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This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (state and federal industrial tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

Causing Grievous Bodily Harm

In the ACT, the maximum penalty for the charge of Causing Grievous Bodily Harm is five years’ imprisonment, while Intentionally Inflicting GBH carries a maximum prison term of 20 years (or 25 years if the GBH is on a pregnant woman) and Recklessly Inflicting GBH carries a maximum of 13 years (or 15 if on a pregnant woman).

These charges are found in the Crimes Act 1900 near many other sections of related offences such as wounding, assaults and assaults occasioning actual or grievous bodily harm.

Legislation

Case law describes grievous bodily harm as a “really serious injury”. The Act also states that it is:

any permanent or serious disfiguring of the person; and/or
for a pregnant woman – loss of or serious harm to the pregnancy other than in the course of medical procedure (whether or not the woman suffers any other harm).

Section 25 of the Act specifies that causing GBH can be done in one of two ways: by any unlawful act or omission, or by any negligent act or omission. This is why it is a less serious charge than those of Intentional or Reckless Infliction of GBH.

Intentionally Inflicting Grievous Bodily Harm

Section 19 of the Act provides a 20-year maximum prison term for Intentionally Inflicting Grievous Bodily Harm, extendable to up to 25 years if the victim is a pregnant woman.

The penalties are that high because actual “intention” is a high threshold for the Prosecution to prove and, if they do, the seriousness of the matter is obviously greater.

Recklessly Inflicting Grievous Bodily Harm

Section 20 of the Act provides a 13-year maximum prison term for Recklessly Inflicting Grievous Bodily Harm, extendable up to 15 years if the victim is a pregnant woman.

The penalties are set between those for Causing GBH and Intentionally Inflicting GBH to reflect the different standard that is “recklessness”, compared with “intent” on the one hand or simply an “unlawful” or “negligent” act on the other.

To be found reckless, the court must be satisfied that you turned your mind to the real prospect of GBH being caused by your action and went ahead regardless. The definition of “reckless” is found in the Criminal Code 2002 at Section 20.

Examples of recklessly causing GBH include:

throwing a rock at incoming traffic, which results in extensive injuries to the driver;
letting off fireworks in a crowded area, which results in serious disfiguring burns for someone in the crowd.

What The Police Must Prove

To convict a person of causing grievous bodily harm, the police must prove each element of the offence beyond a reasonable doubt:

that the accused committed an unlawful or negligent act or omitted to commit an act;
the act or omission resulted in another person receiving an injury or injuries amounting to grievous bodily harm

and

the act was done recklessly (ie that the accused turned their mind to the real prospect of harm and went ahead regardless);

the act was done intentionally.

Possible Defences

A person charged with this offence may argue in their defence that:

the resulting injury is not so serious as to amount to GBH;
the act which caused GBH was not unlawful or negligent.

Which Court Will Hear Your Matter?

A charge of Causing GBH can be heard and decided in the ACT Magistrates Court. If the court disposes of a case summarily (ie in the Magistrates Court) and convicts the defendant of the offence, the court must not impose a penalty that exceeds a fine of $5000 and/or imprisonment for two years.

If the Prosecution does not elect to have the matter heard summarily, the defence can still consent to the jurisdiction of the Magistrates Court. Otherwise, the matter would be determined in the Supreme Court, where the full statutory penalty would be available to the sentencing judge. Contested matters in the Supreme Court would be heard by a judge and jury. Because of their maximum penalties, Intentionally and Recklessly Inflicting GBH both have to be dealt with by the Supreme Court.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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