In Queensland, the term “common assault” covers a range of potential acts and incidents that might occur. Under the umbrella of common assault are several different terms that you have probably heard used, and might have wondered how they fit into the Queensland criminal law system.

In this article, we’ll discuss:

1. What is common assault;
2. What is the sentence for common assault (and will a conviction be recorded);
3. What is “aggravation” for common assault charges, and how does it work;
4. What defences are available for common assault;
5. What you should do if charged with common assault.

So… let’s get into it.

What is Common Assault?

As you might expect from the name, common assault is a regular charge covering a reasonably broad spectrum of potential offences involving others.

Here’s the not-particularly-helpful version from section 245 of the Criminal Code:

“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””

So, putting that into sensible language, we can say that common assault is when a person:

1. Applies force to another on purpose; or
2. Threatens in a real way to apply force to another; and
3. Doesn’t have that other person’s consent or lawful justification.

Now, “applying force” can mean a wide range of things, including the obvious and the less obvious. So, as one example, it is possible to “assault” someone with an odour (believe it or not).

What is the Sentence for Common Assault?

Common assault is considered a misdemeanour, which technically is not a crime in the legal sense.

As a result, the consequences tend to be less severe than other more severe forms of assault.

That said, common assault does carry a maximum sentence of three years imprisonment, which is nothing to sneeze at either. With a three year maximum sentence, the Magistrates Court will normally deal with a common assault charge.

In real terms, depending on many factors like criminal history, conduct, remorse shown, and other mitigating factors, common assault charges can regularly result in probation, good behaviour orders, community service or fines.

Your criminal lawyers will help you work through and identify the factors that might assist in mitigating any sentence for a common assault charge, and present those to the Court on your behalf.

Making Common Assault Worse – Circumstances of Aggravation

Many types of assault have “aggravating” provisions.

These are situations when the circumstances of the assault or the person against who it is committed are deemed to be worse than “normal” forms of common assault.

So, assault against a police officer, a person with a disability or an aged person (over 60) are some forms of aggravation, as is a assault that causes bodily harm.

Where this happens, higher penalties and jail time can apply, and the actual charges might be treated as a crime rather than a misdemeanour.

What Defences are there for Common Assault?

In terms of the pure act, common assaults occur every minute of the day.

The hustle and bustle of getting on a peak hour train, the rugby match on Friday night and the line for drinks at the pub are all areas where people “apply force” to each other.

The main distinguishing feature is that, expressly or implicitly, you have consented to those minor assaults. Unlike, say, grievous bodily harm or assault occasioning bodily harm, you can consent to common assault.

This is often the first place to start in analysing any defence you might have – did the person consent or provoke you in some way?

Otherwise, though, available defences for common assault include self-defence (including defence of another), preventing violence or another crime, and absence of intention (that is – it was an accident).

Committing assault while intoxicated is not a defence – in fact, it is a type of aggravation particularly if you are in a licenced premises.

What you should do if Charged with Common Assault

While it seems like a less serious charge, with three year’s maximum imprisonment and the possibility of aggravating circumstances making that worse, it is worth getting immediate counsel from criminal lawyers if you have been charged with common assault.

In particular, if you have been involved in an incident of any kind that might lead to charges, you should never give a statement to the police without having consulted your criminal lawyers first.

We will then work with you to determine:

1. What, if any, risks there are to you involved in the incident;
2. Whether there are any circumstances of aggravation to be concerned about;
3. Your best course of action in terms of the charges; and
4. What, if any, mitigating factors exist that might reduce your sentence or allow you to avoid having a conviction recorded.

If you need further help understanding common assault or to deal with common assault charges, get in touch with us here.