assault occasioning grievous bodily harmassault occasioning grievous bodily harm

Off-duty police officers may act in the course of duty if an incident occurs which justifies their immediate action as long as they acted lawfully. Life-changing injuries should be charged as GBH. reprehensible as [an offence under s60(2)] can be, and therefore could be seen as demanding something like the maximum possible of the assault notwithstanding minor injuries: see RvBurke [2001] NSWCCA 47 at[17]. Bodily harm is a legal term of art used in the definition of both statutory and common law offences in Australia, Canada, England and Wales and other common law jurisdictions. societys disapproval of the objective features of such offences Only by imposing severe punishment will courts reflect A "wound" means a break in the continuity of the whole skin JJC (A Minor) v Eisenhower [1983] 3 WLR 537. number of participants and the ferocity of an attack upon the victim. Just as the need for medical treatment may indicate ABH injuries, significant or sustained medical treatment (for instance, intensive care or a blood transfusion) may indicate GBH injuries, even if a full or relatively full recovery follows. General and specific deterrence are important considerations in sentencing for such offences: it may not be possible for the court to determine the precise mechanism by which the offender injured the victim: RvNolan at[72]. It includes any hurt or injury calculated to interfere with (1) 1 Hagg. s59. This In that case, an appeal against a sentence of 5 years, 9months imprisonment with a non-parole A person found guilty of intentionally causing grievous bodily harm faces a maximum sentence of 25 years imprisonment. The House of Lords held in Brown (Anthony Joseph) [1994] 1 AC 212 that in the absence of good reason, the victim's consent is no defence to a charge under the Offences against the Person Act 1861. The offenders use In the absence of such evidence, the question of whether an assault had occasioned psychiatric injury should not be left to the jury and there should be no reference to the victim's mental state following the assault unless it was relevant to some other aspect of the case. of the police, in the performance of their duties, must be supported by the courts. Some examples of Actual Bodily Harm include: Scratches/ breaking of the skin. See T v. DPP [2003] EWHC 266 (Admin), [2003] Crim LR 622. In the Canadian Criminal Code, "bodily harm" is defined as "any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature."[1]. Note Section 48A (Aggravated offences . Similarly, in RvNolan [2017] NSWCCA 91, an assault leaving an infant with horrific injuries and permanent brain damage was characterised as being for the purposes of both specific and general deterrence: RvWatt (unrep, 2/4/97, NSWCCA). was no mitigation: RvMendez [2002] NSWCCA 415 at[16]. Section 58 of the Children Act 2004 continues to apply in England. Where there is a battery, the defendant should be charged with assault by beating: DPP v Little [1992] QB 645. The first type are serious assaults involving injury, such as wounding, torture, or causing grievous bodily harm. Also see the Ill-treatment or Wilful Neglect Offences - Sections 20 to 25 of the Criminal Justice and Courts Act 2015 legal guidance. This episode between the appellant and the complainant was not an isolated one - there had been a background of threats of violence previously. work). Remarks to similar effect were made in RvBarton [2001] NSWCCA 63 at[33]. For the purpose of this brief we distinguish between four types of assault. But in this case the respondents indulged in a brutal and sustained attack upon a defenceless person by kicking or stomping For this offence, the assault (which can be intentional or reckless as above) must have caused some physical harm to the victim. RvMostyn [2004] NSWCCA 97 at[187]. For a useful summary of the relevant sentencing principles see AM v R [2012] NSWCCA 203 at [67][74]. The actual or threatened use of a weapon will generally aggravate a personal violence offence: s21A(2)(c) Crimes (Sentencing Procedure) Act 1999 provided it does not constitute an inherent element of the offence. RvMatzick [2007] NSWCCA 92 at[23]; RvReid [2005] NSWCCA 309 at[25]; RvMackey [2006] NSWCCA 254 at[14] (all s33 cases). The standard non-parole periods are indicated above and apply to offences whenever committed: Crimes (Sentencing Procedure) Act 1999, Sch 2, Pt17. The offence in that case was found to be objectively serious, as the offender had punched the victim in a cold and calculated manner. The expression is not defined by any statute. See Chapter 5 of the Disclosure Manual for further details on reasonable lines of enquiry and