Clarity Law

Threatening violence in Queensland is a criminal offence where a person through their acts and/or words threatens another person with the intention to intimidate or annoy that person. The charge is commonly confused with Common Assault and Threats. This article seeks to outline and broadly examine Threatening Violence for those seeking additional information on this charge.

What does the law say?

Threatening violence involves the intentional use of, actions or words against another in order to intimidate or annoy that person, including threats to enter property.

Section 75 of the Criminal Code states:             

(1) Any person who—

(a) with intent to intimidate or annoy any person, by words or conduct threatens to enter or damage a dwelling or other premises; or

(b) with intent to alarm any person, discharges loaded firearms or does any other act that is likely to cause any person in the vicinity to fear bodily harm to any person or damage to property;

commits a crime.

Penalty—

Maximum penalty—2 years imprisonment.

(2) If the offence is committed in the night the offender is guilty of a crime, and is liable to imprisonment for 5 years.

The Prosecution must prove each of the relevant provisions beyond a reasonable doubt to succeed in a prosecution for the charge.

s75(1)(a):

1. The defendant, by acts or words threatened to enter or damage a dwelling (home) or premises (including the land boundary); and

2. The defendant did so with the intent to annoy or intimidate another person.

s75(1)(b):

1. The defendant discharged a loaded firearm (or did any other act likely to cause any person in the area to fear bodily harm to a person or damage to property); and

2. The defendant did so with intent to alarm any person.

What are the elements of the offence?

1. A person through their words or actions threaten to enter or damage a dwelling or other premises; and

2. The person intended to intimidate or annoy another person.

or

1. A person discharges a loaded firearm or did an action which likely would cause fear of harm or damage; and

2. The person intended to alarm any person.

What do these elements actually mean?

Threatened - The court has determined that threatened takes its ordinary English word. A threat must be of such a nature and intent that an ordinary person might be influenced or frightened.

Intention – The court and parliament have determined again that Intent and Intention take their ordinary meaning. Intention can be inferred or drawn out from circumstances prior to and resulting from the conduct of the defendant before, during and after their conduct and acts.

The charge ultimately requires that a person threatens to enter a property (including but not limited to their home, their yard, their place of business ect) and the purpose of that threat to enter is to either intimidate or annoy that person.

Discharged a loaded firearm – This element is fairly self explanatory, did the person fire a firearm. Where there arises some ambiguity is acts likely to cause the fear of bodily harm to a person or damage to property. Such an extended definition could look like the producing and brandishing of a firearm, cocking the weapon and pointing it at a person.

What does this actually look like?

Some examples of what a Threatening Violence under s75(1)(a) looks like:

Mr Hatfield has a longstanding feud with his neighbour Mr McCoy. Mr Hatfield has taken exception to how Mr McCoy has let his hedges grow out and so Mr Hatfield standing at his front gate shouts at Mr McCoy that he is going to come onto his land and destroy his hedges. Mr Hatfield clearly has the intention to enter Mr McCoy’s property and damage his hedges.

Mr Jones is driving home from work when Mrs Smith cuts him off in traffic. Mr Jones follows Mrs Smith home and once she parks her car at home, he gets out of his car. Mr Jones is shouting and swearing at Mrs Smith and tells her that he is going to get his tire spanner from the boot of his car and break her windows for cutting him off. Mr Jones walks back to his car and opens his boot. Mrs Smith yells that she is calling the police and Mr Jones gets in his car and drives off. Mr Jones has by both his verbal threats to damage Mrs Smith’s car and the action of going to get the tire spanner form his vehicle cause Mrs Smith to be intimidated. Mr Jones’ intention can be clearly demonstrated through is words and conduct.

An example of what a Threatening Violence under s75(1)(b) looks like:

Mr Evans is trying to sell a stolen motorcycle to Mr Brown to make some quick money. Mr Evans gets frustrated with Mr Brown asking questions about its registration and service history and an argument breaks out between them about the bike being stolen and Mr Brown threatens to call the police. Mr Evans produces a firearm from his shorts and points it at Mr Brown, saying I am going to shoot you in the face if you do not get out of here right now. Mr Evans through his conduct has done an action which has caused fear of bodily harm to Mr Brown and it was Mr Evans intention to cause this fear in Mr Brown.

