If you have been charged with recklessly inflicting grievous bodily harm, the prosecutor must prove that:
Being ‘reckless as to whether or not your conduct would cause the other person grievous bodily harm means that you realised that your conduct may cause the complainant to suffer grievous bodily harm but continued regardless. This is a question for the judge or jury, who would consider all of the surrounding circumstances.
The Crimes Act 1900 (ACT) defines grievous bodily harm as “any permanent or serious disfiguring of the person”. In DPP v Smith [1961] AC 290 and Swan v R [2016] NSWCCA 79, the courts clarified that this refers simply to any injury deemed “really serious”. This includes a fractured eye socket, a broken bone, or a severe laceration to the face which requires stitching and will permanently leave a scar. To be found guilty of this offence, the prosecution must prove that recklessly inflicted an injury of this magnitude upon another person. Inflicting an injury that does not amount to grievous bodily harm may result in you being charged with the lesser offence of common assault or recklessly inflicting actual bodily harm.
An offence will be aggravated if occurring in a family violence context. This means the offender and victim need to be relatives, domestic or former domestic partners, or intimate or former intimate partners.
This will depend on a number of factors including, for example:
You may accept that you threatened the complainant, but:
Although there are many sentencing alternatives, it is likely that you will go to jail if you plead guilty or are found guilty. The maximum penalty for recklessly inflicting grievous bodily harm is 13 years imprisonment or 15 years imprisonment in aggravated circumstances, although these penalties are typically reserved for the most extreme offences.
The type of sentence you receive will ultimately depend on the facts of your case, your personal circumstances, criminal history, and a variety of other factors.
It is important that a criminal defence lawyer Canberra properly prepares and presents your case to minimise the risk of you going to jail, or to persuade the court to reduce the length of the jail sentence.
How does the court determine whether I intended to cause the complainant grievous bodily harm?
For an act to have been intentional, you need to have made the decision to bring about an act of a particular kind or particular result. This is a question for the judge or jury, who would consider all of the surrounding circumstances including what you did and said.
The Crimes Act 1900 (ACT) defines grievous bodily harm as “any permanent or serious disfiguring of the person”. In DPP v Smith [1961] AC 290 and Swan v R [2016] NSWCCA 79, the courts clarified that this refers simply to any injury deemed “really serious”. This includes a fractured eye socket, a broken bone, or a severe laceration to the face which requires stitching and will permanently leave a scar.
What is an aggravated offence?
An offence will be one aggravated if occurring in a family violence context. This means the offender and victim need to be relatives, domestic or former domestic partners, or intimate or former intimate partners.
This will depend on a number of factors including, for example:
You may accept that you assaulted the complainant, but:
Although there are many sentencing alternatives, it is likely that you will go to jail if you plead guilty or are found guilty. The maximum penalty for intentionally inflicting grievous bodily harm is 20 years imprisonment, or 25 years imprisonment in aggravated circumstances, although these penalties are typically reserved for the most extreme offences.
The type and severity of the sentence you receive will ultimately depend on the facts of your case, your personal circumstances, criminal history and many other factors.
It is important that a criminal defence lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to persuade the court to reduce the length of the jail sentence.
If you have been charged with a threat to kill, the prosecutor must prove that:
For an act to have been intentional, you need to have made the decision to bring about an act of a particular kind or particular result. This is a question for the jury, who would consider all of the surrounding circumstances including what you did and said.
Being ‘reckless as to whether or not that other person would fear that the threat would be carried out’ means that you realised that your threat may cause the complainant to fear that the threat would be carried out but continued regardless. This is a question for the judge or jury, who would consider all of the surrounding circumstances.
Whether you made a threat to another is a matter of fact and will therefore be decided by the judge or jury who will consider the surrounding circumstances, including what you said and did. It is not necessary to prove that the other person actually feared that the threat would be carried out and a person may be found guilty even if carrying out the threat is impossible.
To commit an offence under this section, the threat made must be clear and explicitly to kill the other person, usually requiring the word ‘kill’ or reference to ending the life of the recipient. In Luu v Cook [2008] ACTSC 54, the court determined that there must be “a declaration of an intention to end the life of the person” and “a threat that the person will be killed, not just injured (for instance, a threat to shoot a person would not by itself satisfy the requirement)”. For instance, merely threatening to stab or shoot another person will not be enough. However, in those circumstances you may be charged with the lesser offence of threatening to inflict grievous bodily harm.