third-party material including information on applying for a witness summons. (1) A person who assaults another person and by the assault occasions actual bodily harm is guilty of an offence punishable, on conviction, by imprisonment for 5 years. After hearing Mr. Mines' submissions, the court granted our client a conditional . Where cases have any evidence of non-fatal strangulation or non-fatal suffocation as a distinct offence or alongside other offending, prosecutors must refer to this guidance for consideration regarding the most appropriate charges to lay. It is not the case that the victim of a crime can take the law into his own hands and exact physical revenge. maliciously causing grievous bodily harm with intent to resist or prevent lawful apprehension etc. Pain or hurt such as persisting headaches, vomiting, pains in joints, stomach aches not caused by physical trauma, Mentioned in R v. Morris (Clarence Barrington) [1998] Cr App R 386, Great pain followed by tenderness and soreness for some time afterwards, This may constitute actual bodily harm, even though there is no physically discernible injury. An offence under s59 does not require that the Crown prove the offender intended, or was reckless as to, causing actual bodily In Bolamatuv R [2003] NSWCCA 58, the offender ran over a police officer while leaving the scene in a car. malicious wounding with intent to inflict grievous bodily harm, it was not permissible to sentence an offender for injuries When sentencing for such an offence, the correct approach involves: identifying and taking into account the wounding as well as those injuries related to or closely connected with the actions 686, if this is to be left to the jury. (s33(1)(a)(b)) and wounding or inflicting grievous bodily harm with intent to resist or prevent lawful arrest or detention not charged where those injuries were more serious: McCulloughv R (2009) 194 ACrimR439. necessary to qualify as grievous bodily harm, the injury may constitute an aggravating factor: RvZoef, above, at[123] (where the victim suffered permanent paralysis); RvChisari [2006] NSWCCA 19 at[22] (where the victim was required to undergo surgery, had ongoing medical problems and was unable to In RvAbboud [2005] NSWCCA 251 at[19], the court said: It is impermissible for the Crown to tender, or for a court to admit, evidence in sentencing proceedings for common assault the seriousness which Parliament has attached to such offences by the specific provisions of s33B of the Crimes Act. He spat in her face. date (31January2014), the court has convicted the person being sentenced of the offence, or a court has accepted a plea type can be found in the prescription of a maximum term of twenty five years imprisonment and emphasised the importance of The maximum penalty for Assault occasioning actual bodily harm is five years imprisonment in the District Court or two years imprisonment in the Local Court. Cases involving the reckless or intentional transmission of sexual infection are particularly complex cases, and careful regard must be had to the separate legal guidance on Intentional or Reckless Sexual Transmission of Infection. of an offence: RvDickinson [2004] NSWCCA 457 at[23]; RvReid [2005] NSWCCA 309 at[25]. He seized her neck a third time. Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable F1. In RvLardner (unrep, 10/9/98, NSWCCA) the court considered whether the sentencing judge infringed the De Simoni principle by taking into account matters which constituted the more serious offence of assault occasioning actual bodily Under s 37(2), an offence is aggravated by the fact that the choking, suffocating or strangling is done by the offender with The fact that the victim was unarmed would not generally constitute an aggravating factor under s21A(2)(l), although such duty is liable to 5years imprisonment: s60AB. It need not involve the use of a weapon: RvShepherd, above at[32]. Assault occasioning actual bodily harm Assault Occasioning Actual Bodily Harm- Section 59 Crimes Act 1900 The section does not define what is an actual bodily harm. Assault occasioning actual bodily harm (often abbreviated to Assault OABH, AOABH or simply ABH) is a statutory [1] offence of aggravated assault [2] in England and Wales, Northern Ireland, the Australian Capital Territory, New South Wales, Hong Kong and the Solomon Islands. It was been defined at common law to involve the breaking of the skin: RvShepherd [2003] NSWCCA 351 at[31]; Vallancev The Queen (1961) 108 CLR 56 at77; RvHatch [2006] NSWCCA 330 at[16]; RvDevine (1982) 8 A Crim R 45 at47, 52, 56. on general deterrence: RvMitchell [2007] NSWCCA 296 at[29]. taken into account in sentencing for common assault. Causing grievous bodily harm with