Reckless grievous bodily harm or wounding

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What is Reckless grievous bodily harm or wounding ?

Being reckless and causing Grievous Bodily Harm (“GBH”) or wounding to another person is where the acts of the accused have recklessly left the victim with a really seriously injury or wound.

Some examples of GBH or wounding include:

  • Striking at a person with a first or slapping a person cutting the skin;
  • Throwing an object at another person or knifing someone; and/or
  • Any battery where really serious injury occurs

Case law/Jurisdiction

An offence of Reckless grievous bodily harm or wounding is what is known as a “Table 1” offence under the relevant legislation, which means it is to be dealt with in the Local Court unless an election is it is to be dealt with on indictment by the Department of Public Prosecutions (DPP).

The nature and elements of the offence of affray were considered in Blackwell v R (2011) 208 A Crim R 392 which held: Where the charge refers to the harm inflicted as Grievous Bodily Harm, the Crown must prove that the accused at least foresaw the possibility of the infliction of Grievous Bodily Harm resulting from his or her intentional act.

What is Grievous Bodily Harm (GBH)?

GBH means that a person has suffered a really serious injury. GBH includes any injury which results in any permanent or serious disfiguration to that person. However, for an injury to be GBH the injury does not have to be permanent or that the consequences of the injury be long lasting or life threatening.

What is a wound?

Wounding is an injury involving the breaking or cutting of the interior layer (dermis) and outer layer (epidermis) of the skin. A wound can be caused by something as simple as a fist and a split lip is sufficient to be classed as a wound.

The Law

Section 35(2) of the Crimes Act 1900 (NSW) provides that:

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.

Maximum penalty: Imprisonment 10 years

Section 35(1) of the Crimes Act 1900 (NSW) set sou the offence of Reckless Grievous Bodily Harm – “in company” and provides:

A person who, in the company of another person or persons:

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.

Maximum penalty: Imprisonment 14 years.

What must the prosecution prove?

Since Reckless grievous bodily harm or wounding is a criminal offence, the burden of proof lies on the Prosecution.

The prosecution must prove the Accused’s guilt beyond reasonable doubt.

That is a high standard of proof that the prosecution must achieve before someone can be convicted of Reckless grievous bodily harm or wounding.

To establish Reckless grievous bodily harm or wounding the prosecution must prove each of the following matters beyond reasonable doubt:

  • You caused Grievous Bodily Harm to a person;
  • The act was done Recklessly; and/or
  • That it was committed with another person or persons present.

If you are charged with the offence of Reckless grievous bodily harm or wounding what are your options?

National Criminal Lawyers have been successful in defending a number of Reckless grievous bodily harm or wounding charges where the prosecution could not establish each of the elements offence. We have also achieved a number of non-convictions for Reckless grievous bodily harm or wounding.

NCL offer the following options for those who have been charged with Reckless grievous bodily harm or wounding:

  1. We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended;
  2. NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
  3. Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
  4. Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.

Pleading Guilty

If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.

Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.

Our Lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work at increasing the chances of obtaining a non-conviction or section 10.

Maximum Penalties

Reckless grievous bodily harm can be punished with a prison sentence of up to 10 years.

Reckless wounding can be punished with a prison sentence of up to 7 years.

Reckless grievous bodily harm or wounding “in company” can be punished with a prison sentence of up to 14 years

Please note that the penalties mentioned are reserved for the worse case offending and are unlikely to be the penalty you receive.

Pleading Not Guilty

If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.

A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.

National Criminal Lawyers are experts at these hearings and can advise you on what the police must prove beyond reasonable doubt.

Defences

Some of the possible defences available for those charged with Reckless grievous bodily harm or wounding can include:

  • If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue “Duress”;
  • If your actions were necessary to prevent a greater harm from occurring, you may have the defence of “Necessity”;
  • If you were defending yourself or another OR yours or another’s property you may have a Defence of “Self-Defence” even in situations where “Pre-Emptive Force” is used. Moreover, at times there be a circumstances where you may argue that there was “No duty or need to retreat”.

