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Specialist Criminal Law Firm Queensland
Wednesday, 23 March 2022 01:23

Serious Assaults in Queensland

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There are various offences of assaults, which are created by section 340 of the Criminal Code. This article concentrates on serious assaults under Queensland Law.  To make an assault ‘serious’, a person must commit an ‘assault’ within one of nine categories.

 

What is ‘Assault’?

Many people think assault is a straightforward matter. Either you have struck someone or you have not. However, the criminal definition of assault is more complicated.

‘Assault’ is defined in the Criminal Code to mean: ‘A person who strikes, touches, or moves, or otherwise applied 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.’

In other words, an assault can be committed by a minimal use of force, or no use of force at all, if a threat to do so is made with the apparent ability to carry out the threat.

Is it complicated enough yet? It is about to be.

 

What is ‘Serious’?

There are nine categories of serious assaults, which can have different maximum penalties depending on further categories.

To make an assault ‘serious’ a person must commit an assault in the circumstances below:

  1. The assault is with intent to commit a crime, or with intent to resist or prevent arrest or detention of himself or herself or any other person.
  2. The person assaults, resists, or obstructs a police officer who is doing their job, or anyone who is helping a police officer who is doing their job.
  3. The person assaults anyone who is performing a duty imposed on them by law.
  4. The assault is because someone has performed a duty imposed on them by law.
  5. The assault occurs while pursuing a conspiracy concerning any manufacture, trade, business, or occupation, or respecting any person concerned with any manufacture, trade, business, or occupation, or the wages of any such person.
  6. Assaults someone who is 60 years old or more.
  7. Assaults someone who uses a wheelchair, assistance dog or remedial device.
  8. A prisoner assaults a prison officer.
  9. Assaults, or resists or wilfully obstructs, a public officerwhile the officer is performing a function of the officer’s office or assaults a public officer because the officer has performed a function of the officer’s office. A ‘public officer’ is someone who is a health service employee, or authorised officer under the child protection Act, or a public transport transit officer.

The person must have committed an ‘assault’ in all categories except categories 2 and 9, which may be only resisting or obstructing a police or public officer.

 

Maximum Punishment

For categories 1 to 9, the punishment is a maximum of 7 years.

However, for categories 2, 8 and 9, if a police, prison or public officer is assaulted in circumstances where:

  1. the offender bites or spits on the officer or throws at, or smears on, the officer a body fluid or faeces,
  2. the offender causes bodily harm (bodily harm means causing greater injury than pain alone),
  3. the offender is or pretends to be armed with a weapon.

The punishment is 14 years maximum.

A public officer is someone who is a health service employee, and authorised officer under the child protection Act, or a public transport transit officer.

 

Possible Defences

  • Identification—as with any case, if it was not you who committed the offence, then you cannot be guilty of it.
  • Self defence—if you were defending yourself, or someone else, then even if you did commit an assault, it may be lawful. Note, assaulting an officer in the lawful execution of his or her duty will exclude self defence as an option.
  • Provocation—if you are provoked (see provocation explained in greater detail here)
  • Accident—although a difficult defence to run, if it can be shown the assault was genuinely an accident, and not foreseeable as a possible consequence of your actions, it can be a defence.

For greater detail concerning these defences, speak to one of our experience lawyers or visit our article on defences to an assault charge.

 

What Court Will to be Heard In?

A serious assault, by default, will be heard in the District Court. The prosecution, however, has the power to decide whether a serious assault should be heard in the Magistrates Court instead. In the writer’s experience, the prosecution does usually decide to have these matters heard in the Magistrates Court unless it is an exceptionally violent serious assault. 

 

Likely Punishments

The Supreme Court has made plain that offenders who are guilty of serious assaults in the more serious circumstances—where the punishment is 14 years max—should generally be sentenced to imprisonment. This does not always mean imprisonment in actual gaol, as a suspended term of imprisonment may also be an option.

The sentencing principle of ‘general deterrence’ is an important consideration. General deterrence is the idea of sentencing someone so as to deter others who may be inclined to do the same. In cases such as these, the more severe the assault, the more severe the punishment is likely to be.

 

Conclusion

Although there are multiple categories of serious assault, in the writer’s experience the most commonly committed are in relation to police officers or people over the age of 60.

Needless to say, if you are charged with a serious assault of any description, you need a lawyer. We at Clarity Law know the judges, the cases and the law. We are to advise on likely punishments or whether there are viable defences or the ability to negotiate with the prosecutor for a lessor charge.

 

How do I get more information or engage Clarity Law to act for me? 

If you want to engage us or just need further obligation free information or advice then you can either;

  1. Use our contact form and we will contact you by email or phone at a time that suits you
  2. Call us on 1300 952 255 seven days a week, 7am to 7pm
  3. Book a time for us to call you
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