In determining whether a reasonable person would have feared that the threat would have been carried out, the jury is to consider objectively whether an ordinary and reasonable person placed in the circumstances of the complainant, with all of the information available to the complainant at the time of the alleged offence would have feared that the threat would be carried out.
An offence will be aggravated if occurring in a family violence context. This means the offender and victim need to be relatives, domestic or former domestic partners, or intimate or former intimate partners.
This will depend on a number of factors including, for example:
You may accept that you threatened the complainant, but:
Although there are many sentencing alternatives, it is possible that you will go to jail if you plead guilty or are found guilty. The maximum penalty for threatening to kill is 10 years imprisonment or 13 years imprisonment in aggravated circumstances, although these penalties are typically reserved for the most extreme offences.
The type of sentence you receive will ultimately depend on the facts of your case, your personal circumstances, criminal history, and a variety of other factors.
It is important that a criminal defence lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to persuade the court to reduce the length of the jail sentence.
If you have been charged with blackmail, the prosecutor must prove that you:
Section 341 of the Criminal Code 2002 (ACT) states that a person makes an unwarranted demand with a menace of someone else if they make a demand with a menace of the other person, do not believe that they have reasonable grounds for making the demand, and do not reasonably believe that the use of menace is a proper means of reinforcing the demand. Accordingly, the demand need not be a demand for money or other property and it does not matter whether the menace relates to action to be taken by the person making the demand.
A menace includes an express or implied threat of action that is detrimental or unpleasant to someone else or general threat of detrimental or unpleasant action that is implied because the person making the demand is a public official. A threat against an individual is only a menace if the threat would be likely to cause an individual of normal stability and courage to act unwillingly or the threat would be likely to cause the individual to act unwillingly because of a particular vulnerability of which the maker of the threat is aware.
Section 18 of the Criminal Code 2002 (ACT) outlines that a person has intention in relation to a result if the person means to bring it about or is aware that it will happen in the ordinary course of events. This assessment will be a matter of fact and will be determined by the jury who will consider all of the surrounding circumstances including what you said or did.
Section 363D of the Criminal Code 2002 (ACT) states that ‘obtain’, for the purposes of this provision includes getting or keeping for oneself (directly or indirectly) or getting or keeping for another person (directly or indirectly). ‘Gain’ means either a gain in property, whether temporary or permanent, or a gain by way of the supply of services.
Whether your actions caused a loss will be a matter of fact and will be determined by the judge or jury who will consider all of the surrounding circumstances including what you said or did. The court will look to see whether there is a sufficient causal relationship or link between your conduct and the loss, and whether there are any intervening events that sufficiently break this chain of causation. Section 300 of the Criminal Code 2002 (ACT) defines ‘loss’ as meaning a loss in property, whether temporary or permanent, and includes not getting what one might get.
‘Public duty’ simply means any duty of a public official. A public official, for the purposes of this provision, is outlined in the same section as including amongst other things – territory public officials, members of the legislature, executive, or judiciary, and an officer or employee of the Commonwealth, a State, another Territory or a local government.
This will depend on a number of factors including, for example:
You may accept that you assaulted the complainant, but:
Although there are many sentencing alternatives, it is likely that you will go to jail if you plead guilty or are found guilty. The maximum penalty for blackmail is 1,400 penalty units, imprisonment for 14 years, or both. However these penalties are typically reserved for the most extreme offences.
The type of sentence you receive will ultimately depend on the facts of your case, your personal circumstances, criminal history, and a variety of other factors.
It is important that a criminal lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to persuade the court to reduce the length of the jail sentence.
If you have been charged with making a demand accompanied by threats, the prosecutor must prove that:
For an offence under subsection 2, the prosecutor must prove that:
Whether you made a threat to another person is a matter of fact and will therefore be decided by the judge or jury who will consider the surrounding circumstances, including what you said and did. It is not necessary to prove that the other person actually feared that the threat would be carried out and a person may be found guilty even if carrying out the threat is impossible.