What are the defences to this charge?

The most common defences to this offence are:

1. Mistake of Identity – meaning that the defendant is not the person who committed the offence;

2. The words or actions did not constitute a valid threat;

3. The defendant did not have the intention to threaten, annoy or intimidate the person;

4. The defendant was not armed with a firearm (including replica);

5. Self-defence; or

6.  Duress

What court will hear my matter?

All matters will commence in the Magistrates Court closes to where the offence occurred. If the charge occurred during the day, then the matter must be heard in Magistrates Court. If the offence occurred at night and police charge with this circumstance of aggravation, then the matter will be committed to the District Court to be dealt with.

The police want to talk to me about a matter where it is alleged I have threatened violence.

Never ever give an interview to police without first getting legal advice. Even if you are innocent, even if you have a defence you could say the wrong thing and virtually guarantee you will be found guilty of the charge.

The police are not on your side, get immediate legal advice before talking to police and if you can’t get that legal advice don’t talk to the police.

Learn more about your right to silence.

Can the charge be withdrawn?

Depending on the circumstances it may be possible to negotiate the charge with the prosecutor. This is called case conferencing. For example it might be possible to try and convince the prosecutor that the element of the charge aren’t made out or the defendant has a defence and therefore the charge should be withdrawn.

Conclusion

This article is by no means a completely comprehensive outline of the charge of threatening violence. This article is designed to give an overview of the charge, what the prosecution must prove and what the charge may look like in practice. If the police want to speak with you about a matter or you have been charged with threatening violence, please feel free to contact our office for a free initial consultation.

How do I get more information or engage you to act for me? 

If you want to engage us or just need further free information or advice then you can either;

1.       Use our contact form and we will contact you by email or phone at a time that suits you

2.       Call us on 1300 952 255 seven days a week, 7am to 7pm

3.       Click here to select a time for us to have a free 15 minute telephone conference with you

4.       Email the firms founder on This email address is being protected from spambots. You need JavaScript enabled to view it.

5.       Send us a message on Facebook Messenger

6.       Click the help button at the bottom right and leave us a message

We are a no pressure law firm, we are happy to provide free initial information to assist you. If you want to engage us then great, we will give you a fixed price for our services so you will know with certainty what we will cost. All the money goes into a trust account monitored by the Queensland Law Society and cannot be taken out without your permission or until we are legally allowed to.

Arson is a serious criminal offence in Queensland, carrying significant penalties. If someone is charged or accused of arson in Queensland it’s crucial to comprehend the law around arson charges, the elements of the offence, and the potential consequences for offenders. In this article, we delve into the specifics of arson law in Queensland, providing essential information for those facing this charge.

What constitutes arson?

Arson involves the wilful and unlawful act of setting fire to various types of property. These include:

• A building or structure

• A motor vehicle, train, aircraft, or vessel

• Stacks of cultivated vegetable produce or mineral/vegetable fuel

Examples of arson scenarios:

• Setting fire to a house

• Setting fire to a car

• Setting fire to a door to a unit

• Setting fire to a chair in a house

• Setting fire to a business to collect on the insurance

• Setting fire to a boat

What does the law say?

Section 461 of the Criminal Code sets out the charge of arson as:

(1) Any person who wilfully and unlawfully sets fire to any of the things following, that is to say—

(a) a building or structure;

(b) a motor vehicle, train, aircraft or vessel;

(c) any stack of cultivated vegetable produce, or of mineral or vegetable fuel;

(d) a mine, or the workings, fittings, or appliances of a mine;

is guilty of a crime, and is liable to imprisonment for life.

(2) It is immaterial whether or not a thing mentioned in subsection (1) (a) or (b) is complete.

Elements of the offence

To secure a conviction for arson, the prosecution must prove:

1. The accused set fire to the property; and

2. The act was wilful; and

3. The defendant did so unlawfully.

Looks look at those elements in more detail.

The accused set fire to the property

There must be some actual damage caused by the fire. It is not enough that the accused was going to set fire to the property, a fire must have started.

It is however not required that the whole property is destroyed, merely that some component of the property is damaged by fire. It is also not a requirement that the property was complete, it is still an offence if say the property was a house and it was only half completed.

