Assault occasioning bodily is a serious offence to be charged with in Queensland. This page is designed to provide information to people who are charged with assault occasioning bodily harm or just need more information about the charge and what the court process is and what the penalties may be.
A charge of assault occasioning bodily harm requires an experienced criminal lawyer to get the best result, never go to court without a lawyer with this charge.
What is Assault Occasioning Bodily Harm?
The criminal code is the legislation in Queensland that covers the charge of assault occasioning bodily harm. It provides at section 339 that;
Any person who unlawfully assaults another and thereby does the other person bodily harm is guilty of a crime
The definition of an assault is where a person strikes, touches, moves, or otherwise applies force of any kind to another person, directly or indirectly, without the other person’s consent or threatens to apply force of any kind to another provided that the person making the attempt or threat has the ability to carry it out.
Bodily harm means any injury that interferes with the complainant’s health or comfort. As you can see even a fairly minor injury could meet the definition of bodily harm.
How do the police usually investigate this charge?
The police are usually called to investigate after receiving a complaint from the victim or a witness. Generally the police will take a statement of the victim and any other person that witnessed the assault. They will then seek out any CCTV or other footage. Finally they will seek out the alleged defendant and see if they will make a statement (if you are asked to give a statement always seek legal advice before agreeing).
What do the police or DPP need to prove?
To successfully prosecute the charge of assault occasioning bodily harm the police or Department of Public Prosecutions (“DPP”) must prove beyond a reasonable doubt that;
- The assault took place;
- The assault was unlawful; and
- That the injury amounted to bodily harm.
What court hears the charge of assault occasioning bodily harm?
The charge of assault occasioning bodily harm can be heard in the Magistrates court only if the defendant agrees, if they do not agree the charge must be heard in the District Court. If the matter is determined in the Magistrates court then the police prosecution unit will be the prosecutor. If the matter is heard in the District court then the DPP will prosecute the matter.
What defences to assault occasioning bodily harm exist?
In Queensland a prosecutor must prove on the evidence that a person committed an offence. A person who is charged with a criminal offence may defend themselves by relying on a number of defences or combination thereof. We have a separate article on defences to an assault charge.
A number of defences may be available to an assault charge these include;
- provocation
- self defence
- accident
- duress
- necessity
The defence most often raised for an assault occasioning bodily harm charge is self defence, self defence of another or provocation.
If successful, a defence may result in a charge being reduced to a lesser offence, the charges being withdrawn, or a person being acquitted (found not guilty) of the offence. The two most common defences used against assault charges are Provocation and Self Defence. While these are the most common, there are a number of other factors that can help build a possible defence.
Provocation
Under section 268 of the Criminal Code provocation provides a complete excuse with relation to an assault charge. This does not make the act lawful however it does absolve you of any criminal responsibility resulting from the assault.
Provocation is defined as “any wrongful act or insult of such a nature as to be likely, when done to an ordinary person…to deprive them of the power of self-control, and to induce to person to assault the person by whom the act is done”.
In order to prove provocation, there must be both a loss of self-control and provocative conduct from the person assaulted. Generally the response must be immediate or in the heat of the moment. The burden is on the accused to bring sufficient evidence to satisfy the court of provocation.
Provocation is not a defence when charged with Grieves Bodily Harm or Wounding.
Self Defence
Unprovoked Assault
Under section 271 of the Criminal Code an individual can use as much force as is reasonably necessary to defend themselves against an unprovoked assault. The force used must be proportionate to the perceived threat. This means that the use of force must be less than or equivalent to the force of the assault.
Provoked Assault
Under section 272 of the Criminal Code if a person assaults someone or provokes an assault that person may then use reasonable force to protect themselves if the other person responded with such violence that the person who provoked it would reasonably fear they may suffer death or grievous bodily harm.
This defence is not open to a person who’s initial assault or provocation is done with the intent to kill or do grievous bodily harm or where they use force which could cause death of grievous bodily harm prior to it being necessary.
Acting in The Aid of Others
Under section 273 of the Criminal Code in any circumstance where self-defence may apply it is also lawful for a person outside of the initial altercation who is acting in good fail to use a similar degree of force for the purpose of defending another person.
Can this charge be withdrawn or reduced?
It is possible to negotiate with the prosecutor over the charges. This is known as case conferencing and usually occurs once the police prosecutors brief (known as the QP9) is provided to the defendant or their lawyer. The QP9 will set out what the police prosecutor intends to tell the court happened. This includes the details of the alleged assault, what injury the victim has suffered and any reason why the assault may have occurred.
Some examples of successful case conferencing we have achieved are;
- An AOBH charge was withdrawn as our client was acting in their own self-defence after being confronted and threatened by the complainant in a pub.
- Had the AOBH charge withdrawn as our client was protecting his partner after she was attacked by the complainant.
- Convinced the prosecutor to reduce the charge to common assault as we were able to show the injuries did not fit the definition of AOBH. Reducing the charge to common assault meant the client was punished with a fine only and no conviction was recorded.
- Having the prosecutor withdraw the charge after we were able to show our client was provoked by a number of racial remarks were yelled at him over an extended period.
