Reckless Grievous Bodily Harm -sections 35(1) and 35(2) of the Crimes Act 1900

The maximum penalty for Reckless Grievous Bodily Harm is:

• imprisonment for ten years, or
• fourteen years imprisonment under circumstances of aggravation (more than one person is involved in the assault) – where you are charged under section 35(1) only.

Please note that such penalties are reserved for the most serious cases only.

This option is recommended only where you accept that:

• you intentionally inflicted an injury on a person; and
• the injury amounted to grievous bodily harm; and
• you foresaw or were reckless to possibility causing grievous bodily harm; and
• where the offence is committed in company, you accept that at least one person shared a common purpose with you: (Applies only to those charged under s 35(1) of the Crimes Act 1900).

A plea of guilty at the first available opportunity entitles you to a maximum sentencing discount of 25 per cent. It also demonstrates to the court that you have accepted responsibility for your actions.

What possible outcomes exist if found guilty?

• A non-conviction via a section 10 – asking the court for leniency
  • Leniency is where the court has found you guilty, but has exercised a discretion not to convict you. Therefore, you will avoid:
    • a fine or a penalty.
    • a conviction.
• Conditional release order “CRO” (with or without conviction)
  • This is usually subject to a period of good behaviour.
  • If an offence is committed during the period of the order, a court may resentence you for the offence committed.
• Community Corrections Orders (“CCO”)
  • A court may exercise this option (when aggravating circumstances Examples of aggravating circumstances include a repeat offence.
  • An example of a CCO is performing service within the community.
• Intensive Corrections Order (“ICO”)
  • This is where a term of imprisonment can be served in the community.
• Full-time imprisonment
  • Served in a correctional facility.

The seriousness of an offence under s 35 may be assessed by reference to the viciousness of the attack and severity of the consequences: R v Kama (2000) 110 A Crim R 47 at [17]. This will impact the penalty given.

The most likely penalty for this offence is a term of imprisonment, even for first time offenders.

The Prosecution must establish beyond a reasonable doubt that:

• the accused intentionally inflicted an injury on a person;
• the injury amounted to grievous bodily harm;
• the accused foresaw or was reckless to causing grievous bodily harm; and
• where the offence is committed “in company” at least one other person shared a common purpose with the accused.

If the Prosecution cannot prove all of the above elements beyond reasonable doubt, then the court must find you not guilty.

NB: Alternative verdict

Where an offence under s 35 is not proven, but the evidence shows the person has committed an offence against a subsection of this section (carrying a lesser maximum penalty), the accused may be acquitted of the offence charged, but found guilty of an offence against that other subsection.

Defences to Reckless Grievous Bodily Harm

• Self-defence
  • The law allows the use of reasonable force to protect your yourself, your property or someone else against physical injury or damage.
  • You must have honestly and reasonably believed that there was a threat to your safety.
  • The courts will consider the nature of the threat faced and the accused’s physique, age, and sex.
  • Alcohol-induced paranoia is not a defence.
• Duress
  • Another person coerced or threatened you into harming another person, or the circumstances warranted such an action.
• Necessity
  • To stop a greater harm from occurring.
• The injuries do not amount toGrievous Bodily Harm
  • An argument may exist that the injuries amount to Actual Bodily Harm (a less serious charge) and not Grievous Bodily Harm.
  • This is a common defence.
• Mistaken identity
  • You did not cause the harm sustained to the victim.