The act was wilful

The act of setting fire to the property must be intentional or acting with indifference to the likelihood of a foreseen result occurring. In R v Lockwood; ex parte Attorney-General the court specifically found that that the word “wilfully” applies to an accused person who deliberately did an act (that is, that it was a willed act) aware at the time he did it, that the result, i.e. a fire was, the likely consequence of his act and that he recklessly did the act regardless of the risk.

If at the time of the arson the accused was intoxicated this may, depending on the level of the intoxication, mean the accused could not have formed the necessary intent to damage the property.

The defendant did so unlawfully

It is immaterial whether the person had lawful possession of the property at the time of the arson or indeed owned or part owned the property.

If an accused has a valid defence then the offence cannot be unlawfully.

Defences to arson

Defences against arson charges may include:

• Lack of intent

• Lawful reasons for setting fire

• No actual property damage

• Accident

• Intoxication

• Mistake

• Identification

• Necessity

Which court hears the matter?

The matter will start in the Magistrates Court closet to where the alleged arson occurred. The charge is however too serious for the Magistrates Court to determine and will therefore ultimately be finalised in the District Court.

Penalties and sentencing for arson

Arson carries a maximum penalty of imprisonment for life. The most likely penalty will be a term of imprisonment between 19 and 48 months.

However the penalty depends on a number of factors including;

• The sentencing principles in the Penalties and Sentences Act;

• Relevant case law (previously decided cases);

• the maximum penalty of the offence;

• the penalty submissions made by the prosecution;

• the penalties submissions made by the defence;

• the personal circumstances of the defendant;

• the circumstances of the offence;

• any victim impact statement;

• the impact the offence had on an individual or the public generally;

• how much planning went in the arson offence

• the value of the property destroyed by the fire

• If any person was injured by the fire

• any time in custody the defendant has already served before the sentence and;

• the criminal history of the defendant.

Don’t try and guess what a penalty may be or rely on google searches, contact an expert criminal lawyer who can properly advise you on a potential sentence and if any defences exist.

See out article on How Does the Court Set a Prison Sentence?

See also the Queensland Sentencing Advisory Council for details of the sentences for arson that have been imposed in the past.

Can the charge be withdrawn?

Depending on the circumstances it may be possible to negotiate the charge with the prosecutor. This is called case conferencing. For example it might be possible to try and convince the prosecutor that the element of the charge aren’t made out or the defendant has a defence and therefore the charge should be withdrawn.

We once acted for a client charged with arson. He was found near a burning car with clothes the police described as smelling strongly of smoke. We were able to have the charge withdrawn as we argued they did not have enough evidence to convince a jury that it was our client who committed the arson.

Will I get a criminal conviction if I plead guilty to the charge?

The answer in almost all cases will be yes.

Only an experienced criminal lawyer can give you advice on the best way to try and avoid a conviction being recorded if you plead guilty to this charge. Note however if imprisonment is part of the penalty, as it almost always is for arson charges, then a conviction must be recorded.

The police want to talk to me about an arson charge

Never ever give an interview to police without first getting legal advice. Even if you are innocent, even if you have a defence you could say the wrong thing and virtually guarantee you will be found guilty of the charge.

The police are not on your side, get immediate legal advice before talking to police and if you can’t get that legal advice don’t talk to the police.

Learn more about your right to silence.

FAQ

Q: Can an accidental fire be considered arson?

A: No, arson requires wilful and unlawful intent. Accidental fires do not fall under this category.

Q: What if the accused was mentally impaired?

A: If the accused lacked the capacity to understand their actions due to mental impairment, it may be a valid defence.

Q: Is arson treated differently for juveniles?

A: Yes, age-related factors play a role. Juveniles (under 18) will have different legal considerations and a different sentences law.

How do I get more information or engage you to act for me? 

If you want to engage us or just need further free information or advice then you can either;

1. Use our contact form and we will contact you by email or phone at a time that suits you

2. Call us on 1300 952 255 seven days a week, 7am to 7pm

3. Click here to select a time for us to have a free 15 minute telephone conference with you

4. Email the firms founder on This email address is being protected from spambots. You need JavaScript enabled to view it.