- Being able to convince the prosecutor to withdraw the charge after convincing them that the complainant’s statement was unreliable and he was grossly intoxicated at the time of the offence.
- Having the AOBH charge withdrawn by the prosecutor after we showed that the CCTV footage was unclear and that they could not be satisfied that it was our client that assaulted the complainant and that other person’s present could have inflicted the injury.
For more information on other case conferencing success stories for assault charge please click here.
What are the potential penalties if pleading guilty or being found guilty?
The charge carries a maximum penalty of 7 years imprisonment or 10 years if the assault took place in company with another person or if the defendant was armed or pretended to be armed with a weapon.
The court has a wide variety of penalties it can impose for a person pleading guilty to or found guilty of an assault charge, the type of penalty the court might impose depends on the charge, the circumstance of the offending, the person’s previous criminal history and the injuries suffered by the victim. The types of penalties the court could impose includes;
- Good behaviour bond
- Fine
- Community service
- Parole
- Jail sentence with immediate parole
- Jail sentence wholly suspended
- Intensive corrections order (ICO)
- term of actual imprisonment
For a full explanation of the types of penalties for assault charge click here.
In practise the court would rarely impose a penalty less than a fine. In most cases the penalties range from a fine to actual imprisonment, of the 4,638 assault occasioning bodily harm charges heard in Queensland Magistrates court since October 2014 the results expressed as a percentage were;
|
Good behaviour bond |
3.6% |
|
Fine |
26.3% |
|
Probation |
19.1% |
|
Community Service |
6.3% |
|
ICO |
1.0% |
|
Prison (suspended) |
13.8% |
|
Prison (actual) |
29.7% |
As the statistics show in almost one third of cases a person is sentenced to a term of actual imprisonment.
Can Clarity Law help me?
Engaging Clarity Law gives you the best chance at obtaining avoiding a jail sentence or not having a conviction recorded. We appear every week in the courts with people charged with assault, it is this experience that allows us to get the best result for clients. Other law firms simply don’t have the experience that we do.
- we know the judges and what they want to hear to give you the best outcome
- we have good relationships with the prosecutors meaning we can often have them not seek a jail sentence
- we are there to help you through the process and make everything as stress free as possible, in most cases you will not have to say anything in court
- engaging us shows the court you are taking your charges seriously
- your matter will be heard early, often first, you do not have to wait for 20-30 other matters to be heard before you
- you will be fully informed of what is to happen in court and what this means for you after court
- unlike the police, the prosecutor or the Judge, we are there to look after you, your privacy and your interests
Do you have an office near me?
We appear in every court in South East Queensland between The Gold Coast and Bundaberg and out to Toowoomba and beyond. We also have a 5 star rating on Google and Facebook. Check out of customer testimonials here. We have offices at:
Sunshine Coast
Level 3, 14-18 Duporth Avenue
Maroochydore 4558
Phone: 1300952255
Brisbane
Level 1, 16 McDougall Street
Milton
Phone: 0730677017
Southport
Level 15, 2 Corporate Court
Bundall
Phone: 0756132683
Loganholme
Level 2, 3972 Pacific Highway
Loganholme
Phone: 0736680683
Ipswich
16 East Street
Ipswich
Phone: 0734850147
Brendale
3/22-24 Strathwyn Street
Brendale
Phone: 0734850184
What courts do you appear in?
We appear in every court in South East Queensland including;
Brisbane
Holland Park Magistrates Court
Gold Coast
Sunshine Coast
Maroochydore Magistrates Court
Ipswich
Darling Downs
Other articles that may be of interest
- Your right to silence
- Negotiating with a Prosecutor in Queensland
- Court character references
- The difference between a conviction and non-conviction
- Declining a police interview
- A guide to an Assault Occasioning Bodily Harm Charge
What would happen if I contacted you?
Your call, email or contact us form will be handled by our founder Steven Brough or client liaison manager Belinda Smyth. They have over 40 years legal experience between them. They can give immediate advice and assistance. We will discuss your case, provide guidance and send a fixed price quote by email with additional relevant information about your assault occasioning bodily harm charge, all at no cost.
If you want to engage us then it’s easy, there is a form you can complete and email back or complete online. If you don’t want to engage us or want to engage another firm that’s fine, you won’t be hassled and at worst you will just have more information about your charge. Once engaged one of our lawyers will go through your matter and contact you to discuss what the best way forward is to achieve the best results. Every one of our lawyers are very experienced with thousands of courts appearances between them and they know the courts and the Magistrates and Judges.
You will never be hassled to come with us.
How do I get more information or engage Clarity Law to act for me?
If you want to engage us or just need further information or advice then you can either;
- Use our contact form and we will contact you by email or phone at a time that suits you
- Visit our website at www.claritylaw.com.au
- Call us on 1300 952 255 seven days a week, 7am to 7pm
- Email This email address is being protected from spambots. You need JavaScript enabled to view it.
Disclaimer: This article is for general information and is not legal advice. The law or the practice of the court may have changed since this article was published. Always obtain legal advice if you need to appear in court.
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