Common assault in Queensland

What common assault covers

Common assault is the general charge sitting under a range of conduct involving another person. The statutory definition in section 245 is not especially helpful on first reading:

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.

In plain terms, common assault is where a person:

• applies force to another person deliberately; or
• threatens in a real and immediate way to apply force to another person; and
• does so without that person’s consent and without lawful justification.

Applying force covers more than you would expect. It extends to heat, light, electricity, gas, odour and any other substance or thing. It is genuinely possible to assault someone with a smell.

Note also that no injury is required. A threat backed by an apparent present ability to carry it out is enough.

The penalty

Common assault is classified as a misdemeanour rather than a crime under the Criminal Code, which reflects that it sits below the more serious assault offences. It is still a criminal offence and it still appears on a criminal history if a conviction is recorded.

The maximum is three years imprisonment, which is not trivial. Because of that maximum, common assault is normally dealt with in the Magistrates Court.

In practice, sentences depend on criminal history, the nature of the conduct, remorse, restitution and other mitigating factors. Fines, good behaviour orders, probation and community service are all common outcomes. Your solicitor’s job at sentence is to identify the factors that lower the sentence and to argue about whether a conviction should be recorded at all.

Circumstances of aggravation

Many assault offences have aggravating provisions. These apply where the circumstances, or the identity of the person assaulted, are treated as more serious than a standard assault.

Examples include an assault on a police officer, on a person with an impairment of the mind, or on a person aged 60 or over. An assault that causes bodily harm becomes a different and more serious charge under section 339.

Where aggravation applies, higher maximum penalties are available and the offence may be treated as a crime rather than a misdemeanour, which changes which court can deal with it.

Defences

On the bare definition, common assaults occur constantly. The peak hour train, the Friday night football match, the queue at the bar. What separates those from offences is that, expressly or by implication, the contact was consented to.

Unlike grievous bodily harm or assault occasioning bodily harm, you can consent to a common assault. So the first question in any charge is whether the other person consented, or whether they provoked what happened.

Beyond consent, available defences include:

• self defence, including defence of another person;
• defence of property;
• preventing violence or the commission of another offence;
• accident, meaning there was no intention and the outcome was not reasonably foreseeable; and
• provocation, in the limited way it applies to assault.

Being intoxicated is not a defence. It can be the opposite, because intoxication in a licensed premises can form part of a circumstance of aggravation and will usually be treated as an aggravating feature at sentence.

What to do if you are charged

Do not give police a statement about the incident before you have spoken to a solicitor. This is the single most common way people convert a defensible matter into an indefensible one.

Once you have advice, the work is to determine:

1. what exposure you actually have arising from the incident;
2. whether any circumstances of aggravation are alleged or available;
3. what the realistic options are on the charge itself, including whether the elements can be made out; and
4. what mitigating factors exist that could reduce the sentence or support an argument that no conviction be recorded.

A three year maximum and the possibility of aggravation make this worth taking seriously from the first phone call, even where the incident itself seemed minor at the time.