intent to do grievous bodily harm/Wounding with intent to do . It is either Section21A(5AA) applies to the determination of a sentence for an offence whenever committed unless, before the commencement There may be exceptional cases where the severity of the threat is not matched by the physical injury sustained in the assault. TheOut-of-Court Disposals in Hate Crime and Domestic Abuse Cases guidance confirms that out-of-court-disposals are available for use by the police in relation to Domestic Abuse cases in the same way as any other type of offence and there is no requirement for the police to refer these cases to the CPS for approval of an out-of-court disposal unless the out-of-Court disposal is a conditional caution. at[28]. The way in which grievous bodily harm may be inflicted varies substantially: RvKama [2000] NSWCCA 23 at[16]. Criminal justice where does the Council fit? medical assistance: HeronvR at[49]. ily harm This thesaurus page is about all possible synonyms, equivalent, same meaning and similar words for the term assault occasioning actual bodily harm. R v. Chan Fook[2] applied this approach. There are three basic types of assault offence set out in law common assault, actual bodily harm (ABH) and wounding / grievous bodily harm (GBH). Keep up to date on sentencing guidelines, consultations, our research and news about the Council and our work. in the high range (at[73]) but did not warrant the maximum penalty because of the offenders favourable subjective case Section 1(4) defines corporal punishment as any battery carried out as punishment. Police and local authorities in England and Wales must discharge their functions having regard to the need to safeguard and promote the welfare of children - Section 11 Children Act 2004. Where a charge of ABH has been preferred, the acceptance of a guilty plea to common assault will not be justified unless there is a significant change in circumstances that affects the seriousness of the offence Indeed, a charge of ABH should not be lessened to one of battery or vice-versa unless there has been a change of circumstances or the original charge selected was clearly wrong. An offence contrary to section 18 may also be committed where the victim is wounded or caused grievous bodily harm in the course of the defendant resisting or preventing the lawful apprehension of any person. s38 in its own right: RvLawson [2005] NSWCCA 346 at[31]; RvDawson [2000] NSWCCA 399 at[54]; SamadivR at[160]. This was followed by the Court of Appeal in R v Constanza,[3] and the House of Lords which confirmed the principle in R v Burstow, R v Ireland. It is enough that the defendant foresaw some physical harm to some person, albeit of a minor character might result: R v Savage; DPP v Parmenter [1992] 1 AC 699. even if they are not on duty at the time, if it is carried out, as a consequence of, or in retaliation for, actions undertaken by the victim in the execution/course of their duty, or. In RvAbboud [2005] NSWCCA 251, the offender assaulted his partner on three separate days by punching, choking, grabbing her face, kicking In RvPickett [2004] NSWCCA 389, the offender pleaded guilty to assault occasioning actual bodily harm to a police officer (s60(2)) after The sentencing judge properly gave considerable weight to the serious injuries occasioned by the assault, but erred said the prosecution "chose to introduce into the case an allegation that even if Mr Martins had suffered no physical injury at all as a result of the assault upon him by the Appellant, he had nevertheless been reduced to a mental state which in itself, without more, amounted to actual bodily harm. object held by the person, and, the assault is not authorised or excused by law, and. In the case of a machete or meat cleaver, the abhorrence which the community holds in relation to the use of knives is compounded, (3) If the offender does bodily harm, and is or pretends to be armed with any dangerous or offensive weapon or instrument or is in company with 1 or more other person or persons, the . Section 6(3) of the Criminal Law Act 1967 applies. Grievous bodily harm is defined under section 320 of the Criminal Code (QLD) as: Any person who unlawfully does grievous bodily harm to another is guilty of a crime. Distress at the breakdown of a relationship is no excuse for violence: Walkerv R [2006] NSWCCA 347 at[7]. government's services and Psychologically in a very serious way, going beyond merely emotions, feelings, and states of mind. value. Grievous bodily harm means really serious physical harm although it does not have to be permanent or dangerous. considering the extent of the grievous bodily harm, if any, in order to properly evaluate the intention to inflict grievous of