Criminal Law

Reckless Grievous Bodily Harm or Wounding

Reckless wounding (or malicious wounding) and recklessly causing grievous bodily harm (GBH) are serious offences. The difference between the two types of offences is the injury that is inflicted. There are also different maximum penalties that each type of offence attracts.  

The Law

Section 35 of the Crimes Act 1900, sets out the following offences:

1. Reckless wounding

2. Reckless wounding in company of another

3. Recklessly inflicting grievous bodily harm

4. Recklessly inflicting grievous bodily harm in the company of another

Penalties

The maximum penalty for reckless wounding is a term of imprisonment for 7 years. 

The maximum penalty for reckless wounding in company is imprisonment for 10 years.

The maximum penalty for recklessly causing grievous bodily harm is a term of imprisonment for 10 years. 

The maximum penalty for recklessly causing grievous bodily harm in company is imprisonment for 14 years.

Commentary

The distinction between the two types of offences is the type of injury occasioned or received.  "Wounding" is not defined in the legislation but instead finds its legal definition in the common law (ie, cases determined by Judges). A wound occurs when there is breaking of the skin; essentially, a cut. For that reason, different degrees of injury can fall into the category of a wound; some more serious than others and some, relatively minor. The Courts have also held that the injury does not need to be caused by a weapon or implement to amount to a wound when considering the offence of reckless wounding.

The term "grievous bodily harm" is defined at section 4(1) of the Crimes Act to include any permanent or serious disfiguring of the person, the destruction of a foetus, and any grievous bodily disease. The "definition" in the legislation is not all-inclusive and the Courts have held that the words “grievous bodily harm” should be given their ordinary and natural meaning. It has been held that "grievous" simply means "serious". Just like a reckless wounding offence, the way that grievous bodily harm is inflicted can vary and the Courts have held that overall, the seriousness of a wounding of reckless grievous bodily harm offence can be assessed by the viciousness of the attack and the severity of the injuries.

To be found guilty of any of these offences, the prosecution must prove that there was an intention to assault the victim, however, it does not need to prove that the accused intended on wounding the victim or causing grievous bodily harm, nor that the accused was aware that the type of harm would be caused. The prosecution previously had to prove that the defendant turned his or her mind to the possibility of the type of harm (eg, wounding or grievous bodily harm of some sort) occurring, but acted anyway. 

Since amendments were made to that aspect of the law, the prosecution now needs to only prove that the defendant turned his or her mind to the possibility of actual bodily harm being inflicted, and still proceeded to act. This has lowered the threshold of what needs to be proved by the prosecution, considerably. In most cases where wounding or grievous bodily harm is inflicted, if it is due to the force of the assault itself, then it will be more likely that a Court or a jury would find that the defendant did in fact consider the possibility of at least actual bodily harm being inflicted.

Of course, aside from the prosecution still being required to prove all the elements of the charge beyond a reasonable doubt, the defendant still has available the possible defence of "self-defence".

If you have been charged with reckless wounding or recklessly causing grievous bodily harm, our experts at Prime Lawyers - Criminal Law Division can help. Contact us to make an appointment with a criminal lawyer at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.    

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