Whether you made a demand or prevented or hindered a police officer is a matter of fact and will therefore be decided by the judge or jury who will consider the surrounding circumstances, including what you said and did. For the sections involving resisting arrest or hindering a police officer it is likely that the member of law enforcement would have activated their body worn camera and thus recorded the interaction. In these circumstances the court will analyse this footage to determine whether your conduct was sufficient to constitute an offence under this provision.
To constitute a threat to kill, the threat made must be clear and explicitly to kill the other person, usually requiring the word ‘kill’ or reference to ending the life of the recipient. In Luu v Cook [2008] ACTSC 54, the court determined that there must be “a declaration of an intention to end the life of the person” and “a threat that the person will be killed, not just injured (for instance, a threat to shoot a person would not by itself satisfy the requirement)”. For instance, merely threatening to stab or shoot another person will not be enough.
The Crimes Act 1900 (ACT) defines grievous bodily harm as “any permanent or serious disfiguring of the person”. In DPP v Smith [1961] AC 290 and Swan v R [2016] NSWCCA 79, the courts clarified that this refers simply to any injury deemed “really serious”. This may include a fractured eye socket, a broken bone, or a severe laceration to the face which requires stitching and will permanently leave a scar. To be found guilty of this offence, the prosecution must prove that you threatened to inflict an injury of this magnitude upon the recipient or any third person.
The Crimes Act does not outline circumstances where threatened conduct will be deemed to endanger the health, safety or physical wellbeing of a person. Thus, this will ultimately be a matter of judgment for the jury, who will consider all of the surrounding circumstances including the nature and severity of the threatened conduct.
Division 10.5 of the Crimes Act outlines the circumstances where apprehension or detention by police is lawful and permitted. This division also outlines the requisite procedure that police must abide by to ensure lawfulness and legality. The court will determine whether police had cause under this division and acted in accordance with these provisions when determining whether you or someone else was subject to lawful apprehension or detention.
Part 10 of the Crimes Act outlines the circumstances where a police officer may lawfully investigate any act or matter that is deemed to reasonably call for investigation by that officer. This part also outlines the requisite procedure that police must abide by to ensure lawfulness and legality. The court will determine whether police had acted in accordance with these provisions in determining whether they were lawfully investigating at the time of the threat.
An offence will be aggravated if occurring in a family violence context. This means the offender and victim need to be relatives, domestic or former domestic partners, or intimate or former intimate partners.
Whether you should plead guilty or not guilty will depend on a number of factors, including whether you accept that you made a demand of another person, or whether you accept that you accompanied this demand with a threat.
You may accept that you made a demand accompanied by a threat, but your defence lawyer may be able to persuade the prosecution to accept a plea of guilty to a less serious charge such as threat to inflict grievous bodily harm.
Alternatively, you may accept that you made a demand accompanied by a threat but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the police facts.
It is almost certain that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
It is likely that you will go to jail. The maximum penalty for this offence when the threat is to kill or inflict grievous bodily harm is 20 years imprisonment or 25 years in aggravated circumstances. Alternatively, the maximum penalty for this offence when the threat is to endanger the health, safety or physical wellbeing of a person is 10 years imprisonment or 13 years imprisonment in aggravated circumstances. However, the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
It is important that a criminal lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to reduce the length of the jail sentence.
If you have been charged with forcible confinement, the prosecutor must prove that:
Forcible confinement or imprisonment occurs when an individual restricts another person’s movement without legal authority, that person’s consent, or legal justification. The person’s freedom must be unlawfully restricted to the extent that they are unable to move from one place to another or leave a particular area. The confinement must be total and not merely a partial obstruction and there must be no reasonable means of escape available to the person. Actual physical restraint is not required to prove this offence, and there need not be restraint through physical force or a physical barrier. Accordingly, the threat of force may be sufficient to constitute forcible confinement or imprisonment.
There are a variety of circumstances when the confinement or imprisonment of another person will be deemed to have been lawful. These include:
Whether you should plead guilty or not guilty will depend on a number of factors, including whether you accept that you imprisoned or confined another person and whether you accept that you did not have a lawful excuse or justification for doing so.
You may accept that you committed the offence but disagree with part or all of what police say happened. In these circumstances, your criminal defence lawyer may be able to negotiate with the prosecutor to change the statement of facts for sentencing.
It is very likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
A conviction is an entry on your criminal record (also referred to as your antecedents). A conviction may pose a hurdle, or a bar, in relation to current or future employment, travel, adoption, residency, applications for citizenship or your ability to attain or hold a certain licence.
