What is Grievous Bodily Harm in Criminal Law?

17-year old Brae Lewis and his 15-year old girlfriend, Kyesha Finemore, had a tumultuous relationship involving frequent arguments and even physical violence.

But on a fateful day in May 2016, the level of violence went to a whole other level.

During an argument, Brae doused his partner with petrol before “flicking” a lighter which caused the fumes to ignite and quickly led to Finemore being engulfed in flames.

Brae attempted to “quench the flame” before fleeing the scene, only to be arrested 24 hours later and charged with ‘malicious act intended to cause grievous bodily harm’ pursuant to section 317 of the Criminal Code Act 1899 – an offence which carries a maximum penalty of life imprisonment.

District Court trial

During Mr Brae’s trial in Beenleigh District Court last year, the jury heard that Ms Finemore was left in a coma with burns to more than a fifth of her body, suffers extensive permanent scarring to her hands, neck chest and thigh and is in the grips of depression.

The jury ultimately found Brae guilty of the offence and, during the ensuing sentencing hearing, Ms Finemore read from a heart wrenching victim impact statement.

“I felt heartbroken to think the one that I loved did this horrible thing,” she told the court.

“It was a struggle every day to do day-to-day things.

“After everything that I had to go through I started going down a dark, depressing path.”

The court further heard that Brae had a serious drug problem and was on bail when he committed the offence.

The sentencing judge, Michael Williamson, described Brae’s conduct as “callous and deliberate”.

“Your intention to do grievous bodily harm to the complainant was carried out in a vicious and heinous way,” the judge remarked.

“You set her alight after throwing a known accelerant on her.

“The serious consequences of such an act would have been foreseeable to you, even as a 17-year-old man.”

His Honour sentenced Mr Brae to 11-years in prison. As a domestic violence offender in Queensland, he was ordered to serve at least 80% of that sentence behind bars before being eligible for release on parole.

The appeal

Mr Brae managed to secure the services of a criminal defence barrister to undertake his appeal on a pro bono basis.

The primary ground of appeal was that there was insufficient evidence to satisfy a jury that his client had the required ‘intention’ to cause grievous bodily harm, and the conviction therefore amounted to a miscarriage of justice.

“He was simply trying to cease an argument. He was simply trying to cause fear to her so she would retreat,” the barrister submitted.

“He expresses regret for it and attempts in a meaningful way to diminish the consequences.”

The Crown prosecutor countered by submitting that there was indeed sufficient evidence to establish intention.

“That evidence included, but wasn’t limited to, his statement to the complainant prior to flicking the lighter than he intended to set her on fire,” the prosecutor submitted.

“The appellant has doused the complainant in petrol. She is in close proximity.

“To have then flicked a lighter … it’s a very, very, very dangerous act.”

The appeals judges have reserved their decision.

Causing grievous bodily harm in NSW

Recklessly causing grievous bodily harm is an offence under section 35(2) of the Crimes Act 1900 (NSW) which carries a maximum penalty of 10 years’ imprisonment.

The offence also comes with what’s known as a ‘standard non-parole period’ (SNPP) of 4 years in prison. An SNPP is a guidepost or reference point for the sentencing judge when determining how long an offender must spend behind bars before being eligible to apply for release from prison on parole.

Intentionally causing grievous bodily harm is an offence under section 33(1) of the Act which comes with a 25 year maximum prison sentence, and an SNPP of 7 years.

What is ‘grievous bodily harm’?

Grievous bodily harm (GBH) covers the most serious types of injury, and has been defined by the common law as ‘really serious harm’; DPP v Smith [1961] AC 290; Haoui v R (2008) 188 A Crim R 331.

However section 4(1) of the Crimes Act explains that GBH includes:

• The destruction of a foetus,
• Any permanent or serious disfiguring, and
• Any grievous bodily disease.

This is certainly not an exhaustive list, and juries are often left to decide whether a particular injury is ‘really serious’.

The Public Defenders Sentencing Tables provide some guidance about the types of injuries considered ABH and GBH. Injuries sentenced as ABH include:

• Bleeding from head,
• Serious bruising, and
• Abrasions to shoulder and arm.

However, there are also more serious examples which could arguably amount to ‘really serious harm’, including:

• Skull and brain damage,
• Stabbings with knife, and
• Bleeding requiring stitches and broken ankle.

Injuries sentenced as GBH include:

• Fractured right arm,
• ‘Glassing’ of face requiring stitches,
• Gaping wound to face and throat requiring large number of stitches, and
• Severe facial and cranial injuries.

NSWCCA decision

A decision by the NSW Court of Criminal Appeal provides some guidance on the parameters of ‘grievous bodily harm’.

The judgment in Swan v R (5th May 2016)  involved an appeal by Dean Matthew Swan who was convicted by a jury of ‘recklessly causing grievous bodily harm’.

Mr Swan appealed on the basis that the injuries inflicted by him and a group of other men upon the victim, Mr Dewey, did not amount to GBH.

The group attacked Mr Dewey on his front lawn at Cessnock, kicking and punching him, striking him with a cricket bat and breaking a guitar over his head. Dewey sustained a ‘fracture to the transverse process of the L3 vertebra in his back’ and spent two days in hospital. He testified at trial that he suffered “excruciating” pain in his lower back and struggled to walk for several weeks.

However, evidence was also presented that the injury was not permanent, did not require surgery (as there was no displacement) and no follow-up care was required. Dewey’s treating doctor described the injury as “minor”, despite being classed as a ‘broken back’.

The court ultimately decided that the jury’s finding of GBH was not supported by the evidence, upholding the appeal and replacing the conviction with one of ABH. Mr Swan’s sentence was reduced to 18 months’ imprisonment with a non-parole period of 12 months.