What is Common Assault?
Common assault is the most frequent assault charge heard by the Queensland courts. It refers to the unlawful use of force or the threat of force against another person without their consent.
According to Section 245 of the Queensland Criminal Code:
- Assault: “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…is said to assault that other person, and the act is called an assault.”
- Attempted Assault: Includes attempts or threats to apply force if the person making the threat has the present ability to carry out their intention.
- Application of Force: Includes not just physical contact but also the application of heat, light, electrical force, gas, odour, or any other substance causing injury or discomfort.
What are the Forms of Common Assault?
Physical Assault
Common assault typically arises in situations like pub brawls, disputes between groups, or physical altercations at workplaces. The forms of physical assault include but are not limited to:
- Slapping
- Pinching
- Pushing
- Punching
- Kicking
Non-Physical Assault
A person can be charged with common assault for merely threatening to assault someone, even if no physical contact occurs. This includes:
- Verbal Threats: Seriously threatening someone with harm if the person has the capacity to do so.
- Gestures: Actions that imply an imminent attack, like raising a fist.
How Serious is Common Assault?
While common assault is considered less severe than aggravated assault, it is still a serious offence. The context of the assault, such as the victim’s vulnerability or the assailant’s intent, can impact how seriously the crime is viewed.
A conviction for common assault will result in a permanent criminal record, which can have significant social implications. This includes the stigma associated with having a criminal record and the potential loss of employment or social standing.
Evidence Required to Charge for Common Assault in Queensland
The prosecution must prove to the Magistrate beyond reasonable doubt that the assault occurred and that the accused intended to cause harm or fear of harm.
There are three main types of evidence that can be used in court for these cases:
- Witness Testimony: Statements from the victim and any bystanders.
- Physical Evidence: Medical reports, photographs of injuries.
- Video Evidence: CCTV footage, recordings from smartphones.
Defending Common Assault Charges
Several defences may be available to those charged with common assault, including:
Self-Defence which means the accused was acting to protect oneself from harm. Consent whereby the victim consented to the act (though this is rare and complex). Lack of Intent indicates that the act was accidental without any intent to harm or cause fear. Provocation is an applicable defence where the accused was provoked into committing the assault. Duress whereby the accused was forced to commit the assault under threat. Necessity would mean the assault was necessary to prevent greater harm.
Pleading Guilty to Common Assault Charges
If you decide to plead guilty to a common assault charge, you will appear before a Magistrate for sentencing. The vast majority of common assault cases are resolved in the Magistrates Courts in Queensland. When sentencing, the Magistrate will consider the facts of the case, any previous criminal history, and your personal circumstances. It is crucial to present your circumstances clearly to ensure the Magistrate understands the full context, especially if you are seeking that no conviction is recorded, which can help avoid future implications of having a criminal record.
Pleading Not Guilty to Common Assault Charges
If you plead not guilty, you may elect to take the matter to trial. In the Magistrates Court, there is no jury; a Magistrate will hear the case. The prosecution will provide a brief of evidence to your lawyers, including statements from the alleged victim(s), witnesses, and any forensic evidence. During the trial, witnesses and experts will give oral evidence and be available for cross-examination. You have the right to testify in your defence or choose not to give evidence at all.
Legal Consequences and Sentencing
Section 335 of the Queensland Criminal Code states that the maximum penalty for common assault is 3 years imprisonment. Lesser penalties can include fines, community service, or probation, depending on the severity and circumstances. If it is your first time being charged with assault and you have no criminal history, you may face lesser penalties.
Factors influencing sentencing for common assault include the nature of the assault, such as physical harm, use of a weapon, and previous offences; the psychological and physical impact on the victim; and mitigating factors such as the offender’s remorse, cooperation with authorities, and willingness to rehabilitate.
Sentencing Considerations
When sentencing someone for common assault, the court is guided by the Penalties and Sentences Act. Key considerations include:
- The risk of physical harm to the community if a custodial sentence is not imposed.
- The need to protect the community from that risk.
- The personal circumstances of the victim.
- The circumstances of the offence, including any injury or damage caused.
- The nature or extent of the violence used or intended.
- The offender’s record, including any attempts at rehabilitation and previous offences.
- The offender’s age, character, and antecedents.
- The offender’s remorse or lack thereof.
- Relevant medical, psychiatric, prison, or other reports.
When Does Common Assault Become Domestic Or Family Violence?
The main difference between common assault and domestic violence lies in the context and relationship between the parties involved. Both offences involve violence or threats, but domestic violence is specifically defined by the relationship between the parties, typically involving partners, family members, or household members. In contrast, common assault can occur between any individuals, regardless of their relationship.
How Smith Cambridge Lawyers Can Help
Facing common assault charges can be daunting. The experienced legal team at Smith Cambridge Lawyers is here to provide expert guidance and robust defence. We understand the complexities of Queensland law and are dedicated to protecting your rights and achieving the best possible outcome for your case. Contact us today for legal advice tailored to your specific needs and charges.
