By: Andrew Anderson
Published: 25 November 2020
Published: 25 November 2020
By: Andrew Anderson
Assault Occasioning Bodily Harm – Queensland
Assault occasioning bodily harm is a serious criminal offence, which is punishable by actual imprisonment. The term ‘bodily harm’ refers to any bodily injury that interferes with health or comfort. The maximum penalty is 7 years’ imprisonment, although if a circumstance of aggravation applies, it rises to a maximum of 10 years’ imprisonment.
Each legal issue is unique. This information cannot – and is not meant to – substitute legal consultation. It is designed to outline information of a general nature to people who want to learn more about the offence of assault occasioning bodily harm in Queensland.
If you face an assault occasioning bodily harm charge, contact Anderson Legal. This firm provides expert advice and representation. Andrew Anderson is a former Principal Crown Prosecutor and is recognised as a leading criminal defence lawyer in Queensland. He has substantial experience in assisting individuals with charges of this nature.
- Queensland Law
- Possible Defences
- Penalties & Sentences
- Significant Cases
Section 339 Criminal Code (Qld)
Section 339 of the Criminal Code makes assault occasioning bodily harm an offence in Queensland. The law states:
(1) Any person who unlawfully assaults another and thereby does the other person bodily harm is guilty of a crime, and is liable to imprisonment for 7 years.
(3) If the offender does bodily harm, and is or pretends to be armed with any dangerous or offensive weapon or instrument or is in company with 1 or more other person or persons, the offender is liable to imprisonment for 10 years.
(4) The Penalties and Sentences Act 1992, sections 108B and 161Q also state a circumstance of aggravation for an offence against this section.
(5) An indictment charging an offence against this section with the circumstance of aggravation stated in the Penalties and Sentences Act 1992, section 161Q may not be presented without the consent of a Crown Law Officer.
The reference to s. 108B relates to mandatory community service being ordered when the offence is committed in a public place while the person is adversely affected by drugs or alcohol. It is in addition to any other penalty imposed.
Section 161Q of the Penalties and Sentences Act 1992 refers to the ‘serious organised crime circumstance of aggravation’, which mandates a significant mandatory minimum imprisonment in addition to any other penalty. It targets people who commit an offence of assault occasioning bodily harm in association with being a participant of a criminal organisation.
The meaning of the word ‘assault is defined in section 245 of the Criminal Code (Qld) to mean the following:
Definition of assault
(1) 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, or with the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an assault.
(2) In this section—
applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.
Bodily Harm: Definition
The meaning of the word ‘assault is defined in section 245 of the Criminal Code (Qld) to mean the following:
bodily harm means any bodily injury which interferes with health or comfort.
It is important to note that the definition requires both a “bodily injury” as well as an interference with “health or comfort”. For this reason, it has been held that evidence to the effect of “it hurt” is not capable of meeting the definition without proof of it being caused by an identifiable bodily injury: Scatchard v R (1987) 277 A Crim R 136.
The definition captures a wide variety of physical injuries. The nature and extent of injuries suffered is relevant to the penalties imposed. While it is not necessary in many cases, often expert medical opinions are sought by police and prosecutors to explain the nature of the bodily injuries suffered by an alleged victim.
Assault Occasioning Bodily Harm: Elements
For every criminal charge in Queensland, there are ‘elements’ that the prosecution must prove beyond reasonable doubt. Failure to prove just one element means the person charged must be found not guilty. Sometimes there will be an alternative offence that a person may then be found guilty of instead if proof of the primary charge fails.
There are different ways elements may be expressed, depending on the issues in a given case. However, elements the prosecution must always prove for a charge of assault occasioning bodily harm are as follows:
- The defendant assaulted the alleged victim;
- The assault was unlawful; and,
- The assault did ‘bodily harm’ to the alleged victim.
In cases where multiple defendants are charged, Queensland law makes it possible for more than one person to be found guilty for the commission of an offence. For instance, a person may be found guilty if they aided or encouraged another person to do the act that causes the assault occasioning bodily harm.
In some cases, the prosecution will also be required to prove any circumstances of aggravation relied upon. For the offence of assault occasioning bodily harm, there are a number of possible circumstances of aggravation:
- The accused person was, or pretended to be, armed with a dangerous or offensive weapon or instrument;
- The accused person was in company with one or more other person or persons;
- The accused person committed the offence in a public place while adversely affected by an intoxicating substance; or,
- The accused person committed the offence as a participant in a criminal organisation.