5. Send us a message on Facebook Messenger

6. Click the help button at the bottom right and leave us a message

We are a no pressure law firm, we are happy to provide free initial information to assist you. If you want to engage us then great, we will give you a fixed price for our services so you will know with certainty what we will cost. All the money goes into a trust account monitored by the Queensland Law Society and cannot be taken out without your permission or until we are legally allowed to.

If you don’t engage us that fine too, at least you will have more information on the charge and its consequences.

A person coming before the court for the first time is rightfully nervous, they are thinking about what the penalty will be, if there is any disqualification, is a conviction going to be recorded! There is no shortage of things to consider. People incidentally will turn their mind to, what is going to happen to my reputation, will my matter be reported on. Queensland courts, with few exceptions, operate under the principle of the General Rule of Openness. I have written a companion article for this one about whether or not a case can be published in the media, here. 

Many clients ask whether they can request that the court be closed during their sentence?

Why are courts “Open”?

In Queensland there is a principle called the General Rule of Openness, which has been described as being a fundamental principle of our judicial system. The general rule is that all criminal court proceedings are open to the public and can be freely reported on. There are some exceptions to this rule, mainly surrounding Domestic Violence matters and matters relating to Children, such as Childrens Courts or where Children or victims of sexual assault are giving evidence.

In addition an offender who has cooperated with authorities (ie an informer) might have some evidence or part of the sentence closed.

Can I ask the Court to close for my sentence?

No.

Once an adult matter is proceeding to sentence, that meaning any special witnesses have given their evidence, the sentence will occur in open court, to allow for the principles of open and transparent justice to prevail.

As we have previously written, the likelihood of a matter being reported on by the media will depend on the seriousness of the offence, the location of the court and whether there are any special features of the case (including but not limited to a celebrity or matter of public interest).

You cannot simply ask that the court be closed as the sentence taking place in an open court will cause embarrassment, affect your employment or social wellbeing.

What can I do?

There is, in essence not a lot that can be done to close the court.

Conclusion

While it is a naturally distressing time in your life, the thought of an additional punishment in the court of public opinion can add unneeded stress. It is for better or worse an underpinning principle that the administration of justice occurs openly and publicly. The only thing that a defendant can do, is focus on the conduct of their case.

It is generally well understood that Police stations are staffed and operating 24 hours per day, seven days per week inclusive of weekends and public holidays. This can result in an officer who has been assigned the investigation or follow up of a criminal or traffic matter to be working irregular or out of business hours shifts.

It necessarily follows that a police officer may contact a witness, suspect or person of interest to schedule an Electronic Record of Interview or request them attend the police station during one of their shifts.

This could look like a person receiving a phone call, text message or even a visit to their home address when they are not expecting it. While it may be useful for people to attend the police station outside of working hours, this may create an issue where a person wishes to exercise their right to have a solicitor present during any interview.

While it may not be entirely necessary for you to have a solicitor present during any interview that you elect to give (see our article on whether or not you should give an Electronic Record of Interview here), if you attend a Police station on a Public holiday or outside of business hours, there may be an impact on your chosen legal representatives availability or additional costs associated with that attendance.

What should I do if the Police want to talk to me during a public holiday or on a weekend?

If the police want to talk to you on a Saturday or Sunday, or worst-case Christmas Day, you have all the same rights as you would if it was any given Monday. You have the right to have a support person, family or Lawyer present during any questions. The issue arises of availability of your support person or legal representative.

If you have advanced warning of an interview, and you wish for your legal representative to be present it is usually best to attempt to reschedule the interview for a time that is within normal working hours. However, this may not always be achievable.

What happens if I am arrested on a Public Holiday or Weekend?

If you are arrested on a Public Holiday or Weekend, and the police decide not to give you watchhouse bail, then you will be held in the watchhouse until such time that the court can get you in front of a magistrate for a bail application. Some courts will run on Saturday for in custody matters, however that is not the case for every court.

What happens, you might ask if you are arrested during the Christmas Court Closure period? The court will be available for certain urgent matters, including bail applications as needed. Each Court will maintain an on-call Magistrate for the relevant times. The exception will of course be Christmas Day and Sundays.

