Assault, wounding and related offences

Common Assault

Common assault is found under section 61 of the Crimes Act 1900 (NSW). It is commonly known as "assault".

Section 61 states: “Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years”.

An assault may be established by proof of either physical contact (battery), or an act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence. (R v Knight (1988) 35 A Crim R 314 at 316–317; Barton v Armstrong [1969] 2 NSWLR 451 at 454–455; R v McNamara [1954] VLR 137.

Extent of injury

As a charge of common assault does not involve actual bodily harm, an offence is not mitigated by virtue of the fact the injuries suffered by the victim were minor.

Degree of violence

The criminality in an assault is not generally mitigated on account of there being minimal violence. In R v Lardner (unrep, 10/9/98, NSWCCA) it was held that a submission to that effect “overlooks the fact that the degree of violence involved in common assault cases is invariably moderate, because if the violence is more severe it causes actual bodily harm or wounding and results in a more serious charge.” In R v Abboud [2005] NSWCCA 251, the offender assaulted his partner on three separate days by punching, choking, grabbing her face, kicking and biting. It was accepted that the criminality and circumstances involved in the assaults were of the most serious kind for an offence under s 61.

Assault occasioning actual bodily harm

Assault occasioning actual bodily harm attracts a maximum penalty of 5 years imprisonment, or 7 years if committed in company under section 59 of the Crimes Act 1900 (NSW).

Extent of the injury and degree of violence

Section 59 does not define actual bodily harm. Typical examples of injuries that are capable of amounting to actual bodily harm include scratches and bruises. Actual bodily harm will likely have been occasioned where a victim has been injured psychologically in a very serious way, going beyond merely transient emotions, feelings and states of mind. The degree of violence involved in an assault is a material consideration in sentencing.

To convict a person of assault occasioning actual bodily harm, the police must prove each element of the offence beyond a reasonable doubt. That is that they;

  • Intentionally; and

  • Assaulted a person or persons; and

  • That caused an injury or injuries amounting to actual bodily harm.

Recklessly causing grievous bodily harm or wounding

Section 35 of the Crimes Act 1900 (NSW) sets out the following offences and maximum penalties:

  1. recklessly causing grievous bodily harm in company: 14 yrs (SNPP 5 yrs),

  2. recklessly causing grievous bodily harm: 10 yrs (SNPP 4 yrs),

  3. reckless wounding in company: 10 yrs (SNPP 4 yrs),

  4. reckless wounding: 7 yrs (SNPP 3 yrs).

There are two categories of offence depending upon the type of injury inflicted with corresponding higher maximum penalties. The Crown must prove:

  1. the accused caused grievous bodily harm to a person; and

  2. was reckless as to causing actual bodily harm.

Extent and nature of injuries

Generally speaking, the seriousness of the offence will significantly depend upon the seriousness of the wounding. The injury inflicted is not the only factor in determining the seriousness of an offence under s 35. The nature of the attack and surrounding circumstances are highly relevant.

Grievous bodily harm

Section 4(1) defines “grievous bodily harm” to include any permanent or serious disfiguring of the person, the destruction of a foetus, and any grievous bodily disease. At common law, the words “grievous bodily harm” are given their ordinary and natural meaning. “Bodily harm” needs no explanation and “grievous” simply means “really serious”.

The way in which grievous bodily harm may be inflicted varies substantially. The seriousness of an offence under s 35 may be assessed by reference to the viciousness of the attack and severity of the consequences.

In R v Esho [2001] NSWCCA 415 at [160], the court held the offence was properly characterised as a “worst case” having regard to the number of participants and the ferocity of an attack upon the victim. It is not necessary for the injuries caused to the victim to be of the “worst type” for an offence to fall into the “worst case” category (as that concept was understood prior to The Queen v Kilic (2016) 259 CLR 256); the nature of the offender’s conduct may bring it within that category. In Kanengele-Yondjo v R [2006] NSWCCA 354, the offender was sentenced for two offences of maliciously inflicting grievous bodily harm. The offender infected two victims with HIV, knowing he was carrying the virus. The court agreed with the sentencing judge’s assessment of the offences as “heinous crimes which showed a contemptible and callous disregard” for the lives of the victims. The offences were described as falling within the worst case category. The expression “worst case category” should now be avoided as stated in The Queen v Kilic (2016) 259 CLR 256 at [18].

Wounding

“Wounding” is not defined in the Crimes Act. It was been defined at common law to involve the breaking of the skin.

The consequences of a wounding can vary widely. It does not need to involve the use of a weapon. A case involving significant wounding does not by virtue of that factor alone mean the offence attracts the maximum penalty. The offender’s mental state is a relevant factor, particularly if there is a degree of cognitive disturbance and an absence of premeditation.

The prosecution must prove each of the following elements, beyond a reasonable doubt:

  1. That you were the person who committed the relevant act.

  2. That you recklessly wounded the other person.

  3. That the other person’s injury involved the breaking or cutting of the interior layer of the skin.

Punching, hitting, cutting or kicking another person causing the skin to break but not causing permanent or serious disfigurement. A person charged with this offence may argue in their defence that they were acting in self-defence or in defence of another person.

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