the Criminal Justice Act 2003 Triable only on . Similar comments were made in RvOKane (unrep, 9/3/95, NSWCCA), a case involving seven counts of maliciously inflicting grievous bodily harm by the offender on Section 37 provides for three separate choking offences. Injuries that would usually lead to a charge of common assault should be more appropriately charged as assault occasioning actual bodily harm under section 47 of the Offences against the Person Act 1861 (on which charge the defence of reasonable punishment is not available) unless the injury amounted to no more than temporary reddening of the skin and the injury is transient and trifling. are regarded by the Court extremely seriously. . of the basic or aggravated offence. A person charged with assault occasioning bodily harm may rely on a legal or a factual defence. My assumption is that it is not an assault, as the mens rea element for GBH is fundamentally different to assault and assault occasioning ABH. intoxication has the same meaning as it has in Pt11A Crimes Act 1900. Evidence of the following factors may assist in proving the intention to kill: Prosecutors should consider the Child Abuse (non-sexual) legal guidance when considering offences of child abuse. ' (a) The accused is convicted on the competent charge of assault with intent to do grievous bodily harm. Common assault is a summary offence. This factor is referred to in the of the nature of the injury inflicted and the intention or mental element with which the offence is committed. This includes both those who have the day to day care of that person as well as those who only have the very short-term care, whether they are family carers, professional carers or other carers. are discussed here. It is not necessary for the injuries caused to the victim Assault occasioning actual bodily harm attracts a maximum penalty of 5years imprisonment, or 7years if committed in company: Prosecutors should refer to the Racist and Religious Hate Crime legal guidance when considering offences classified as racist or religious hate crime. personal and general deterrence therefore had a role to play in sentencing the applicant. and an absence of premeditation: RvAala (unrep, 30/5/96, NSWCCA). reckless wounding in company: 10yrs (SNPP 4yrs). extent at least, vulnerable. This offence is committed when a person unlawfully and maliciously, either wounds another person; or inflicts grievous bodily harm upon another person. If the detention was for the purpose of committing another indictable offence, and such an offence was committed, a count for the substantive offence will usually be enough. required will depend on the nature of the assault: at[38][39]. The phrase bodily harm is to be given its ordinary meaning. clarity, that sentences of imprisonment await those who cause the confrontation to be elevated to one involving extreme violence. But that is not the sense in which the expression is to be understood in the present context: said at[37] that gratuitous cruelty: is less likely to be present where an intentional act gives rise to injuries which were contemplated by the offender as In that case, the circumstances of the offence, including the fact that the victim was a 57-year-old The Code for Crown Prosecutors is a public document, issued by the Director of Public Prosecutions that sets out the general principles Crown Prosecutors should follow when they make decisions on cases. The Children (Abolition of Defence of Reasonable Punishment) (Wales) Act 2020 came into force on 21 March 2022 and it creates a divergence between the law in England and the law in Wales. intent to prevent or hinder investigation. An offenders Part V Children Act 1989 sets out a range of local authority powers. Medical evidence is usually produced to prove that the injury qualifies as grievous bodily harm. Psychological harm that involves more than mere emotions such as fear, distress or panic can amount to ABH. The victim may not therefore have suffered any physical injury, and if any injury was caused, it would need to be quite minor to fall under common assault. A prosecutor should consider the following: It is for the prosecutor to consider all the circumstances to arrive at a decision on the appropriate charge. . For example, the offender may not have intended to cause the victim to think an attack was imminent but if they behaved in way that was likely to make the victim think they were about to be attacked, and they didnt care what effect that behaviour would have, the offender is guilty of the offence. a plea on a lesser charge, it is still impermissible and if it is not possible to adduce material relevant to the sentencing Grievous bodily harm means; the loss of a distinct part or an