In New South Wales, grievous bodily harm is defined under s 4(1) of the Crimes Act 1900 (NSW) to mean the destruction of the foetus of a pregnant woman, any permanent or serious disfiguring of the person, and any grievous bodily disease. At common law, the words ‘grievous bodily harm’ have been given their ordinary and natural meaning, with ‘grievous’ simply meaning ‘really serious’.
Various ways of causing grievous bodily harm are referred to in many of the offences outlined throughout the Crimes Act. The two prevalent offences created to address grievous bodily harm, however, are found in sections 33 and 35.
Section 33 creates the offence of wounding or grievous bodily harm with intent. This dictates that a person who wounds any person or causes grievous bodily harm to any person with intent to do so is guilty of an offence. ‘Wounding’, while not defined in the Crimes Act, is a lesser offence than grievous bodily harm, and requires breaking of both the inner and outer layers of the skin.
Reckless grievous bodily harm is an offence under section 35 of the Crimes Act, outlining that a person who causes grievous bodily harm to any person and is reckless as to causing that harm to that or any other person will be found guilty. Section 35(1) details an aggravated form of this offence as being committed in company.
The difference between these two offences is the mental state of the accused. Section 33 is the more serious offence as it requires the prosecution to prove that the accused intended to inflict grievous bodily harm, while section 35 is less serious and only requires proof that the accused caused the harm recklessly. To establish this recklessness, the Crown must prove that the accused at least realised the possibility of the infliction of grievous bodily harm from their actions before proceeding.
Assault and grievous bodily harm are both offences of violence against a person, that may be differentiated according to the level of harm inflicted upon the victim as well as the intention of the offender. Common assault can be established merely by proof of any physical contact (battery) or by an act which causes another person to apprehend immediate and unlawful violence and it does not require the infliction of bodily harm.
More serious assaults are then classified with respect to the type of harm that was caused, be it actual bodily harm or grievous bodily harm. While not defined under section 59, actual bodily harm is any injury that interferes with the health of the victim, with typical examples including scratches and bruising. Grievous bodily harm requires really serious bodily harm, with examples including serious or permanent disfigurement, broken bones, infection of an STD, and internal organ damage.
Under section 33, the maximum penalty for a person who causes grievous bodily harm to any person with intent to cause that harm is imprisonment for 25 years. This carries a standard non-parole period of 7 years. This period is a guide for the sentencing judge when determining how long an offender must remain in custody before being eligible for release on parole.
The maximum penalty for offences causing grievous bodily harm under section 35 ranges from 10 to 14 years depending upon the details of the offence. A person who causes grievous bodily harm to any person and is reckless as to causing actual bodily harm to that or any other person is guilty of an offence with a maximum penalty of imprisonment for 10 years, including a standard non-parole period of 4 years. If the same offence is committed in the presence of another person – “in company” – then under s 35(1) the maximum penalty is imprisonment for 14 years with a standard non-parole period of 5 years.
As it is a criminal offence to cause grievous bodily harm, if you are charged and convicted for any offence involving such an injury this will appear on your criminal record.
Section 10 of the Crimes (Sentencing Procedure) Act 1999 dictates the possibility that a court may find a person guilty of an offence without proceeding to conviction by one of the following orders: dismissing the relevant charges, discharging the person under a conditional release order, or discharging the person on the condition of participation in an intervention program. If the court makes such an order under section 10, no conviction will be recorded. The team at Hamilton Janke Lawyers are very experienced in achieving these orders for their clients. However, it is very rare in a case involving the infliction of grievous bodily harm, for conviction to be avoided.
If you are charged with causing grievous bodily harm, it is imperative to secure legal assistance as soon as possible. Hamilton Janke Lawyers represent clients across all NSW courts and you can have confidence in their dedication and experience in this area.
One defence against a charge of causing grievous bodily harm is an argument of self-defence. This requires you to satisfy the court that you believed your actions were necessary to defend yourself or another person. You must also show that your actions were a reasonable response in the circumstances as you perceived them, and were not unreasonable or excessive.
Other potential defences include duress and necessity. Duress denotes a situation where you have been threatened or intimidated to commit a crime against your will. The defence of necessity operates where circumstances are such that the accused is induced to break the law in order to avoid even more serious consequences.
Finally, it is possible to argue that the injuries that are the subject of the charge are not serious enough to constitute grievous bodily harm. Experts such as doctors and specialists can be called to give evidence before the court to help determine whether grievous bodily harm was inflicted.
Inflicting grievous bodily harm is a very serious criminal offence. The maximum penalty of 25 years imprisonment is the longest sentence available in NSW, short of life. For this reason, it is extremely important you secure legal representation before entering your plea.
If after considering all the facts you believe you are not guilty of a charge of causing grievous bodily harm or that the charge is inappropriate or excessive, you may plead not guilty. This means your matter will proceed to a hearing or trial and the prosecution must prove your guilt beyond reasonable doubt. If they are unable to, you will be acquitted (meaning, found not guilty).
If you choose to plead guilty at the earliest available opportunity to cause grievous bodily harm, you will be entitled to a 25% discount on whichever sentence the judge considers appropriate. If you plead guilty at a later opportunity, you may still be entitled to a lower percentage of discount.
The burden of proof in a case of grievous bodily harm falls upon the prosecution, who must prove each element of the relevant offence beyond all reasonable doubt. This means that, depending upon the specific charge, the prosecution must prove that the accused committed an act which resulted in injuring another person to the extent of grievous bodily harm. Further, they must prove the “mental state” of the offence: that is, that the act was done recklessly or intentionally.
If you, or someone you know, have been charged with an offence of causing grievous bodily harm, contact the team at Hamilton Janke Lawyers for experienced advice on every step of the process.
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