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;
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That the defendant wounded the complainant
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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:
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the maximum penalty prescribed for that offence
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the nature and seriousness of the harm done
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the previous convictions of the offender
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the offender's age, character and intellectual capacity
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the prevalence of the offence
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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
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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
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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
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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.
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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
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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.
How do I get more information or engage you to act for me?
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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.
