Christmas Gone Wrong

Christmas Day is a time to gather with family and friends to rejoice in the yuletide spirit.

But for some, a long day of drinking, conversation and festivities can spark pent up emotions and have dangerous consequences.

It was reported that in the early hours of Boxing day 2016, two brothers, aged 43 and 41, were involved in a family argument at a house in Toronto, near Newcastle, which resulted in the older brother stabbing the younger.

The 41-year old was treated at the scene by ambulance officers and taken to John Hunter Hospital with non-life threatening injuries.

“The younger brother was taken to hospital and he is in a stable condition”, Lake Macquarie police officer Morri Lundberg said.

“It has been a very busy start to the holidays”.

The elder brother was arrested and charged with assault occasioning actual bodily harm.

In a separate incident on the same day, a 15-year old girl was charged with unlawful wounding and causing grievous bodily harm after allegedly stabbing a couple she was living with in Rockhampton, Queensland.

Police alleged the girl entered the bedroom of a 46-year old woman and 44-year old man at around 1am on the day, stabbed the woman in her neck, chest and legs and stabbed the man in his chest and leg.

The woman was taken to Rockhampton Base Hospital and in a critical but stable condition. The man was in a stable condition.

Assault Occasioning Actual Bodily Harm

Assault occasioning actual bodily harm is an offence under section 59 of the NSW Crimes Act (‘the Act’) which carries a maximum penalty of five years’ imprisonment, or seven years if committed with another or other persons.

‘Actual bodily harm’ (ABH) is harm which is more than ‘transient or trifling’; in other words, more than slight harm – such as minor redness or passing scratches – which quickly subside; Donovan [1934] 2 KB 498.

Examples of ABH may include bruises or lasting scratches or swelling; McIntyre v Regina (2009) 198 A Crim R 549 at para [44].

Transient emotions, feelings or states of mind do not amount to ABH unless there is evidence of very serious psychological harm, or psychiatric injury; Li v R [2005] NSWCCA 442 at [45]; Chan Fook (1994) 1 WLR 689.

Wounding

A ‘wounding’ is where both layers of skin are broken, namely the dermis and epidermis; Shepherd [2003] NSWCCA 351. it encompasses all cuts which penetrate into the flesh, and even a ‘split lip’; R v Hooper [2004] NSWCCA 10 at [36]

Reckless wounding is an offence under section 35 of the Act which carries a maximum penalty of seven years’ imprisonment, or ten years if committed in the company of another person.

Section 33 of the Act prescribes a maximum penalty of 25 years’ imprisonment for wounding with intent to cause grievous bodily harm.

Grievous Bodily Harm (GBH)

GBH covers the most serious types of injuries, 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.

Section 4(1) of the Act says GBH includes:

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

However, 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.

There is a significant overlap between ABH and GBH in so far as a particular injury may be categorised as either, and, in practice, the ultimate charge will often depend on negotiations between the parties, which frequently take into account pragmatic factors as well as the law.

That said, it should be noted that a court cannot accept a plea of guilty to a charge which is based upon ‘facts’ that clearly indicate a more serious charge; for example, that obviously amount to GBH rather than ABH; The Queen v De Simoni (1981) 147 CLR 383 at 389. The description of injuries contained in the facts may therefore need to be amended before a plea is entered.

Court Decision

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

The judgment in R v Swan of 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.