Statistics

The Courts are not bound by statistics however there must be reasonable consistency in sentences. A Magistrate or Judge should have regard to what has been done in other cases. In Green [2011] HCA 45, the plurity judgement of French CJ, Kiefel and Creennan JJ stated:

“Equal Justice” embodies the norm expressed in the terms “equality before the law”. It is an aspect of the rule of law.

For Reckless grievous bodily harm or wounding 41% received full time imprisonment.

Possible Penalty's

In NSW, a court can impose any of the following penalties for an Wounding or grievous bodily harm with intent charge.

  • Prison sentence;
  • Home Detention;
  • Intensive correction order (previously periodic detention);
  • Suspended sentence;
  • Community service order (CSO);
  • Good behaviour bond;
  • Fine; and/or
  • Section 10

However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:

  • Full time Imprisonment;
  • New ICO (ICO) with a home detention condition available;
  • New Community Correction Order (CCO);
  • Fine; or
  • New Conditional release Order (CRO)

Case Studies

Our Principal Lawyer, Mr Michael Moussa appeared for a brother who was charged with reckless wounding. Reckless wounding carries a maximum penalty of 7 years imprisonment.

The facts presented by the police were as follows:

“On 29 May 2017, the victim and the accused were present in their residential home. The victim let the family cats into the house where they have entered the accused’s bedroom and urinated on his bed. The accused confronted the victim about the cats whilst the victim was in the kitchen washing dishes. The accused then took hold of a red coloured swiss army knife that was located on the shelf within the accused’s bedroom and in a downward swinging motion, has cut the victim causing a 10cm wound to the victim’s right forearm”.

Mr Moussa conferenced the Accused and it became apparent that the police omitted a very important piece to the puzzle. Prior to the Accused pulling out a knife and striking the complainant, it was said that the complainant first came at the Accused with a sharpening Stone.

Further inquiries were made with the parents and siblings of the accused who advised Mr Moussa that the victim had a history of violence against family members. Further, they stated the accused was a “gentle and well-nurtured fellow” who had never been in trouble or a fight. He was also in his final year of a law degree which meant serious consequences to his career and his future if he was convicted of a charge of reckless wounding.

The family told Mr Moussa that they did not want either brother to get in trouble and they were certain the wounding occurred when the accused was in fear for his life.

Armed with this knowledge, our Mr Moussa wrote to the police requesting a photo of the stone. The stone was 30cm in width and weighs approximately 10kg. It was a weapon that could inflict serious injury if used against the accused.

This piece of evidence, now available to the defence, combined with the information provided by family members, meant Mr Moussa could now raise self-defence.

A person is not criminally responsible for their conduct if the person carries out the conduct constituting the offence in self-defence.  A person will be held to have carried out the conduct in self-defence if the person believes the conduct is necessary to defend himself and the conduct is a reasonable response in the circumstances as he perceives them.

The test for self-defence poses a two-limb test. The first limb of the test is involves considering what the Accused person was actually thinking. The second limb of the test is determined by whether the conduct of the Accused person is a reasonable response to the circumstances as he perceived them. The second limb was the most difficult as it involved a stabbing. Most judicial officers would argue that this conduct may be an “unreasonable” response, or disproportionate. Our senior solicitor thought it was necessary to subpoena further material about the complainant’s medical record which showed he was aggressive and at times unable to control his actions.

After months of fierce advocacy by Mr Moussa on behalf of the family, police agreed to withdraw the charges. The family rejoiced at the news and are looking forward to moving on with their lives after a very difficult year.

Why National Criminal Lawyers?

There are three reasons to choose National Criminal Lawyers:

1. We get the results

We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.

2. We give a Senior Defence Lawyer guarantee

No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.

3. National Criminal Lawyers are the best defenders of your rights

At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.

If you have been charged with any Reckless grievous bodily harm or wounding offence our Team and National Criminal Lawyers are well versed and specialists in having charges either withdrawn and otherwise achieving favourable outcomes.

Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.

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