If a person is convicted of a circumstance of aggravation, it may affect the maximum penalty or minimum penalty that may be imposed for the offence.
In reviewing an individual case, the work of a criminal lawyer often begins with a careful analysis of the evidence to determine the strengths and weaknesses of the prosecution case and, in particular, its ability to prove each element of the offence.
The ‘presumption of innocence’
When people think about a ‘defence’ to a charge, such as assault occasioning bodily harm, they generally thinking about what makes them ‘not guilty’ of the offence. However, it is for the prosecution to prove they are guilty – and to do so beyond a reasonable doubt. The presumption of innocence means that the defendant carries no onus of proof. What that means in practical terms is that it is for the prosecution to disprove any defences raised on the evidence.
For a charge of assault occcasioning bodily harm, the prosecution must prove the elements of the offence beyond reasonable doubt. However, it must also exclude all defences that may apply beyond reasonable doubt. Of course, a defendant may give or call evidence that points to their innocence. The decision to give or call evidence does not shift the onus of proof away from the prosecution.
How are defences raised on the evidence?
A defence may be raised on the evidence of both the prosecution and the defence. That is, people who give witness statements to police may indicate that an event occurred accidentally, or a person appeared to act in self-defence. Generally speaking, the prosecution have an obligation to call all material witnesses at a trial – even those unfavourable to its case. Alternatively, a person charged with an offence may also call their own witnesses at a trial, which may provide the basis for a defence to be raised.
One of the important roles of a criminal lawyer is to identify, as early as possible, the relevant defences that may apply in a given case. The reason it is important to do it as early as possible is to ensure relevant witnesses are found while matters are freshest in their mind, or to prevent other evidence being lost or destroyed.
Common defences for ‘assault occasioning bodily harm’
The law requires the prosecution to prove that the assault occasioning bodily harm was caused ‘unlawfully’. That means if the prosecution cannot disprove the act or omission was authorised, justified or excused by law, the person charged must be found not guilty. In Queensland, possible defences include:
- Defence of another
- Extraordinary emergency
- Mistake of fact
- Prevention of the repetition of an insult
- Self defence
- Unwilled act
Amongst the most important advice a lawyer can provide is whether or not a defence applies to an individual case. In some cases, multiple defences may apply. In others, no defence may be considered viable. Certain defences cannot operate together. For this reason, anybody facing a charge of assault occasioning bodily harm should seek early, authoritative advice from an experienced criminal lawyer to understand their legal position.
Penalties & Sentences
The maximum penalty for assault occasioning bodily harm in Queensland is 7 years’ imprisonment, when no circumstance of aggravation applies. If the offence is committed “while armed” or “in company”, the maximum penalty increases to 10 years’ imprisonment.
If a person is convicted of the serious organised crime circumstance of aggravation, the penalty may exceed 10 years’ imprisonment.
While many offences under Queensland law do not carry mandatory minimum sentences, assault occasioning bodily harm does when a person is convicted of one of two circumstances of aggravation:
- When a person is convicted of committing the offence in a public place while adversely affected by an intoxicating substance, besides whatever other penalty may be imposed by the court, a community service order of up to 240 hours must also be ordered.
- When a person is convicted of committing the offence and the serious organised crime circumstance of aggravation applies, 7 years’ imprisonment is automatically imposed cumulatively on the sentence the court decides. The 7 years’ imprisonment must be served wholly in prison, on top of whatever other penalty is set by the court.
Sentencing in Queensland
For a charge of assault occasioning bodily harm, the Penalties and Sentences Act 1992 (Qld) sets out a range of relevant sentencing considerations, including that the principle that imprisonment should be imposed as a last resort does not apply. For a violent offence, the law states that the court must have primary regard to the following considerations:
- the risk of physical harm to any members of the community if a custodial sentence were not imposed;
- the need to protect any members of the community from that risk;
- the personal circumstances of any victim of the offence;
- the circumstances of the offence, including the death of or any injury to a member of the public or any loss or damage resulting from the offence;
- the nature or extent of the violence used, or intended to be used, in the commission of the offence;
- any disregard by the offender for the interests of public safety;
- the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed;
- the antecedents, age and character of the offender;
- any remorse or lack of remorse of the offender;
- any medical, psychiatric, prison or other relevant report in relation to the offender;
- anything else about the safety of members of the community that the sentencing court considers relevant.
