Common assault in QLD sits at the bottom of a ladder of assault charges, and where you land on that ladder gets decided by things that seemed tiny at the time. Whether anyone was hurt. Whether your mates were there. Who the other person turned out to be. What happened to be in your hand.

Same night, same fight, different charge, very different trouble. This explains what actually separates them, so you can work out where yours sits.

What counts as an assault in the first place

Every charge on the ladder is built on the same idea, and it's broader than most people's.

You assault someone if you apply force to them, directly or indirectly, without their consent. But it also covers threatening or attempting to apply force with a movement or gesture, if it looked like you could actually go through with it. Words on their own aren't enough, so a threat yelled from across the road with nothing to back it up is a different thing.

Two consequences worth sitting with. No injury is required. And no contact is required either. If you want the reference, it's section 245 of the Criminal Code.

Rung one: common assault in QLD

This is the basic charge, and it applies when nothing else lifts it higher. The Criminal Code sets the maximum at three years.

A push. A shove. A slap that leaves no mark. A thrown drink. Grabbing someone by the shirt. On the right facts, all of those sit here. Our common assault page covers how these are dealt with.

Rung two: assault occasioning bodily harm

If the other person was hurt, you move up a rung and the Criminal Code sets the maximum at seven years. If you were armed, or pretending to be, or you had other people with you taking part, it becomes ten.

Two bits of that do a lot of damage to people.

Pretending to be armed counts. You don't need an actual weapon. A hand shoved in a jacket pocket can be enough on the right evidence.

Having mates there counts. Simply having other people with you, joining in, adds three years to the maximum. A one on one scuffle and the same scuffle with two friends involved are not the same charge, and almost nobody expects that.

What "bodily harm" actually means

This is the definition that decides whether you're on rung one or rung two, and it's set far lower than people assume.

The Criminal Code defines it as any injury that interferes with someone's health or comfort. Not permanent. Not serious. No treatment needed. A bruise. A split lip. Being sore for a day.

Which is why what the other person said about their injuries, and what any medical evidence says, matters so much. The line between the two charges is often one sentence in a statement. Our page on assault occasioning bodily harm sets out how those run.

Rung three: serious assault

This one has nothing to do with how badly anyone was hurt. It's about who they were, or why you did it.

The Queensland Sentencing Advisory Council describes it as covering assaults on police doing their job and people helping them, on public officers, on anyone performing a duty imposed by law, on people aged 60 or over, and on people who rely on a guide, hearing or assistance dog, a wheelchair or another aid. It also covers assaults done with intent to commit a crime or to resist arrest.

The Council reports the maximum as seven years, going to fourteen for certain worse forms involving police and public officers, including biting, spitting, throwing bodily fluids, causing bodily harm, or being or pretending to be armed.

This is the rung people arrive at without any idea they're heading there. A struggle during an arrest, or a shove aimed at someone who happens to be 62, changes what you're charged with even though the force didn't change at all.

Our page on serious assault covers this area.

Above the ladder: wounding and grievous bodily harm

Two further charges sit above the three rungs, and they turn on the kind of injury rather than on anything about the circumstances.

Unlawful wounding is charged where the injury involves the skin being broken. Under the Criminal Code the maximum is seven years. The test for what counts as a wound is more technical than it sounds, which is why it is worth having checked against the actual medical evidence rather than assumed from a photograph. This charge is regularly laid in matters that began as a fight with a glass or a bottle.

Grievous bodily harm is the most serious of them. The Queensland Sentencing Advisory Council reports the maximum as fourteen years, and the injury has to be genuinely serious. The Criminal Code definition covers losing a distinct part or an organ of the body, serious disfigurement, or an injury that, if left untreated, would be likely to endanger life or cause permanent injury to health.

The gap between "interferes with health or comfort" and that is enormous. It's the difference between a bruise and a fractured eye socket.

Why which charge you're on decides everything else

Three practical things follow.

Which court deals with it. Most of these can be heard by a magistrate rather than a judge and jury, but the rules differ. For some, the prosecution chooses. For others, you can insist on a jury trial. For others there's no choice. And a magistrate can decide to send a matter upstairs if they think they couldn't punish it properly at their level. Which of those applies to your particular charge is worth pinning down early.

How much you can get. The Queensland Sentencing Advisory Council puts the magistrate's ceiling at three years, whatever the section's own maximum says. So staying in the Magistrates Court matters.

How much room there is to negotiate. Because the rungs turn on specific facts, there's often a genuine argument about which one the evidence actually supports. Whether the injury really meets the bodily harm definition. Whether the others present were taking part or just standing there. Whether the officer was actually acting in the execution of their duty at that moment.

That isn't a technicality. It's the substance of a lot of this work.

If it happened with a partner or family member

Under the Penalties and Sentences Act, a court can mark any offence as a domestic violence offence where the behaviour was also domestic violence, or where it breached a domestic violence order.

It then shows up that way on your criminal history, and the court has to treat that aspect as making the offence worse unless there are exceptional circumstances. The Queensland Sentencing Advisory Council says this means a greater risk of harsher sentences, including gaol.

That can apply at any rung of the ladder.

Whether a conviction gets recorded

A separate question again, and often the one that matters most for work, travel and visas.

Under the Penalties and Sentences Act the court has a discretion. It has to weigh the nature of the offence, your character and age, and what recording a conviction would do to your ability to earn a living or your place in the community.

For some sentences, including imprisonment, a conviction has to be recorded.

An illustration, and it's only that

Take a made up incident where one person pushes another in the chest outside a venue. Nobody falls, nobody's hurt. That might be common assault.

Now change one detail at a time. The person stumbles and grazes an elbow, so bodily harm becomes arguable. Two mates are there and join in, so the "in company" version is in play. The person pushed turns out to be a security guard restraining someone, or is 62 years old, so serious assault comes into the picture.

The force never changed. The charge, the court and the trouble all did. None of that predicts what would happen in any real case. It just shows where the pressure points are.

If you've been charged in Cairns

The first question worth answering isn't what the maximum is. It's whether the charge you've been given is the one the evidence actually supports.

We act in assault matters at Cairns Magistrates Court and in the higher courts in Cairns, and we can go through what you're facing and which parts of it are open to question.

If you have been charged with an assault offence in Cairns and you are not certain which one, speak with us before your first mention.