A Guide on the Law on Wounding or causing Grievous Bodily Harm in NSW

 

It is reported that a 49-year old man from Florida has allegedly severed the penis of a man using scissors after suspecting that he was having an affair with his wife.

The 49-year old man, Alex Bonilla had allegedly held the man at gunpoint and tied him before cutting his penis off with scissors. This is alleged to have occurred while the alleged victim’s 2 kids were inside the house.

It’s reported that after he cut of the penis, Bonilla then left the scene with the penis.

Reports say that in May 2019, Bonilla found the man in Bonilla’s home having sex with his wife.

While we are unaware as to whether the man’s penis was later reattached, there are reports that the man is now recovering in a hospital from the injuries sustained.

Bonilla has been charged for the assault, in addition to further charges of false imprisonment, and using a firearm.

A Guide on the Law on the Offence of Wounding or causing Grievous Bodily Harm in NSW

What are the Penalties for Wounding or Grievous Bodily Harm Offences?

There are 5 types of this offence in NSW, each attracting their own penalties in NSW.

The first, is the offence of intentionally causing grievous bodily harm or wounding under section 33 Crimes Act 1900 (NSW).

This offence carries a maximum penalty of up to 25-year prison, with a standard non-parole period of 7-years.

The second, is the offence of recklessly cause grievous bodily harm under section 35(2) Crimes Act 1900 (NSW).

This offence has a maximum penalty of up to 10-years prison, with a 4-year standard non-parole period.

The third, is the offence of recklessly cause grievous bodily harm in company under section 35(1) Crimes Act 1900 (NSW).

This offence attracts a maximum penalty of up to 14-years prison, with a 5-year standard non-parole period.

The fourth, is the offence of reckless wounding under section 35(4) Crimes Act 1900 (NSW).

This offence carries a maximum penalty of up to 7-years imprisonment, with a 3-year standard non-parole period.

The fifth, is the offence of reckless wounding in company under section 35(3) Crimes Act 1900 (NSW).

This offence has a maximum penalty of 10-years imprisonment, with a standard non-parole period of 4-years.

 

What is the Standard non-parole period?

The standard non-parole period represents the minimum prison time a convicted offender is required to spend behind bars before he/she can be eligible for release on parole in NSW, if his/her offence is considered to be in the middle range of ‘objective seriousness’ for offences of this kind.

In the event an offence is assessed by the sentencing Judge to fall in the mid-range on objective seriousness, the standard non-parole period noted above is not a mandatory application for a sentence. It is meant to be used only as a guidepost to help the Judge in coming to an appropriate sentence for an offender.

 

What is ‘Grievous Bodily Harm’

‘Grievous bodily harm’ is where there is a really serious injury, including serious or permanent disfigurement of a person. This can include broken bones or severing a body part.

Grievous bodily harm can also include grievous bodily disease, such as HIV.

 

What is ‘Wounding’?

‘Wounding’ is where the skin breaks. It includes a split lip.

 

What is ‘Actual Bodily Harm’?

‘Actual bodily harm’ is harm or injury which need not be permanent, but must be more than merely transient or trifling, and something that is less than ‘grievous bodily harm’ or ‘wounding’.

An example of actual bodily harm includes a scratch or bruise.

 

What is Recklessness?

If you’re charged with reckless wounding or causing grievous bodily harm to a person, the police here are alleging that you had realised the possibility of causing the person an ‘actual bodily harm’ at the time but went ahead and committed the alleged act regardless.

A charge of recklessly committing an assault of this kind is generally considered less serious, attracting a more lenient sentence, than an assault where you intended to cause a wound or grievous bodily harm on the victim.

 

In Order to be Guilty, what Must the Police Prove in Court?

To be guilty of recklessly causing grievous bodily harm or wounding, the prosecution is required to prove each of the following elements in court beyond reasonable doubt:

  1. The accused person caused grievous bodily harm or wound to the alleged victim; and
  2. The accused person, at the time, foresaw the possibility of causing ‘actual bodily harm’ to the alleged victim but still committed the act anyway.

To be guilty of intentionally causing grievous bodily harm or wounding, the prosecution is required to prove each of the following elements in court beyond reasonable doubt:

  1. The person accused inflicted a wound or grievous bodily harm on the alleged victim; and
  2. The person accused intended to cause this to the alleged victim at the time of committing the act.

The wounding or grievous bodily harm charge will be dismissed in court or withdrawn early through negotiations by your defence lawyer if the police are unable to prove any 1 of the above elements of the relevant charge.

Some defences to this an assault include, a mistaken identity as to the accused person, self-defence argument in assault cases, citizen’s arrest with the use of reasonable force and necessity or duress.

 

Avoiding a Criminal Conviction for Assault

Committing an assault is considered very serious by courts.

When imposing an appropriate penalty as a sentence, the court considers many factors, including your good character through character reference letters for court, and your remorse and insight through an apology letter for the court to read or psychologist report.

Amongst the factors considered by the court when imposing a sentence is the objective seriousness of the offence. The higher the seriousness of the assault, the higher the penalty is likely to be. The lower the seriousness is considered objectively, the more lenient the penalty is likely to be.

Factors such as, the extent of injury occasioned on the victim, whether there was provocation, how long the assault occurred for are very relevant factors.

The court also considers the purposes of sentencing when imposing an appropriate penalty sentence. Amongst the purposes, it includes setting an example and punishing the offender appropriately.

A court for an appropriate assault case can and does impose a non-conviction sentencing penalty under either a section 10(1)(a) dismissal or a non-conviction Conditional Release Order.

It’s important to get early reliable advice from an experienced criminal lawyer to maximise your chances at getting this kind of outcome if it can apply to your case.

About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Australia's Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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