If the offence is classified as a ‘domestic violence offence’, then the court will treat that as an aggravating factor unless exceptional circumstances are shown. Due to the number of issues that can aggravate or mitigate the punishment imposed by a court, experience shows that the earlier a person facing a charge obtains sound advice from an experienced lawyer, the better their chance of securing the best outcome possible for their situation.
There are many possible penalty outcomes for a charge of assault occasioning bodily harm. While the circumstances of the specific case will heavily influence the outcome, principles have developed to see courts strongly punish instances of violence in public settings. In a case involving significant violence outside the Caxton Hotel in Brisbane, the Attorney-General appealed against the sentences of three individuals on the basis the penalty imposed was manifestly inadequate. In allowing the appeal (R v Walsh, Sayer & Thompson; ex parte A-G  QCA 217), the Court stated:
Ordinarily a cowardly vicious attack such as occurred outside this hotel, with three men aggressively attacking another, punching, kicking and dragging him about, while at a stage he was likely unconscious, conceding that they inflicted bodily injury, would warrant a term of imprisonment, even where the offenders were first offenders, and even if wholly suspended. That is because violence associated with hotels, especially by groups of men towards lone victims, must be strongly deterred.
With respect to assaults on officials who have important community functions, in R v Nagy  QCA 175, it was said by Justice Williams at paragraph :
Certainly the duties imposed on police officers put them in a particularly vulnerable position and because they are responsible for maintaining law and order in our society the courts must protect them from attack. But the role of a guard on the railways is not all that different. Part of a guard’s responsibility is to ensure the safety of the travelling public and it is their duty to confront anyone who is perceived to be a threat to the safety of the travelling public. Attacks on such officials, particularly cowardly attacks by groups of drunken youths, must be severely punished. In a number of recent cases this court has indicated that stern penalties should be imposed for serious violent offences committed upon innocent people in public places.
While there are many different possible outcomes for the offence of assault occasioning bodily harm, these cases serve to illustrate that certain factors weigh heavily in determining the appropriate penalty.
The charge of assault occasioning bodily harm has involved a number of significant legal decisions over time. These decisions, among others, shape the advice of lawyers who are called to represent individuals charged with assault occasioning bodily harm.
Queensland Court of Appeal
In R v Fowler; R v Aplin  QCA 258, the Court of Appeal considered whether several series of assaults could properly (as a matter of law) be grouped into a single charge of assault occasioning bodily harm. On appeal, while it was concluded that a series of blows may be regarded as composite parts of the one assault, it was an error for the prosecution to charge one assault in circumstances where there was more than one series of assaults. In the leading judgment of the Court of Appeal, Justice Fraser stated at paragraph :
Whilst it was legitimate to group series of acts within one allegation of assault, it was not permissible to charge every such series as one offence.
In R v Morrow & Flynn  2 Qd R 309, in a case where the evidence established at least seven separate incidents of violence for a single charge of assault occasioning bodily harm, it was stated by Justice Connolly at page 313:
The nature of the Crown case was never made clear, whether by particulars or otherwise. By this I mean that it was never made clear what precise offence was charged against the appellants or, if it was sought to have the indictment understood not in its natural sense but as charging several acts by each of them, what those acts were. Even regarding the indictment as charging conjoint responsibility for the one offence, there was more than one such offence. It follows that what really happened in this trial is that the jury was faced with evidence of some seven offences where one only was charged and that they were left to decide for themselves of which offence, if any, they were prepared to convict.
The case therefore was one in which there was … a latent ambiguity in the indictment.
In both cases, the convictions were quashed as a result of the way the prosecution had charged the offences. The cases serve to highlight that criminal defence lawyers ought to carefully consider the manner in which the prosecution elects to charge a person accused of assault occasioning bodily harm, as improper charging practices can lead to wrongful convictions.
The following violent offences are possible charges that may be substituted for, or charged in addition to, a charge of assault occasioning bodily harm: