Introduction

While criminals are commonly perceived as intentionally dangerous, the law also recognises reckless harm as an offence. Reckless wounding is a serious offence under section 35(4) of the Crimes Act 1900 (NSW), carrying significant legal consequences. This offence is classified as a Table 1 offence, meaning it can be heard in either the Local Court or the District Court, with maximum penalties of 7 years imprisonment in the District Court and 2 years in the Local Court. 

Understanding the legal implications of reckless wounding is crucial for those charged, as it involves proving a wound was inflicted and that the accused acted recklessly, disregarding the risk of actual bodily harm. This guide provides essential insights into key aspects of the offence, including defences, sentencing factors, the importance of legal representation. Particularly, understanding the intricate elements of recklessness and wounding is essential to the accused and victims alike. 

Understanding the Offence of Reckless Wounding in NSW

Reckless Wounding Defined

Reckless wounding is a serious criminal offence under section 35(4) of the Crimes Act 1900 (NSW). It involves causing a wound to another person through reckless actions, without the intent to inflict grievous bodily harm. Briefly mentioned above, this offence is a Table 1 offence, meaning it can be dealt with in either:

• The Local Court, or
• The District Court

The venue depends on the severity of the case and the choice of the prosecution or defence.

A wound is defined as an injury that breaks the inner layer of the skin (dermis). This can include injuries such as:

• Deep cuts
• Lacerations
• A split lip

It’s important to note that bruises, scratches, or marks that only break the outer layer of skin (epidermis) do not constitute a wound.

Recklessness in this context means that the accused person foresaw the possibility of causing actual bodily harm but proceeded with their actions regardless. This represents a lower level of culpability than intent, where the accused knowingly caused harm. For example, punching someone and splitting their lip could amount to reckless wounding if the accused realised the risk of harm but acted anyway.

Distinction Between Actual Bodily Harm and Grievous Bodily Harm

Actual bodily harm (ABH) refers to injuries that are more than transient, such as:

• Bruises
• Scratches
• Minor cuts

In contrast, grievous bodily harm (GBH) involves more serious injuries that have a significant impact on the victim’s health, including:

• Broken bones
• Permanent disfigurement
• Damage to internal organs

The distinction between ABH and GBH is crucial, as it determines the severity of the offence and the applicable penalties. While reckless wounding under section 35(4) carries a maximum penalty of 7 years imprisonment, reckless wounding that results in GBH under section 35(2) carries a more severe maximum penalty of 10 years imprisonment.

Understanding these distinctions is essential for individuals facing charges, as the classification of the injury will significantly influence the legal consequences and defence strategy.

Elements the Prosecution Must Prove in Reckless Wounding Cases

Proving the Occurrence of a Wound

A wound is defined as an injury that breaks the inner layer of the skin, known as the dermis. This can include injuries such as deep cuts, lacerations, or a split lip. Importantly, a wound does not require the use of a weapon; for example, a punch that results in a split lip can constitute a wound.

The prosecution must present medical evidence to prove that the inner layer of the skin was broken. Bruises, scratches, or marks that only affect the outer layer of skin (epidermis) do not qualify as wounds.

Demonstrating Reckless Conduct

The second element the prosecution must prove is that the accused acted recklessly. This means the accused foresaw the possibility of causing actual bodily harm but proceeded regardless.

Actual bodily harm includes:

• Bruises
• Scratches
• More serious injuries

It’s important to note that the harm does not need to be permanent.

For example, if someone punches another person, causing a split lip, they may be found guilty of reckless wounding if it can be shown that they realised the risk of causing harm but chose to act anyway.

The prosecution does not need to prove that the accused intended to cause harm—only that they were aware of the risk and acted despite it.

By establishing these two elements—the occurrence of a wound and reckless conduct—the prosecution can prove the offence of reckless wounding. 

Reckless Wounding in Company

If the offence of reckless wounding is committed in company, under section 35(3) of the Crimes Act 1900 (Cth), the prosecution must also prove that at least one other person was present and that all parties involved shared a common purpose to commit the offence. This means that the accused and the other person(s) must have been acting together with the intention to cause harm or recklessly cause actual bodily harm.