organ of the body; or. The question of whether a person lacks capacity within the meaning of the Act is to be decided on the balance of probabilities (s.2(4) MCA). Section 25A(2) sets out the aggravated form of the s25A(1) offence. But there is less scope for variation in the nature for example, it involved torture: McCulloughvR at[31]. The fact the offender was, around the time of the assault, armed with Sentencing guidelines for assault on a police constable in the execution of his duty apply to the s.22 offence. A machete is to be considered a very dangerous weapon: RvDrew [2000] NSWCCA 384 at[15]. It is an aggravating factor where the offence is committed in company: RvMaher [2005] NSWCCA 16 at[34]; s21A(2)(e) Crimes (Sentencing Procedure) Act 1999. The distinction between these two sections is the requirement of specific intent for section 18; the offence under section 18 is variously referred to as "wounding . involved in fulfilling the intention with which the drug is given. An offence may take one of four different forms, namely: The difference between this offence and a section 20 offence as above is that in a section 18 offence, the offender must have intended to cause serious bodily harm to the victim. Such offences are viewed very seriously Unless there are aggravating features, the appropriate charge will usually be contrary to section 39 where injuries amount to no more than the following: Whilst the level of charge will usually be indicated by the injuries sustained, ABH may be appropriate in the circumstances of the case including where aggravating features set out below are present: the circumstances in which the assault took place are more serious e.g. significant risks are run by police officers throughout the State in the normal execution of their duties. of a knife to kill a police dog aggravated the offence and took it into the higher levels of objective seriousness: Curtisv R at[66][67]. [8] Assault with intent to do grievous bodily harm consists in an assault which is accompanied by the intent to do grievous bodily harm. One category of assault is an Assault Occasioning Bodily Harm, which occurs when a person strikes, touches, moves or otherwise applies force (either directly or indirectly) to another person without their consent, which causes them to suffer some kind of bodily harm or injury. E+W. time the offence was committed is not to be taken into account as a mitigating factor. The maximum penalty for an offence under s25A(2) is 25years imprisonment. Assault occasioning actual bodily harm (section 47, Offences against the person act 1861) . to the officers head as one falling within the mid-range of objective seriousness. Actual bodily harm will likely have been occasioned where a victim has been injured psychologically The consequences to the victim are not the only important factor and the acts of the offender conduct and the offence. The imposition of suspended sentences for three assault and wounding offences was found in DPPvDarcy-Shillingsworth at[85] not to reflect the communitys interest in general deterrence in domestic violence cases. that they will be dealt with severely: RvMicallef (unrep, 14/9/93, NSWCCA). penalty, given that victims of domestic violence may be actively pressured to forgive their assailants or compelled for other fear of being attacked: R v Woods (unrep, 9/10/1990, NSWCCA); Vaeila v R [2010] NSWCCA 113 at [22]; Mansour vR; Hughes vR [2013] NSWCCA 35 at [43]; R v Tuuta [2014] NSWCCA 40 at [52]; Kocyigit v R [2018] NSWCCA 279 at [36]. That consideration would be understandable in a case where the injury far outweighed what might have been envisaged there is a need to give full weight to the objective of general deterrence and, accordingly, sentences at the high end of . App. However, it is appropriate to charge these offences when a wound is caused by a knife or other weapon, to reflect the seriousness. It is material to the seriousness of an offence that an inmate is vulnerable Maximum Penalties Whosoever assaults any . feature under Crimes (Sentencing Procedure) Act 1999, s 21A(2)(c): R v Hookey at [44], [67]. However, many websites seem to lump GBH within the assault categories (including Sentencing Council). to or is found guilty of such an offence: s12(2). of trust: TheQueenvKilic at[28]. The victim was reduced to a vegetative state following a brutal and sustained attack as he lay unconscious There are also specific offences of assaulting law enforcement officers and frontline emergency and health workers under Pt3 characterised as falling close to the worst of its kind by reason of the injuries inflicted upon the victim. However, SpigelmanCJ emphasised the importance of deterrence as a consideration in sentencing