Here is some more information about bail that may be useful

• Bail law in Queensland

• Show Cause Bail in Queensland: Presumption of Innocence and the Complexities of Domestic Violence Order Breaches

• Help! A Family Member Has Been Arrested: What Can I Do?

Conclusion

In conclusion, it is typically best to wait until working hours to attend on a police station for the purposes of an Electronic Record of Interview, or to receive documents. In the event that is not achievable, and you intend on having your lawyer available to you, give as much advance notice as possible and anticipate that there may be additional costs for that attendance.

Remember never give an interview to police unless you have first obtained legal advice.

In the complex realm of criminal law, the charge of unlawful wounding in Queensland carries serious implications. Understanding the nuances of this offence is crucial for individuals facing such allegations. This article provides a comprehensive guide to Queensland's unlawful wounding charge, covering key elements, defences and the role of criminal defence lawyers.

What does the law say?

Section 323 of the Criminal Code sets out the law in regarding to unlawful wounding.

Its states that;

             A person who unlawfully wounds anyone else commits a misdemeanour

What does the Prosecution need to prove?

In order to make out a charge of unlawful wounding the prosecutor must prove;

1. That the defendant wounded the complainant

2. That the wounding was unlawful. A wounding is unlawful unless it is authorised or justified or excused by law

In order to constitute a wound the “true skin” must be broken and penetrated, not merely the cuticle or outer skin.

Does a weapon need to be used?

No, also long as the skin (not the outer skin) is broken and penetrated then it does not matter if a weapon was used or not.

We often see this offences occur where someone is ”glassed” i.e. hit with a bottle or glass and that causes the wound. Glassing is often the action that lead most first time offenders to be charged with unlawful wounding.

What is the penalty for wounding?

The maximum penalty is 7 years imprisonment. In addition if the defendant was in a public place and intoxicated then community service must also be imposed.

How does the court decide a penalty?

The court has a wide discretion to decide on a penalty and how much importance to give to mitigating factor in each case. The court will likely consider factors, such as:

• the maximum penalty prescribed for that offence

• the nature and seriousness of the harm done

• the previous convictions of the offender

• the offender's age, character and intellectual capacity

• the prevalence of the offence

• any other relevant circumstances

Once the court looks at the main factors in determining a sentence they will look at the mitigating factors of the defendant. Mitigating factors are any information or evidence presented to the court regarding the defendant or the circumstances of the crime that might result in reduced charges or a lesser sentence

• Early guilty plea: This is one of the most significant mitigating factors, as it can result in a discount of up to 33% on the sentence . It also demonstrates remorse and cooperation with the justice system as well as an acceptance of responsibility for the offence

• No criminal history: This can show that the offender is of good character and that their offending was out of character or an isolated incident. It can also indicate a low risk of reoffending

• Significant physical or mental health issues or low intellectual capacity: These factors can affect the offender's culpability, meaning their level of blame or responsibility for their actions.

• Rehabilitation efforts after the offence: These can include things like attending counselling, completing courses, seeking treatment, paying compensation or apologising to the victim. They can show that the offender is genuinely remorseful and willing to address their underlying issues or problems that led to their offending

• Providing the court with character references

Important information on our blog that explains more on how a court decides a penalty.

How Does the Court Set a Prison Sentence?

Mitigation: How the court sets a sentence in Queensland

Will I go to jail for a unlawful wounding charge?

That’s impossible to answer without all the information circumstances known.

What we can say is that the Court of Appeal (our highest court) has made it clear that wounding charges, even from a first time offenders, would ordinarily require the court to sentence them to actual time in prison.

It all depends on the facts of a particular charge. The court might in the right circumstances wholly suspended a sentence or impose probation or immediate parole release all of which means no time is served in prison for the wounding charge.

Which court hears the wounding charge?

While the charge will start in the Magistrates court it must be ultimately determined in the District Court.

Are there defences to unlawful wounding?

The most likely defence someone would use to a wounding charge is self defence. In its most straight-forward formulation, self defence means protecting ourselves (or someone else) from violence, or anticipated violence. Self-defence is only available as a legal defence if the force used is “reasonable to repel the attack”

Once a defence is raised then the prosecutor has the burden to disprove the defence. Learn more about Self-Defence and the use of force: Your rights in Queensland

As unlawful wounding is a not an assault charge therefore the defence of provocation is not available.

