Common Assault

Maximum penalty: 3 years imprisonment

The Queensland Criminal Code provides for several different types of assault offences, which vary in nature, seriousness and maximum penalty, depending on the level of harm caused to the victim.   The most basic of these is the offence of Common Assault.   This offence makes it illegal to unlawfully touch or apply force to another person, directly or indirectly, without that other person’s consent.  This does not mean that every time you touch a person without first asking them for permission, you will be breaking the law.  In reality, a person’s criminal liability for an offence of common assault will usually turn on careful consideration around the surrounding circumstances of the event to determine whether the touching was unlawful (not authorised or justified by law or excused by the application of some lawful defence). This article will explain, in basic terms, when and how this offence is commonly charged and the ways a charge of Common Assault may be  defended.

What is Common Assault?

Section 335(1) of the Criminal Code (Qld) creates the offence of ‘Common Assault’ in Queensland. That section dictates that any person who unlawfully assaults another person is guilty of the offence of Common Assault. 

The word ‘assault’ has its own definition under section 245 of the Criminal Code which is set out as follows:

  “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” .

The ‘application of force’ needed to constitute an assault includes applying heat, light, electrical force, gas, odour, or any other substance or thing, where the application causes injury or personal discomfort to the other person. 

The following acts constitute a Common Assault:

• Using one of both of your hands to open palm push someone in the chest (a direct application of force)

• Punching, kicking, slapping or pinching a person, where the action does not amount to any bodily injury to them (a direct application of force)

• Using a garden hose to spray water on a person (An indirect application of force)

• Lunging at a person with a raised closed fist, as though you are about to punch them (This is a bodily act or gesture which threatens to apply force)

Circumstances of Aggravation- Increase in Maximum Penalty

There are 2 legislatively identified circumstances of aggravation for an offence of Common Assault. These will apply where:

• The accused person has published material on a social media platform to advertise their role in the commission of the assault, or to advertise the assault itself on social media;  and/or

• The accused person was motivated to commit the assault by hatred or serious contempt for a person or group of persons based on the person’s race, religion, sexuality, sex characteristics or gender identity of the person, or presumed race, religion, sexuality, sex characteristics or gender identity of the person

If a person is charged with Common Assault and either of the above circumstances of aggravation apply (and are averred formally in the charge), the maximum penalty for the offence will increase from 3 years imprisonment to 4 years imprisonment. 

What Must Be Proven?

For a person to be found guilty of Common Assault the prosecution must prove each of the following matters beyond a reasonable doubt:

1. The accused person struck, touched or applied force to the Complainant, or threatened them with immediate violence (in circumstances that made the Complainant think the accused  had the ability to carry out that threat);
2. They did so intentionally or recklessly;
3. They did so without consent;
4. They did so without lawful justification or excuse.

If the prosecution is unable to prove each of the above elements, the accused person should be found ‘not guilty’. 

Which Court Will Hear the Matter?

The offence of Common Assault is categorised as a misdemeanour. The charge will be commenced in and can be finalised before the Magistrates Court of Queensland (unless the accused person is under the age of 17 years, in which case, the matter will be dealt with before the Children’s Court).

Possible Defences to Common Assault

The following defences may be available for a charge of Common Assault:

• Provocation 

• • In some cases, a person may rely on the defence of provocation under Section 269 of the Criminal Code (Qld) to defend a charge of common assault. This defence  may be relied upon where the Complainant has provoked the accused person, and the accused person has, because of that provocation, momentarily lost the power of self-control and assaulted the Complainant suddenly and before there was time for their passion to cool.  This defence can only be relied on where the force used by the accused person toward the Complainant was proportionate to the provocation that caused the accused person to assault the Complainant.  

• • The defence of provocation cannot be relied on to defend a charge of assault if the force used by the accused person was intended to, or likely to, cause death or grievous bodily harm to the Complainant.

• Self-Defence

• • The defence of Self -Defence under section 271 of the Criminal Code (Qld) may be raised where The Complainant has assaulted the accused person first, and the accused person has responded by using force which was no more than was reasonable and proportionate in the circumstances, in order to defend themselves against the Complainant’s  initial assault. 

• Defence of Another (Aiding another to defend themselves)

• • The defence of ‘Aiding in Self-Defence’ under Section 273 of the Criminal Code (Qld) may be raised to defend a charge of Common assault if another person was being assaulted by the Complainant, and the accused person came to the aid of that other person in good faith, and used reasonable and proportionate force to assist in defending them from the Complainant’s assault. 

• Defence of property (moveable items)

• • The defence of moveable property under section 274 of the Criminal Code (Qld) may be raised to a charge of common assault where the accused person has used reasonable force to resist a trespasser from stealing/taking their property.  

• Insanity

• • The defence of unsoundness of mind under section 27 of the Criminal Code (Qld) may be used to defence a charge of common assault where it can be proved that the accused person had a mental illness which deprived them of their capacity to understand what they were doing at the time of the offence, or to control their actions, or to know that they ought not assault the Complainant. 

Common Questions about Common Assault

Will I go to jail for a Common Assault charge?

The following is a list of potential sentences a Queensland Court can make (in order of seriousness, from least serious to most serious):

• Convict and not further punish
• Release upon entering into a recognisance, with no conviction recorded (also known as a Good Behaviour Bond)
• A monetary fine
• Probation 
• Community Service
• An Intensive Corrections Order
• Suspended Orders of Imprisonment
• Imprisonment 

Which of the above sentencing options from the above list the court will prefer for an offence of Common Assault will largely turn on the facts of each case, but the following are relevant considerations for the court:

• How long the assault went on for (generally the more protracted the assault, the more serious)
• Any particular vulnerability of the Complainant
• Whether the accused person stopped assaulting the Complainant on their own or only desisted when interrupted/stopped by others. 
• Whether the accused person has previous criminal history (particularly for offences of violence)
• The impact the assault has had on the victim as expressed in any victim impact statement before the court

In Queensland, if a person commits an offence of violence, the sentencing principle that ‘imprisonment is a sentence of last resort’ does not apply.  Accordingly, a person can be at risk of imprisonment if convicted of a charge of common assault which has involved the use of actual violence toward another, even if they have no previous criminal history.

Will I receive a criminal record for a charge of Common Assault?

You will only have a disclosable “criminal record” if you are convicted of the offence (either on your own plea of guilty or after a trial) and the court orders that a conviction is recorded as a part of your sentencing process.  Unless the law stipulates otherwise, judicial officers will often have discretion as to whether they will record a conviction when they are handing down a sentence for this offence.  

In their considerations on this point, the court must have regard to all the circumstances of the case, including the nature of the offence, your character and age, and the impact that recording a conviction will have on your economic or social wellbeing or your chances of finding employment.

The consequences of a conviction, whether recorded or not, can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions (recorded or not) and a conviction for an offence of common assault might jeopardise your job or make it difficult to obtain visas for overseas travel. A conviction for an offence of violence can completely rule out certain career paths such as teaching and a range of government employment options. 

If you are contacted by police and they want to talk to you about a charge of Common Assault, or if you are charged with this offence or any other criminal matter, it’s important you receive good advice at the earliest opportunity and before speaking with police or anyone else about the matter.  

Armstrong Legal provides expert legal advice and representation for offences of this nature. Contact Armstrong Legal now to arrange an obligation free consultation.