Threat to Inflict GBH

The maximum penalty for the charges of both inflicting and threatening to inflict Grievous Bodily Harm is five years’ imprisonment.

The Offence of Inflicting Grievous Bodily Harm

Section 25 of the Crimes Act 1900 states:

A person who, by any unlawful or negligent act or omission, causes grievous bodily harm to another person is guilty of an offence punishable, on conviction, by imprisonment for 5 years.

The Offence of Threatening To Inflict Grievous Bodily Harm

Section 31 of the Act states:

If a person makes a threat to another person to inflict grievous bodily harm on that other person or any third person, intending that other person to fear that the threat would be carried out; or being reckless whether or not that other person would fear that the threat would be carried out; and the threat is made without lawful excuse; and in circumstances in which a reasonable person would fear that the threat would be carried out, the first-mentioned person is guilty of an offence punishable, on conviction, by imprisonment for 5 years.

What Is Grievous Bodily Harm?

Case law describes “Grievous Bodily Harm” (GBH) as a “really serious injury” but not necessarily permanent, long-lasting or life-threatening. The dictionary in 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).

Whether an injury amounts to GBH is to be determined on a case-by-case basis. There is often contention between the prosecution and the defence as to whether a particular injury amounts to GBH or whether it falls within the scope of the less serious charge of assault occasioning actual bodily harm.

Some examples of injuries that the courts have found to constitute GBH include:

• brain damage;
• jaw and skull fractures;
• severe lacerations that require stitches, nerve reconstruction and/or surgery;
• causing a woman to lose her foetus; and
• facial fractures requiring steel plates and screws, causing ongoing headaches and continuing treatment.

Some examples of injuries that the court has found NOT to constitute GBH include:

• uncomplicated fractures of the arms or legs;
• facial fractures which require minor surgery with relatively short recovery times; and
• cuts and lacerations.

What Actions Might Constitute Unlawful or Negligent Acts?

An unlawful act is any act that is against the law. That is, an act that is an offence under legislation or common law. Trivial offences against prohibitions or regulations are not included and the act must be a “dangerous” act.

Examples of unlawful acts include:

• Illegal dumping of toxic chemicals into a stream causing serious injury to swimmers;
• Jaywalking and causing a motorist to have a serious accident; and
• Keeping a dangerous animal without a licence and/or proper enclosure which escapes and attacks someone (though there are separate offences in relation to the keeping of dogs).

A negligent act is an act that falls short of the standard which would be expected of a reasonable person. The case of R v Nydam [1977] VR 430 held that the negligent act must involve a high risk of death or GBH. The act must be done consciously and voluntarily without an intention of causing GBH (otherwise it would be the offence of intentionally inflict GBH).

Examples of negligent acts include:

• Failure to seek medical treatment of a 3-year-old girl suffering from a broken arm and a laceration to her forehead. The delay in treatment caused permanent scarring of the face and permanent disfigurement and shortening of her arm;
• A nurse failing to obtain appropriate treatment for her patient after knowing or suspecting that she had incorrectly administered a drug; and
• Throwing methylated spirits from a bottle on to an lit barbecue, causing an explosion and severe burns.

What the Police Must Prove

To be convicted, the prosecution must establish beyond reasonable doubt that:

• you did (or threatened to do) an act that caused a person to sustain an injury;
• the act was either negligent or unlawful; and
• the injury amounted to grievous bodily harm.

Possible Defences For A Charge Causing GBH By Unlawful Or Negligent Act

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

• the resulting injury is not so serious as to amount to GBH;
• to argue that the act which caused GBH was not unlawful or negligent; or
• that the accused was acting in self-defence.

What Court Will Hear Your Matter?

As both charges carry a maximum penalty of five years’ imprisonment, the Prosecution can elect (within a specific timeframe) for your matter to be kept in the Magistrates Court, where the maximum penalty that can be imposed is two years’ jail.

If the Prosecution does not make that election, the Defence can still “consent to the jurisdiction” of the Magistrates Court but may choose instead to have the matter heard in the Supreme Court. This course provides for a contested matter to be decided by a jury.

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