Another defence might be what is known as an identification defence. While not a true defence in essence it means the prosecutor can’t provide beyond a reasonable doubt that it was definitely the defendant that caused the wound. For example there might have been a brawl involving lots of people and anyone could have caused the wound. Another example might be a glassing in a dark nightclub where it if difficult to positively identify the offender.

Can the charge be withdrawn?

Depending on the circumstances it may be possible to negotiate the charge with the prosecutor. This is called case conferencing. For example it might be possible to try and convince the prosecutor that the wounding was excused by law or the medical evidence does not meet the standard for a wounding charge and therefore the charge should be withdrawn.

Will I get a criminal conviction if I plead guilty to the charge?

The answer is possibly. It depends on a number of factors. Only an experienced criminal lawyer can give you advice on the best way to try and avoid a conviction being recorded if you plead guilty to this charge. Note however if imprisonment is part of the penalty then a conviction must be recorded.

The police want to talk to me about a wounding charge

Never ever give an interview to police without first getting legal advice. Even if you are innocent, even if you have a defence you could say the wrong thing and virtually guarantee you will be found guilty of the charge.

The police are not on your side, get immediate legal advice.

Learn more about your right to silence.

I’m not guilty of the wounding

Still don’t talk to the police. A lawyer would require the prosecutor to give them all their evidence and statements. This is known as the full brief of evidence. Once the brief was received then negotiations with the prosecutor to drop the charge can occur.

Learn more about what to do if accused of a crime you didn’t commit.

• I didn’t do it! What to do if Accused of a Crime you didn’t Commit

• Visit our main criminal law website

How do I get more information or engage you to act for me? 

If you want to engage us or just need further free information or advice then you can either;

1. Use our contact form and we will contact you by email or phone at a time that suits you

2. Call us on 1300 952 255 seven days a week, 7am to 7pm

3. Click here to select a time for us to have a free 15 minute telephone conference with you

4. Email the firms founder on This email address is being protected from spambots. You need JavaScript enabled to view it.

5. Send us a message on Facebook Messenger

6. Click the help button at the bottom right and leave us a message

We are a no pressure law firm, we are happy to provide free initial information to assist you. If you want to engage us then great, we will give you a fixed price for our services so you will know with certainty what we will cost. All the money goes into a trust account monitored by the Queensland Law Society and cannot be taken out without your permission or until we are legally allowed to.

If you don’t engage us that fine too, at least you will have more information on the charge and its consequences.

Queensland law provides that it is illegal to strike, harm or otherwise cause pain to another person. A person doing this would be guilty of an assault.

This would seem to make it illegal for a parent or guardian in Queensland to smack a child.

However the situation is not that simple as the law provides a defence or exemption for certain people but only if the physical discipline used was reasonable in all the circumstances.

The Law

It is important to remember that there is no separate charge of unreasonably disciplining your child, if you are charged it will be for an assault and the type of assault charge will be determined by the injuries suffered by the child.

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. As you can see the definition of assault is wide enough that you can be charged with assault merely by threatening an assault. The law is contained in the Criminal Code (Qld).

Are there different types of assaults?

There are a number of different types of assault charges in Queensland but the most common are;

Common Assault

Common assault is the most frequent assault charge that the Queensland Court hear. Generally a person will be charged with common assault where the person assaulted has only minor injuries or no injuries at all. The maximum penalty is a term of imprisonment for 3 years and is dealt with in the Magistrates Court.

We have a dedicated common assault page

Assault occasioning bodily harm

An assault occasioning bodily harm occurs where the person assaulted has suffered injuries that fall within the definition of bodily harm. In Queensland “Bodily harm” means any injury which interferes with health or comfort. The maximum sentence for assault occasioning bodily harm is 7 years.

The matter is dealt with in either the Magistrates Court or the District Court. We have a dedicated assault occasioning bodily harm page.

Under the assault laws it would be illegal to smack your child no matter the circumstances. However Section 280 of the Criminal Code provides the following exemption to allow parents to physically discipline their children. The law provides that;

It is lawful for a parent or a person in the place of a parent, or for a schoolteacher or master, to use, by way of correction, discipline, management or control, towards a child or pupil, under the person’s care such force as is reasonable under the circumstances.

