Torture

In Queensland, the offence of Torture is a serious indictable offence which criminalises the intentional infliction of severe physical pain or suffering on another person.  If a person is convicted of an offence of Torture, they will commonly be sentenced to a lengthy term of actual imprisonment. 

The maximum penalty for the offence of Torture is 14 years’ imprisonment.

What is ‘Torture?’

Section 320A of the Criminal Code (Qld) defines torture as the intentional infliction of severe pain or suffering on a person by an act, or a series of acts, done on one or more than one occasion.

The following acts can constitute ‘Torture’:

• • Targeted and escalating physical violence (such as punching, kicking, stomping) toward a person with a view to extracting information from them

• Restraining or depriving a person of their liberty and denying them food or water for prolonged periods or denying them access to medical treatment while inflicting or prolonging suffering.

What Must Be Proven?

For a person to be found guilty of Torture, the Prosecution must prove each of the following matters beyond a reasonable doubt:

1. The Defendant did an ‘act’ 
2. The Defendant’s act inflicted severe pain or suffering upon another person (the Complainant)
   • The pain and suffering caused may be mental and emotional only (no bodily harm needs to be proven) 
3. The act was done intentionally/ with the intent of causing severe pain or suffering to the Complainant.
4. The act was done on one or more occasions.

If the Prosecution is unable to prove every single one of the above elements, the person should be found not guilty of the offence.

Which Court Will Hear the Matter?

Like all offences, the offence of Torture will commence before the Magistrates Court of Queensland, but because of the nature and seriousness of this offence, the charge must go through a committal process, and will usually be finalised before the District Court of Queensland. 

Possible Defence to Torture

The following defence may be available for an offence of Torture:

1. Insanity/ Unsoundness of mind – Section 27 of the Criminal Code

• This defence will only apply if the evidence suggests the alleged offender responsible for was, at the time of the act, in such a state of mental disease or natural mental infirmity as to deprive them of the capacity to:

• • understand what they are doing, or 
  • control their actions, or 
  • know that they should not do the act.

• If the evidence suggests a person was deprived of any of the relevant 3 capacities above, the law in Queensland says that they should not be criminally responsible for their actions in perpetrating the offence. 

Common Questions about the offence of Torture

Will I go to Gaol?

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 

Because of the nature and seriousness of the offence of Torture, if a person is convicted, they will most likely face a sentence of actual imprisonment for several years or more. The length of their sentence will depend on:

• the extent to the harm caused
• the duration over which the pain and suffering was inflicted
• the vulnerabilities of the Complainant
• whether a weapon was used
• whether the Defendant has any criminal history (particularly if their previous history has included offences of violence).

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 will often be at risk of actual imprisonment if convicted of a charge of Torture, even if they have no previous criminal history.

In Queensland, any time the Court orders a term of imprisonment for an offence (even if the imprisonment is wholly suspended, or the person is granted immediate parole) the Court must record a conviction. This means the offence will appear on the person’s Court outcomes, and the person will have recorded criminal history. 

If you are contacted by Police and they want to talk to you about a charge of Torture, 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.