A conviction for assault occasioning bodily harm cannot be sustained where the evidence establishes only that the accused punched the victim but does not establish that the accused's punches, as opposed to the acts of an unidentified third party, caused the bodily harm; the appropriate verdict in such circumstances is common assault. Under s 9(4) of the Penalties and Sentences Act 1992 (Qld) as it stood prior to amendment, a custodial sentence should not be imposed where the prosecution concedes that a non-custodial sentence could have been imposed.
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