What are the key points of the defence or exemption on smacking children?

The key points for the exemption are as follows;

• It applies to parents or a person in the place of a parent (as well as schoolteacher)

• The force must be used for the correction, discipline, management or control, of a child

• The child must be under the persons care at the time

• The force must be reasonable in the circumstances

Let’s look in more detail at those keys elements.

A child – Means someone under 18 years of age.

Correction, discipline, management or control – These are the only allowed reasons to use physical force on a child. Smacking a child out of frustration or anger unless it is for correction, discipline, management or control is not allowed. Force can only be used when disciplining the child.

Reasonable force – The amount of force used must be reasonable in all the circumstances. There is no definition of reasonable in the legislation. It is also important to note that it is not up to the parent to show the force was reasonable it is up to the prosecutor to show the force was unreasonable in all the circumstances. How is reasonable force judged? That would be up to the jury or magistrate to decide based on the common definition of “reasonable” but some factors might include;

• What level of force was used?

• What non physical discipline was used first before physical force was needed?

• Did the force result in injuries?

• What was child was doing that needed physical force to be used to discipline them?

• How old is the child?

What defences might I have if charged with assault because I smacked my child?

The defences would be the same as any assault charge plus that the force used was reasonable in all the circumstances.

What if my “child” is over 18 years old?

If you use physical force on your “child” when they are over 18 then the exemption does not apply and you could be charged with assault.

Which Court would hear the charge?

It all depends on the type of assault charge you are charged with. If it is common assault then the Magistrates court will hear the charge. If it is ror assault occasioning bodily harm then you can choose the Magistrates or District Court to hear the charge. If it is a charge of grievous bodily harm then the District Court will hear the charge.

Can the charge be withdrawn?

Depending on the circumstances it may be possible to negotiate the charge with the prosecutor. This is called case conferencing. For example it might be possible to try and convince the prosecutor that the force was reasonable and therefore the charge should be withdrawn.

Will I get a criminal conviction if I plead guilty to the charge?

The answer is possibly. It depends on a number of factors. Only an experienced criminal lawyer can give you advice on the best way to try and avoid a conviction being recorded if you plead guilty to this charge.

Never give an interview to police without first getting legal advice.

Learn more about your right to silence.

What should I do if the police want to talk to me or charge me with smacking my child?

You need immediate legal advice from an experienced criminal defence lawyer. Saying the wrong thing to the police can assure you will be convicted of the offence or receive a more serious penalty. There are things you can do to protect your interests and rights or minimise the penalty if you plead guilty, a lawyer will be able explain what exactly you need to do or shouldn’t do.

How do I get more information or engage you to act for me? 

If you want to engage us or just need further free information or advice then you can either;

1. Use our contact form and we will contact you by email or phone at a time that suits you

2. Call us on 1300 952 255 seven days a week, 7am to 7pm

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The law in Queensland provides that it is an offence to leave a child under the age of 12 unattended for an “unreasonable time” without making provision for their supervision and care.

Legislation

The relevant legislation is the Criminal Code 1899 - Section 364A.

The law states that;

A person who, having the lawful care or charge of a child under 12 years, leaves the child for an unreasonable time without making reasonable provision for the supervision and care of the child during that time commits a misdemeanour.

Penalty—

Maximum penalty—3 years imprisonment.

Whether the time is unreasonable depends on all the relevant circumstances.

What does the prosecutor need to prove?

The prosecutor would need to prove all of the following;

1. The person had lawful care or charge of a child

2. The child was under 12

3. The person left the child

4. The time the person left the child alone was unreasonable

5. The person did not make reasonable provision for the supervision or care of the child

Determination of unreasonable time

Whether the time is unreasonable depends on all the relevant circumstances. The court would likely look at the following factors

• The age of the child. Obviously the older the child the more reasonable it is to leave the child alone

• The maturity of the child. The more mature the child the more likely then could care for themselves

• The length of time the child was left alone

• Whether the child had access to neighbours or a phone to seek help if something occurred

• The reason the child was left alone

Penalty for the charge of leaving a child unattended

The maximum penalty for committing an offence against this section is three years imprisonment. The court can impose a lesser sentence and has the option whether to record a conviction or not.