The presence of another person does not necessarily mean they must have directly caused the wound, but they must have been involved in the act in such a way that they shared the intention or recklessness of the accused. For example, if two people are involved in a physical altercation where one person punches the victim and the other restrains them, both could be considered to have acted in company.

The penalties for reckless wounding in company are more severe, with a maximum penalty of 10 years imprisonment, reflecting the increased seriousness of the offence when multiple individuals are involved. The prosecution must establish that the accused and the other person(s) were acting in concert, with a shared intent or recklessness regarding the harm caused.

By establishing that the accused was in company, in addition to the abovementioned elements, the prosecution can prove the offence of reckless wounding in company.

Penalties & Sentencing for Reckless Wounding in NSW

Sentencing for Recklessly Wounding – Section 35(4)

Reckless wounding is a serious offence, carrying significant penalties. The severity of these penalties varies depending on the court:

• In the District Court, offenders face a maximum penalty of 7 years imprisonment with a standard non-parole period of 3 years
• In the Local Court, the maximum penalty is limited to 2 years imprisonment

Therefore, for offences under section 35(4), which involve recklessly causing actual bodily harm, the penalties are severe. When determining the appropriate sentence, courts consider multiple factors, including the severity of the injury, the nature of the assault, and the offender’s personal circumstances and criminal history.

According to judicial statistics, the distribution of penalties for section 35(4) offences shows varying approaches to punishment:

• Community Correction Orders were imposed in 25% of cases
• Intensive Correction Orders were used in 35.6% of cases
• Imprisonment was the penalty in 37.7% of cases

The average full-term imprisonment sentence was 18 months, with an average non-parole period of 10 months. These statistics highlight the court’s approach to balancing punishment with rehabilitation, reflecting the seriousness of the offence and the need to protect the community.

Defences & Plea Options for Reckless Wounding Cases

Self Defence and Other Legal Defences

Self-defence is one of the most common defences for reckless wounding charges. To establish self-defence, the accused must:

• Have reasonably believed it was necessary to use force to protect themselves or another person from an unlawful attack
• Ensure that the response was proportionate to the threat faced

For example, pushing someone away to avoid being hit could be considered self-defence. However, continuing to attack after the threat has passed would not.

Moreover, other legal defences include:

• Duress: Being forced to commit the act due to a direct threat
• Necessity: Actions taken to avoid a greater harm

Both defences require clear evidence that the accused had no other reasonable choice but to act as they did.

Plea Negotiation and Guidance on Pleading

When deciding whether to plead guilty or not guilty, it’s crucial to consider the specific circumstances of the case. If the accused accepts responsibility but believes the charges are too severe, their lawyer may negotiate with the prosecution to reduce those charges—for instance, from reckless wounding to assault occasioning actual bodily harm.

The decision to plead guilty or not guilty should be made after consulting with a criminal lawyer. Legal counsel can:

• Assess the case’s strengths and weaknesses
• Negotiate with prosecutors
• Prepare the defence
• Ensure the police facts are accurate
• Advocate for a more favourable outcome, such as a less severe charge or sentence

Seeking legal advice is essential to navigate the complexities of reckless wounding cases and to explore all available defences and plea options effectively.

Conclusion

Reckless wounding is a serious offence, carrying significant legal consequences. Understanding the elements of the offence, such as the definition of a wound and the concept of recklessness is crucial for anyone facing charges. The penalties for reckless wounding can vary depending on the severity of the injury and whether the offence was committed in company, ranging from 7 to 10 years imprisonment. It is essential to be aware of the distinctions between actual bodily harm and grievous bodily harm, as these classifications significantly impact the legal outcomes.

If you or someone you know is facing charges related to reckless wounding, it is vital to seek expert legal advice. The criminal lawyers at Daoud Legal specialise in handling such cases and can provide tailored guidance towards delivering you the best possible outcome. Our expertise involves building robust defences, negotiating plea deals, and mitigating sentences. Don’t hesitate to contact Daoud Legal today for trusted advice and representation.

Frequently Asked Questions