If you’ve recently been accused of common assault, you’ve likely heard several legal terms and wondered what they meant and how they applied to your situation. Conviction for this act tends to vary depending on the incident in question and where it occurred. If you have been charged with common assault, it is important to understand what this means for you and what distinguishes it from other violent offences.
What is common assault?
Common assault is the least serious and most recurrent of the available assault offences. It does not require overly aggressive or violent behaviour and captures a wide array of criminal behaviours. Under s 245 of the Criminal Code Act 1899 (Qld), assault is any non-consensual threat or actual striking, touching or application of force. Common assault is a form of unlawful assault and makes verbal abuse, threats of violence and other assault causing minor or non-lasting injuries, a misdemeanour.
What is the sentence for common assault?
The maximum sentence prescribed by the Criminal Code is three years imprisonment. As common assault is considered a misdemeanour, rather than a crime, the punishment tends to be less severe. Depending on criminal history, and the conduct or remorse of a defendant during the court process, this act will often be punishable by fines, good behaviour bonds, community service orders or probation.
What can aggravate a charge of common assault?
Common assault may be aggravated where the assault is committed by an intoxicated individual in a public place. When this occurs, a community service order will be made by the court. This means that the defendant will be required to perform unpaid community service (such as removing graffiti or cleaning litter) for a specified period of time. This period of time can range from 40 to 240 hours.
Other forms of aggravation include assault of aircraft crew, police officers, public officers, people with disabilities or those aged over 60 years. Common assault will be considered a more serious offence where the assault causes bodily harm, is done with the intent to commit a crime or interferes with the freedom of trade or work, amongst other aggravations. In these circumstances, the offence is considered a crime, rather than a misdemeanour.
Where the assault is to be considered a more serious offence, the sentencing will be more stringent and may vary from 7 years for assault occasioning bodily harm, to 14 years for serious assault where the offender pretends to be armed with a weapon. It is still possible however, given a defendant’s criminal history and behaviour, for a sentence not involving imprisonment. Given the nature of the offence, the punishment will still be harsher than that of common assault.
How can you get a lesser sentence for common assault?
To get a lesser sentence for common assault, a defendant may be able to use one of the defences available to this charge. The availability of a defence is entirely based on the facts and circumstances of an assault. Available defences include provocation, self-defence or accident.
If a defendant wishes to use provocation as a defence, they will need to prove that as a response to an act or insult, they lost control of their actions and responded in a way that a reasonable person would, proportionate to the incident. It will not be considered provocation if the incident was a request to follow lawful instructions.
Where a defendant claim self-defence, they must determine whether it was defence against an unprovoked or a provoked assault. Where the defence is used against an unprovoked assault, the defendant must prove they committed to offence to prevent an attack and they did so with appropriate force and without malice. If the offence was against a provoked assault, it will only be an applicable defence if the defendant was doing so to prevent death or grievous bodily harm.
Also available to a defendant is adult restorative justice conferencing, also known as justice mediation. This voluntary process allows for the victim and the defendant to meet in controlled circumstances and discuss the events, the effects and how to repair the harm caused to the victim. An impartial third party, called the convenor, helps facilitate the discussion to reach an outcome favourable to both parties. If justice mediation does not end favourably, the matter will continue to process through the court.
In Queensland, everyone is entitled to a robust defence and a thorough evaluation of incidents that occur. Whether common assault resulted from provocation or was an act of self-defence, these are some of the things we want to know about at Russo Lawyers. We will get to the bottom of whatever you’ve been charged with, so you know your rights and are supplied with the best legal strategy moving forward. Please contact us to arrange a consultation so we can inform you how best to proceed.