The defendant assaulted the complainant.
- The assault was unlawful.
- The defendant caused bodily harm to the complainant.
- Any alleged circumstance of aggravation.
Which Court Hears the Matter?
Assault occasioning bodily harm can be heard in either the Magistrates Court or the District Court, depending on the circumstances.
Defences Available for Assault Occasioning Bodily Harm
Possible defences to this charge include:
- Provocation
- Consensual fight
- Self-defence
Serious Assault
Serious assault refers to offences that carry a higher level of harm or threat, such as an assault on a vulnerable person (e.g., someone over 60, a police officer, or a disabled person). The maximum penalty for serious assault is 7 years imprisonment, which increases to 14 years in certain cases (e.g., spitting on a police officer).
Examples of Serious Assault
Examples of actions considered serious assault include:
- Assaulting a person over 60 years old
- Assaulting a police officer or paramedic
- Assaulting a person with a disability
What the Police Must Prove
The elements of serious assault are similar to common assault, with the addition of a circumstance of aggravation that makes the offence more serious.
Which Court Hears the Matter?
Serious assault charges can be heard in either the Magistrates Court or the District Court, with the prosecution typically choosing the appropriate jurisdiction.
Defences Available for Serious Assault
Defences to a serious assault charge include:
- Provocation
- Self-defence
- Consensual fight
Sexual Assault
Sexual assault is a serious offence with a maximum penalty of 10 years imprisonment in its simplest form. Certain circumstances of aggravation, such as the use of violence or threats, can increase the penalty to life imprisonment.
What the Police Must Prove
To prove sexual assault, the prosecution must establish:
- The defendant assaulted the complainant.
- The assault was unlawful and indecent; or
- The defendant procured another person to:
- Commit an act of gross indecency without consent, or
- Witness an act of gross indecency.
- Any alleged circumstance of aggravation.
Which Court Hears the Matter?
For sexual assault charges without aggravating circumstances, the Magistrates Court or District Court can hear the case, at the defendant’s election. For aggravated cases, the court is at the prosecution’s discretion.
Defences Available for Sexual Assault
Possible defences include:
- Insanity
- Self-defence
- Honest and reasonable belief that consent was given
FAQ’s
What is sexual assault?
Sexual assault is any unwanted sexual activity forced upon a person without their consent. It includes a range of behaviours from unwanted touching and kissing to rape. According to the Australian Institute of Health and Welfare, sexual assault refers to any act of a sexual nature carried out against a person’s will through the use of physical force, intimidation or coercion. This can include rape, attempted rape, aggravated sexual assault, indecent assault, and forced sexual activity
What is aggravated sexual assault?
Aggravated sexual assault is a more serious form of sexual assault that involves additional circumstances that make the offence more severe. In Queensland, these circumstances of aggravation can include:
- Intentionally or recklessly inflicting actual bodily harm
- Threatening to inflict harm with a weapon
- Committing the offence in company with others
- The victim being under 16 years of age
- The victim being under the authority of the offender
- The victim having a serious physical disability4
These factors can lead to more severe penalties if the offender is convicted.
What is the punishment for sexual assault in Queensland?
In Queensland, the maximum penalty for sexual assault is 10 years imprisonment, as outlined in section 352 of the Criminal Code Act 1899. However, for aggravated sexual assault, the maximum penalty can increase to 14 years imprisonment if the assault includes oral sexual contact, and up to life imprisonment if committed while in possession of an offensive weapon or in company with another person
It’s important to note that while these are the maximum penalties, the actual sentence can vary depending on the specific circumstances of the case. In less serious cases, it is possible for fines and other non-custodial penalties to be imposed5.
How serious is a common assault charge?
A common assault charge is considered a serious offence, although it is generally less severe than charges like sexual assault or aggravated assault. In Queensland, common assault carries a maximum penalty of 3 years imprisonment
However, the actual penalty can vary widely depending on the specific circumstances of the case, the offender’s criminal history, and other factors considered by the court.
Is common assault a criminal offence?
Yes, common assault is a criminal offence. In Queensland, it is classified as a misdemeanour under the Criminal Code
A conviction for common assault can result in a criminal record, which can have significant long-term consequences for employment, travel, and other aspects of life.
What is common assault in Queensland?
In Queensland, common assault is defined as unlawfully assaulting another person. This can include actions that don’t necessarily cause physical harm, such as threatening gestures or attempting to strike someone. The key elements are:
- The action was intentional or reckless
- It was done without lawful justification or excuse
- It was done without the consent of the victim
Common assault can occur even if there is no physical contact, as long as the victim reasonably believes they are about to be hit or touched without their consent
The maximum penalty for common assault in Queensland is 3 years imprisonment, although the actual sentence can vary depending on the circumstances of the case.
To the best of our knowledge, the information in this article is correct at the time it was written, however it is subject to change. Every case is different, and this article should not be considered legal advice. Instead, why not get advice tailored to your matter? Call us today for a free consultation.