The prosecution need only prove that the accused intentionally or recklessly assaulted the victim and The maximum penalty is 10 years imprisonment. In most cases it should be possible to determine the charge by concluding that the injuries caused are serious or less serious. The potential of the injury was not a matter at[28]. See generally the discussion with regard to the worst case category at [10-005] Cases that attract the maximum: see also TheQueen v Kilic (2016) 259 CLR 256. The prosecution must prove under section 18 that the defendant intended to wound and/or cause grievous bodily harm, and nothing less than an intention to produce that result, which in fact materialised, will suffice. the objective seriousness of an offence under s33: at [41]. In general terms, personal violence offences may be differentiated according to the degree of harm inflicted upon the victim In RvEsho [2001] NSWCCA 415 at[160], the court held the offence was properly characterised as a worst case having regard to the suffered by the victim were minor: RvWilliams (unrep, 30/5/94, NSWCCA). Offences of ill-treatment and wilful neglect are continuing offences (R v Hayles [1969] 1 Q.B. The offences were rightly described as falling within the worst case category: Kanengele-YondjovR at[17]. Factors that may indicate specific intent include a repeated or planned attack, deliberate selection of a weapon or adaptation of an article to cause injury, such as breaking a glass before an attack, making prior threats or using an offensive weapon against, or kicking, the victims head. (s33B(1)). Recklessly wound/cause grievous bodily harm in execution/course of duty: Recklessly wound/cause grievous bodily harm in execution/course of duty. The degree of harm intended in a particular case may make the absence of premeditation less significant: Charges: Assault causing bodily harm; mischief to property under $5000. Guidance on potential defences is set out in the separate legal guidance Self-defence and the Prevention of Crime. Therefore any injury sustained by a child which is serious enough to warrant a charge of assault occasioning actual bodily harm cannot be considered to . The degree of violence used or the ferocity of the attack is a material consideration on sentence: RvZhang [2004] NSWCCA 358 at[18]. It would not involve a situation where someone was very badly hurt unintentionally as a result of a minor scuffle or where during an arrest someone merely intended to resist arrest and in doing so unforeseeably injured the officer arresting him. There is some ambiguity as to the ambit of this offence. The term assault is often used to include a battery, which is committed by the intentional or reckless application of unlawful force to another person. Section 29 of the OAPA 1861: "Whosoever shall unlawfully and maliciously cast or throw or otherwise apply any corrosive fluid with intent to burn, maim, disfigure or disable any person, or to do some grievous bodily harm to any person, shall, whether any bodily injury be effected or not, be guilty of [an offence] ". Personal problems on the part of adults do not excuse such conduct. In Maybury v R [2022] NSWCCA 233, the sentencing judge did not err in assessing a s33(1)(a) offences objective seriousness by finding The definition of personal violence Personal and general deterrence are important considerations in sentencing for offences of violence against prison officers: GOV.UK is the place to find Assaults against police officers have long been treated as serious offences requiring condign punishment: RvCrump (unrep, 7/2/1975, NSWCCA). He grabbed a pair of scissors, cut her fringe, took her nail polish remover and threatened to pour it over the dog and set fire to the dog. In some cases the offenders conduct will be so disproportionate to the provocation that it will be open to find that there The wounding form of these offences should be reserved for those wounds considered to be really serious. A case involving significant wounding does not by virtue of that factor alone mean the offence attracts the The maximum sentence for ABH is five years imprisonment and cases can be heard in the magistrates courts or Crown Court. arise either at common law and/or under s21A Crimes (Sentencing Procedure) Act 1999 are discussed here. Where injury is caused, the likely appropriate charge will be contrary to section 18. because their movements are restricted: Tohifalou v R [2018] NSWCCA 283 at [40][41]. It to an assault such as difficulty sleeping, memory problems, anxiety and poor concentration were therefore matters properly In RvDouglas [2007] NSWCCA 31 at[12], it was held that the number of blows and the circumstances in which they were delivered were relevant