Examples of the charge of leaving a child unattended

AJM v Commissioner of Police

The defendant drove his vehicle into an underground carpark attached to a Shopping Centre at New Farm. The recorded temperature on this day was 38 degrees Celsius. The defendant parked his vehicle in the undercover carpark. At this time, his 4 year old son was restrained in a car seat in the front, passenger seat of the vehicle. He had been asleep, but stirred. The defendant asked his young son if he wanted to come into the shops and the child indicated that he did not.

The defendant turned the vehicle off. He left the front, passenger seat window down and he left the vehicle unlocked. He took the car keys with him. A short time later, a witness observed the defendant’s son in the vehicle. The witness remained with the young child while his wife went up the stairs to the shops to look for the defendant. She could not find him. The witness then opened the door to the vehicle so that he could fan the defendant’s son. He attempted to wake the young child but he was unable to do so.

Approximately 15 minutes after first observing the defendant’s son in the vehicle, the witness contacted the police and they arrived about five minutes later. The police also attempted to wake the young child but were unable to do so. It was thought by the police that he was unconscious. The child was removed from the vehicle to an air-conditioned police vehicle and subsequently transported by ambulance to hospital as a precautionary measure. He was released a short time later.

The defendant pleaded guilty.

Kim v Commissioner of Police

The victim child was five years old. Approximately 11am police attended a house at Windsor, in relation to reports a young child could be heard calling out at the address and sounding to be in distress.

Upon arrival, police observed the victim child at the address. However, the child could not open the door for police. Police forced entry to the address, located the victim child within the residence alone. The child was located wearing winter clothing. The unit was hot, and observed to be locked up with no fans or windows or doors open. There was food and drink left out for the child. The victim child was changed into cooler clothing by police, and QAS attended. They said the child was in good health, however, was very thirsty.

At 12.25pm that day, the defendant returned to the address. The defendant stated that she was the child’s auntie. The defendant admitted that she had been at work since 9am that morning, that she had returned home on her break at work to check on the victim child, and intended to return to work after she had checked on the child.

There was no supervision or provision for care for the victim child arranged.

The defendant pleaded guilty.

Defences

The following might be a defence to the charge;

1. The person did not have lawful care or charge of the child

2. The child was over 12

3. The person did not leave the child unattended

4. The time the person left the child alone was reasonable in all the circumstances

5. The person made reasonable provision for the supervision or care of the child

What court hears the charge?

The charge is a misdemeanour and so the matter will be heard in the Magistrates Court.

Can the charge be withdrawn?

Depending on the circumstances it may be possible to negotiate the charge with the prosecutor. This is called case conferencing. For example it might be possible to try and convince the prosecutor that the time the child was left was reasonable in all the circumstances and so the charge should be withdrawn.

Will I get a criminal conviction if I plead guilty to the charge?

The answer is possibly. It depends on a number of factors. Only an experienced criminal lawyer can give you advice on the best way to try and avoid a conviction being recorded if you plead guilty to a charge of leaving a child unattended.

What should I do if the police want to talk to me or charge me with leaving a child unattended?

You need immediate legal advice from an experienced criminal defence lawyer. Saying the wrong thing to the police can assure you will be convicted of the offence or receive a more serious penalty. There are things you can do to protect your interests and rights or minimise the penalty if you plead guilty, a lawyer will be able explain what exactly you need to do or shouldn’t do.

How do I get more information or engage you to act for me? 

If you want to engage us or just need further free information or advice then you can either;

1. Use our contact form and we will contact you by email or phone at a time that suits you

2. Call us on 1300 952 255 seven days a week, 7am to 7pm

3. Click here to select a time for us to have a free 15 minute telephone conference with you

4. Email the firms founder on This email address is being protected from spambots. You need JavaScript enabled to view it.

5. Send us a message on Facebook Messenger

6. Click the help button at the bottom right and leave us a message

We are a no pressure law firm, we are happy to provide free initial information to assist you. If you want to engage us then great, we will give you a fixed price for our services so you will know with certainty what we will cost. All the money goes into a trust account monitored by the Queensland Law Society and cannot be taken out without your permission or until we are legally allowed to.

If you don’t engage us that fine too, at least you will have more information on the charge and its consequences.