Criminal Law

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There are different categories of assault in NSW. Some of the more common types of assault include, but are not limited to:

  1. Common assault
  2. Assault occasioning actual bodily harm
  3. Recklessly causing grievous bodily harm or wounding

Common assault, section 61 of the Crimes Act 1900

A common assault is any act (and not a mere omission to act), by which a person intentionally, or recklessly, causes another person to apprehend immediate and unlawful violence. An assault does not necessarily involve physical contact with another person. Physical contact is not an element of this offence, however assault includes “battery” which is actual physical infliction of unlawful force upon another person.

The maximum penalty for this offence is 2 years imprisonment.

The defences that may be available in relation to this offence include, but are not limited to:

  1. Self-defence
  2. Duress
  3. Necessity
  4. Consent
  5. Lawful correction
  6. Accident

Assault occasioning actual bodily harm, section 59 of the Crimes Act 1900

This offence requires an additional element of “actual bodily harm”.

What is actual bodily harm?

Actual bodily harm is not defined in the Crimes Act 1900.

The meaning of “actual bodily harm” was recently considered in the case of Swan v R [2016] NSWCCA 79. The Court confirmed that actual bodily harm means any hurt or injury that interferes with the health or comfort of a person. Such an injury does not need to be permanent, but it must have more than a fleeting or trivial effect upon the victim…bruising may constitute actual bodily harm.

If found guilty of this offence, the maximum penalty is 5 years imprisonment.

If the offence was committed in the company of another person or persons, a person convicted of this offence is liable to imprisonment for 7 years.

Recklessly causing grievous bodily harm or wounding, section of the 35 Crimes Act 1900

Section 35 outlines 4 offences, together with the associated penalties. Each offence also has a standard non-parole period. A non-parole period is the period for which an offender must be kept in detention in relation to the offence.

1. Recklessly causing grievous bodily harm in company

The maximum penalty is 14 years imprisonment with a standard non-parole period of 5 years.

2. Recklessly causing grievous bodily harm

The maximum penalty is 10 years imprisonment with a standard non-parole period of 4 years.

3. Reckless wounding in company

The maximum penalty is 10 years imprisonment with a standard non-parole period of 4 years.

4. Reckless wounding.

The maximum penalty is 7 years imprisonment with a standard non-parole period of 3 years.

What is grievous bodily harm?

Section 4 of the Crimes Act 1900 states that “grievous bodily harm” includes:

(a) 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

(b) any permanent or serious disfiguring of the person; and

(c) 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).

The meaning of “grievous bodily harm” was recently considered in the case of Swan v R [2016] NSWCCA 79. It was said that grievous bodily harm is a more serious form of injury than actual bodily harm. The injury is not required to be permanent, but they do require that the injury is a “really serious” one. The court also confirmed that there is no bright-line by which an injury can be classified as really serious bodily injury; it is always a question of fact and degree.

What does reckless mean?

If an accused person realised that the harm or wounding may possibly be caused by the accused person’s actions, yet the accused person went ahead and acted as he or she did, then the injury is caused recklessly.

The defences that may be available for these offences include but are not limited to duress, necessity and self-defence.

If you have been charged with any of the above offences, it is very important that you obtain legal advice as soon as possible.

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