Serious Assaults
The Crimes Act 1900 NSW includes a number of offences for serious assaults. An assault usually involves the application of force of some kind to another person, or the threat of it, without consent and without lawful excuse. Assaults are classified according to the type of harm that was inflicted – either grievous bodily harm or actual bodily harm. Grievous bodily harm means really serious bodily injury, that results in any permanent or serious disfiguring of the person. If the harm is not considered to be grievous then the harm is actual bodily harm. Actual bodily harm is any hurt or injury that interferes with the health or comfort of a person. Wounding involves the breaking or cutting of the interior layer of the skin (the dermis).
The most prevalent assault offences prosecuted in the District Court by the ODPP are Wounding or Grievous bodily harm with intent (s 33 Crimes Act 1900) and the alternative offence of Recklessly inflicting grievous bodily harm or wounding (s 35 Crimes Act 1900). The difference between the offences is the mental element of the offence. The more serious offence (section 33) requires the prosecution to prove that the accused intended to inflict that level/type/form of assault. The alternative offence only requires the prosecution to prove that they committed the act recklessly. An accused is reckless if they realise that actual bodily harm may possibly be inflicted on or upon the victim by his or her actions, yet the accused went ahead and did the act regardless.
If an accused person becomes intoxicated by their own choice and actions it is not a defence to an assault. If an accused acted in self-defence, this might be a defence.
The ODPP prosecutes domestic violence offences involving serious assault where wounding or grievous bodily harm occur. Other domestic violence offences are prosecuted by Police Prosecutors in the Local Court or Children’s Court.
Sentencing
Wounding or grievous bodily harm with intent (section 33) has a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years. A “standard non-parole period” is a guidepost for a sentencing judge when he or she is deciding how much of the sentence must be spent in custody before an offender is eligible for release on parole.
The maximum penalty of 25 years is the highest maximum penalty in the legislation (short of life) and is indicative of the seriousness with which offences under section 33 are regarded. As offences under section 33 cover a broad range of offending. Relevant considerations for the sentencing judge include the degree of violence, the ferocity of attack, whether the offence was unprovoked, and whether the offence was committed on a victim going about their ordinary business.
The maximum penalty for Reckless grievous bodily harm or wounding (section 35) is between 7 years and 14 years (depending on whether the offender causes grievous bodily harm or wounding and whether they are in company at the time). These offences also have a standard non-parole period of between 3 and 5 years. Section 35 is a Table 1 offence which means that it can be prosecuted in the Local Court. If prosecuted in the Local Court the maximum penalty under that jurisdiction is 2 years.
Where serious assaults are committed in a domestic context the High Court has said that the role of the criminal justice system is “…to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. […]": Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54].