Assault Occasioning Bodily Harm

The Offence

The law says that a person who:

• strikes;
• touches;
• moves; or
• otherwise applies force of any kind;

to another, either:

• directly; or
• indirectly;

without that person’s consent has assaulted that person.

Any person who:

• unlawfully assaults another; and
• thereby does the other person bodily harm;

is guilty of a crime.

The distinguishing factor between:

• a charge of common assault; and
• a charge of assault occasioning bodily harm;

is whether the assault resulted in “bodily harm” to the victim.

The Penalty

The maximum penalty for a charge of this nature is 7 years imprisonment.

The penalty an offender actually receives is dependent on many factors and circumstances.

These factors will be:

• whether the offender has any criminal history; and if so
• whether their criminal history involves other offences of a violent nature;
• the circumstances surrounding the offence;
• the seriousness of the injury sustained by the victim; and
• the offender’s background and character generally.

Aggravating Circumstances

Further, if the offender does bodily harm and:

• is armed, or pretends to be armed, with any dangerous weapon; or
• is in company with 1 or more other persons;

the maximum penalty increases to 10 years imprisonment.

Likely Penalties

Magistrates Court sentencing statistics show common penalties for offences of this nature. Over the last 5 years, around:

• 19% of offenders have received a fine as punishment for the offending;
• 14.5% of offenders have received a period of wholly suspended imprisonment; and
• 27% of offenders have received a period of actual imprisonment.

Imprisonment for Violence Offences

The Penalties and Sentences Act is a governing body of legislation that:

• assists the Court in determining what an appropriate penalty will be; as well as;
• promotes consistency of approach in the sentencing of offenders;
• provides fair procedures; and
• provides the Court with the power to impose the relevant penalty.

The sentencing guidelines for which the Court is to have regard to are set out in Section 9. The guidelines state that the Court should only impose imprisonment as a last resort.

This principle does not apply if the offence resulted in physical harm to another person.

Heard in The Magistrates or District Court

Assault occasioning bodily harm is an indictable offence.

The Magistrates Court may hear it summarily if the Defendant is pleading guilty.

If an offender pleads:

• not guilty; and
• elects for a trial by jury;

the prosecution will prepare an indictment to the District Court.

The charge will then proceed in the District Court.

What Is “Bodily Harm”?

The Criminal Code defines the words “bodily harm” to include:

“any bodily injury which interferes with health or comfort.”

Case law has assisted the Courts in clarifying this definition. The case of R v Scatchard (1987) 29 A Crim R 136 noted that:

“while bodily injury can cause the sensation of pain, a sensation of pain does not of itself and without more require one to say that there has been a bodily injury”.

That is to say, “pain” at the time is not enough to make out the offence, there must be some lasting effect from the injury.

Accepted injuries that constitute bodily harm by the Courts include:

• redness and swelling;
• bruising;
• scratches;
• bleeding;
• a black eye; or
• a bloody nose.

If the police have charged you with this offence, it is important to seek legal advice as soon as possible.

Alternative to The More Serious Charge of Grievous Bodily Harm

The injury sustained must fall short of something that leads to:

• permanent injury requiring medical treatment; or
• physical disfigurement;

as otherwise, the police may charge the offence as “grievous bodily harm”.

Downgrading to Common Assault

The prosecution must prove that the assault caused the victim a bodily injury. If they are not able to do this, you may have some prospects of success at negotiating the charge to a “common assault”. Common assault is less serious and carries less severe consequences.

Appearing in Court – Here to Help

Engaging a lawyer to appear with you in Court can avoid surprises and help you to know what will happen on the day.

Aitken Whyte Lawyers are focused on results. Our Criminal Defence Team have experience with handling violence offences. We have had success defending serious violence charges at trial.

If you would like to discuss your circumstances with a criminal lawyer, feel free to give us a call.

Aitken Whyte Lawyers can assist you with all criminal matters.

If you would like to:

• know more about assault offences;
• speak to a solicitor about your situation; or
• engage legal representation;

call us on 07 5408 0655 .

Office Location and Contact Details

Sunshine Coast

Maroochydore
Aitken Whyte Lawyers
11/8 Pikki Street,
Maroochydore Qld 4558
Ph: +617 5408 0655
Fax: +617 3211 9311
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