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Recklessly Cause Grievous Bodily Harm or Wounding

Streeton Criminal Lawyers Sydney

THE OFFENCE

Recklessly causing grievous bodily harm (GBH) is an offence under section 35 of the Crimes Act 1900. It carries a maximum penalty of 10 years imprisonment. If the offence is committed in the company of another person(s), the maximum penalty is 14 years imprisonment.

Recklessly cause GBH is a “Table 1” offence which means it can be dealt with in Local Court unless the prosecution or defendant elects to have the matter dealt with in the District Court. If the matter is finalised in the Local Court the maximum penalty is 2 years imprisonment.

Typically, the offence involves the infliction of serious injuries on a victim. As a consequence, it is treated seriously by the courts and this is reflected in the maximum penalty.

What is “Recklessly”?

Recklessness still requires some foresight.  In other words, although proof of an intention to cause GBH is not required, it must still be established that the accused realised the possibility of the infliction of GBH and still continued with the act, for example a punch, and that act ultimately caused the GBH.

What is “Grievous Bodily Harm”?

To be grievous bodily harm, the injury must be a “really serious” injury. It is defined in the Crimes Act 1900 and includes:

  1. the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and
  2. any permanent or serious disfiguring of the person, and
  3. any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease)

It is often the subject of argument whether injuries suffered by a victim amount to grievous bodily harm or actual bodily harm. Click here for more information on Actual Bodily Harm: ACTUAL BODILY HARM.

What constitutes “wounding”?

A wound involves the breaking or cutting of the dermis, or the breaking or cutting of the interior layer of the skin. R v Smith (1837) 8 Carrington and Payne 173.

DEFENCES

As with any criminal offence, the prosecution must establish each element of the offence beyond reasonable doubt.

One of the most common defences to recklessly inflicting grievous bodily harm is SELF DEFENCE.

Other defences include lack of recklessness, or that the injuries alleged were either not caused by the actions of the accused, or that they do not constitute grievous bodily harm.

Often the facts which the prosecution allege are disputed. For example, the accused person denies that the incident actually occurred or occurred exactly how the prosecution allege. It is for the prosecution to prove beyond reasonable doubt that the incident occurred as they allege.

WILL I GO TO JAIL?

In the Local Court, upon conviction, a person is liable to imprisonment for up to 2 years. However, the maximum penalty is for the most serious offender and usually reserved for someone who also has a past criminal history. The Local Court will still have regard to the fact that the maximum penalty is 10 years imprisonment when considering how serious the offence is. For the full range of penalties that can be imposed for Affray, see our Sentencing Options page.

If dealt with in the District Court, the penalty is 10 years imprisonment, or 14 years if the offence was committed in the company of others.

The penalty imposed will depend on a number of factors including:

  • The extent of the injuries caused
  • The degree of violence or force used in causing those injuries
  • Whether there were any aggravating features, such as whether the offence was committed in the home of the victim or in the presence of a child or person under 18 years of age.

Your personal circumstances will also be relevant, as will your criminal history.

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