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Circumstances of Aggravation (Qld) 

Written by Lisa Taylor

Lisa holds a Bachelor of Laws and a Master of Laws. She also holds a Graduate Diploma of Legal Practice and is admitted to practice in the Supreme Court of Queensland and in the High Court of Australia. Lisa is a Senior Associate and the Manager of Go To Court’s Gympie office. Lisa has represented clients in the Family Court, Federal Circuit Court, and Queensland’s Supreme, District and Magistrates Courts.

Circumstances of aggravation are commonly alleged when an offender is charged with a criminal offence. A circumstance of aggravation is a factor surrounding an offence, the victim or the defendant which makes the offence more serious. Higher maximum penalties apply to aggravated offences. 

Legislation

Section 1 of the Queensland Criminal Code defines a circumstance of aggravation as any circumstance where an offender is liable to a greater punishment than if the offence were committed without the existence of that circumstance. A common aggravating factor is a prior record for similar offences. Other aggravating factors may relate to the circumstances of the offence itself, such as the use of a weapon or the extent of the injuries suffered by a victim. 

Second or subsequent offence

Some offences, particularly driving offences, specify a maximum penalty for a first offence and a higher maximum penalty for a second and third offence. An example of this is drink driving offences, where larger fines and longer disqualification periods apply where the offender has a prior history of drink driving. 

Vulnerability of the victim

When a person is charged with a violent or sexual offence, police may allege a circumstance of aggravation relating to the age or vulnerability of the victim. 

The vulnerability of a victim may be assessed according to an objective standard (such as age or mental impairment) or in relation to the defendant. For example, under Section 215 the Criminal Code 1899 the offence of sexual penetration of a child under 16 is aggravated if the offender was a person who had care of the child, such as a teacher, or if the child was aged under 12. It is also a circumstance of aggravation if the child has a mental impairment. 

Circumstances of the offence

Some offences can be aggravated because of the circumstances under which they took place. For example, the offence of burglary is aggravated if it occurs at night, if violence is threatened or if the offender is in company with one or more other persons. Any of these circumstances of aggravation increase the maximum penalty that applies from 14 years imprisonment to imprisonment for life (Criminal Code, Section 419).

How do I know if my charge includes circumstances of aggravation? 

A ‘circumstance of aggravation’ must be specified on the indictment (or bench charge sheet) when an offender is first charged. It is then up to the Prosecution to prove beyond reasonable doubt that offence was committed and that the aggravating circumstance was present. 

To determine whether or not a charge includes a circumstance of aggravation you need to look at the section of legislation that the charge has been laid under. If the offence is ‘in simpliciter’ (meaning a simple offence, without any circumstance of aggravation), the charge sheet will have a section number followed by a single subsection, such as 339 (1) of the Criminal Code 1899 (Qld), which is the offence of assault occasioning bodily harm. If the same offence was alleged to have been committed whilst armed or in company (which are circumstances of aggravation) the section will read as section 339 (1) and (3).

If the offence is alleged to have occurred in circumstances of aggravation, it will carry a higher maximum penalty than the same offence in simpliciter. For example, the offence of assault occasioning bodily harm, in simpliciter, carries a maximum penalty of seven years imprisonment, whereas assault occasioning bodily harm whilst armed or in company carries a maximum penalty of ten years imprisonment.

Contesting circumstances of aggravation

When a person is charged with an aggravated offence, they may wish to plead not guilty to the offence. Alternately, they may wish to plead guilty to the offence but to contest the circumstance of aggravation. For example, a defendant may agree that they committed an assault but disagree that they used a weapon or that they were in company with another person. In this circumstance, the matter would proceed to a contested hearing and the prosecution would be required to prove beyond a reasonable doubt that the circumstance of aggravation existed. 

If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Go To Court Lawyers. 

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