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Causing GBH by Unlawful or Negligent Act

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

In NSW, the charge of Causing Grievous Bodily Harm by an Unlawful or Negligent Act carries a maximum penalty of 2 years imprisonment. People are charged with this offence where they commit an act that causes a person to suffer a very serious injury without intending to cause the injury.

In NSW, a court can impose any of the following penalties.

The offence of Causing Grievous Bodily Harm by an Unlawful or Negligent Act:

Section 54 of the Crimes Act states:

Whosover by any unlawful or negligent act, or omission, causes grievous bodily harm to any person, shall be liable to imprisonment for two years.

What does 'grievous bodily harm' mean?

The Crimes Act defines GBH as 'any permanent or serious disfiguring of the person, the destruction of a foetus and any grievous bodily disease'. The law requires the injury to be 'really serious', but not necessarily permanent, long lasting or life threatening. 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 court has found to constitute GBH include:

  • Brain damage;
  • Jaw and skull fractures;
  • Infecting someone with HIV;
  • Severe lacerations that require a large number of stitches, nerve reconstruction and/or surgery;
  • Causing a mother to lose her foetus; and
  • Facial fractures and laceration of the right ear 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 recover times; and
  • Cuts and lacerations.

What actions might constitute unlawful or negligent acts?

The offence may be proved if GBH resulted from an act that was either:

  • Unlawful; or
  • Negligent.

An unlawful act is any act against the law. That is, an act that is an offence under legislation or common law. Trivial offences against prohibitions or regulations aren't 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.

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 large 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 onto an ignited barbeque, causing an explosion and severe burns.

What Court will hear your matter?

This charge is a "Table 1" offence which means that either the person charged or the prosecution can elect to have the matter dealt with in the District Court. If neither party makes this election the matter will be finalised in the local court.

What must the prosecution prove?

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

  • You did 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 of Causing GBH by Unlawful or Negligent Act:

The most common ways to defend this charge include:

  • To maintain your innocence if you did not commit the act;
  • To argue that the resulting injury is not so serious to amount to GBH;
  • To argue that the act which caused GBH was not unlawful or negligent; or
  • So raise self-defence, necessity or duress as the reason for inflicting GBH.

Types of penalties:

Jail: This is the most serious penalty and involves full time detention in a correctional facility. Read more.

Home Detention: As a result of amended legislation this penalty was repealed on 24 September 2018 as a standalone order but may be imposed as a condition of an Intensive Corrections Order (ICO). Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring. Read more.

Intensive corrections order (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.

Suspended sentence: As a result of amended legislation this penalty was repealed on 24 September 2018. This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.

Community service order (CSO): As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.

Good behaviour bond: As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.

Community Corrections Orders (CCO): A CCO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the Community Corrections Orders (CCO). Additional conditions may be imposed at the discretion of the court, both at the time of sentence and subsequently upon application by a community corrections officer, juvenile justice officer or the offender. Read more.

Fines: When deciding the amount the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Section 10A: A section 10A is a conviction, with no other penalty attached to it. Read more.

Conditional Release Order (CRO): A CRO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the CRO. Read more.

Section 10: avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.


where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

Why Choose Armstrong Legal?

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