This article was written by Lisa Taylor - Senior Associate - Gympie
Lisa holds a Masters in Law and a Bachelor of Laws. She also holds a Graduate Diploma of Legal Practice from the Australian National University and is admitted as a Lawyer to the Supreme Court of Queensland and as a solicitor to the High Court of Australia. As a senior associate, Lisa’s focus is on advocacy. She ensures all clients...
Circumstances of Aggravation (Qld)
When an offender is charged with a criminal offence, they are also often alleged to have committed the offence under circumstances of aggravation. Section 1 of the Criminal Code Act 1899 defines a “circumstance of aggravation” as any circumstance where an offender is liable to a greater punishment than they would be liable to if the offence were committed without the existence of that circumstance.
Circumstances of aggravation
Aggravating factors are factors particular to an alleged offence which may warrant a higher penalty. These generally refer to the circumstances of the offence or of the victim. Criminal statutes identify specific factors that should result in harsher punishments.
A common aggravating factor is a prior record for similar offending. This is an aggravating factor in relation to many traffic offences such as drink driving. Other aggravating factors typically relate to the circumstances of the offence itself, such as the use of a weapon or the severity of the injuries suffered by the victim of an assault. Other examples of circumstances of aggravation for an assault in Queensland are that the offender was intoxicated or that the assault occurred in a public place.
Repeat Offences
A court will usually impose a harsher penalty upon a defendant with prior convictions for similar offending. In some cases, this is mandated by legislation, such as for drink driving, for which the Transport Operations (Road Management) Act 1995 sets out different penalties for a first, second and third or subsequent offence.
Vulnerability of the Victim
In Queensland, in relation to some types of offending, courts will impose a harsher sentence if the victim is found to have been in a vulnerable category, either according to an objective standard or in relation to the defendant.
Vulnerability of a victim may be based upon the age of the victim, a circumstance that makes them particularly vulnerable or their relationship with the offender. For example, sex offences against children carry different maximum penalties depending on the age of the child involved and their relationship with the offender. The harshest penalties apply to sexual acts with children below the age of 12, children who are lineal descendants of the accused or who are under the accused’s guardianship or care.
How do I know if my charge includes circumstances of aggravation?
A circumstance of aggravation must be charged in the indictment or bench charge sheet that describes the offence when an offender is initially charged. It is then up to the Crown or police prosecution to prove beyond a reasonable doubt that the aggravating circumstance existed.
To determine whether or not your charge includes a circumstance of aggravation you need to look at the section of the legislation that you are being charged under. If the offence is in simpliciter it will read with the section number followed by a single subsection, such as 339 (1) of the Act, which is the offence of assault occasioning bodily harm. If the offence was alleged to have been committed whilst armed or in a company (which are circumstances of aggravation) the section will read as section 339 (1) and (3).
Generally, when an offence is found to have been committed under a circumstance of aggravation, the maximum penalty increases. For example, the offence of assault occasioning bodily harm carries a maximum penalty of seven years imprisonment, whereas assault occasioning bodily harm whilst armed or in company carries a maximum penalty of ten years imprisonment.
Challenging a circumstance of aggravation
A person may choose to contest a charge that involves a circumstance of aggravation entirely. Alternatively, the defendant may wish to plead guilty to the offence, but contest the circumstance of aggravation.
If a circumstance of aggravation is contested, the prosecution bears the onus of proof. This means that the prosecution must prove beyond reasonable doubt that the circumstance of aggravation existed at the time of the offence.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.