Although there are many sentencing alternatives, it is possible that you will go to jail if you plead guilty or are found guilty. The maximum penalty for forcible confinement is 10 years imprisonment. However, the maximum penalty is reserved for the most extreme offences. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to persuade the court to reduce the length of the jail sentence.
If you have been charged with kidnapping, the prosecutor must prove that:
For an offence under subsection (b), the prosecutor must prove that:
For an act to have been intentional, you need to have made the decision to bring about an act of a particular kind or particular result. This is a question for the judge or jury, who would consider all of the surrounding circumstances including what you did and said.
None of these terms are defined explicitly within the provision or act. The act of taking away a person is given its ordinary and natural meaning and refers to the conduct most commonly associated with kidnapping – physically moving someone to another location through force. The act of enticing or leading a person away is more commonly associated with children and refers to the offering of a benefit or potential reward for coming with or following you to another location. Whether you led, took, or enticed a person away is a decision for the judge or jury, who will consider all of the surrounding circumstances including what you did and said to the victim.
Unlawful detainment occurs when an individual restricts another person’s movement without legal authority, that person’s consent, or legal justification. The person’s freedom must be unlawfully restricted to the extent that they are unable to move from one place to another or leave a particular area. The confinement must be total and not merely a partial obstruction and there must be no reasonable means of escape available to the person. Actual physical restraint is not required to prove this offence, and there need not be restraint through physical force or a physical barrier. The threat of force is sufficient to constitute forcible confinement or imprisonment.
Holding a person for ransom means that you demand a sum of money to release the kidnapped individual. Alternatively, holding the person for any other advantage may mean that their release may be contingent on some other demand made or the advantage is accrued through the detainment of the person itself, such as forced servitude. Ultimately this is a decision for the Jury, who will consider all of the surrounding circumstances including what you did and said to the victim, their family and friends, and/or members of law enforcement.
Whether you caused the grievous bodily harm suffered by another person is a matter of fact and will therefore be determined by either the judge or jury. To prove this element, there must be a sufficiently direct link between your conduct and the harm inflicted upon the other person and no discernable alternative intervening cause or factor. This assessment is ultimately a matter of causation and will be examined with consideration of all of the surrounding circumstances including what you did and said.
The Crimes Act 1900 (ACT) defines grievous bodily harm as “any permanent or serious disfiguring of the person”. In DPP v Smith [1961] AC 290 and Swan v R [2016] NSWCCA 79, the courts clarified that this refers simply to any injury deemed “really serious”. This includes a fractured eye socket, a broken bone, or a severe laceration to the face which requires stitching and will permanently leave a scar.
This will depend on a number of factors including, for example:
You may accept that you kidnapped the complainant, but:
Although there are many sentencing alternatives, it is very likely that you will go to jail if you plead guilty or are found guilty. The maximum penalty for kidnapping is 15 years imprisonment or 20 years imprisonment if that other person suffers any grievous bodily harm while being led, taken or enticed away, or detained. However, these penalties are typically reserved for the most extreme offences.
The type and severity of the sentence you receive will ultimately depend on the facts of your case, your personal circumstances, criminal history and many other factors.
It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to persuade the court to reduce the length of the jail sentence.
If you have been charged with wounding, the prosecutor must prove that:
For an act to have been intentional, you need to have made the decision to bring about an act of a particular kind or particular result. This is a question for the magistrate, judge or jury, who would consider all of the surrounding circumstances including what you did and said.
There are particular circumstances where inflicting harm upon another person will be deemed to have been lawful. For example, using an offensive weapon against another person may be deemed lawful in the context of proportional self-defence. Alternatively, such conduct may be deemed lawful in the context of consensual combat sports, such as fencing or mixed martial arts.
Section 4 of the Crimes Act 1900 (ACT) defines an offensive weapon as either a dangerous weapon, anything that is made or adapted for offensive purposes, or anything that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm. Whether the instrument or object you used falls within this definition is ultimately a matter of interpretation for the judge, magistrate or jury.
The Crimes Act does not outline circumstances where a weapon will be deemed likely to endanger human life. This will ultimately be a matter of judgment for the court, who will consider all of the surrounding circumstances and the type of instrument or object used.
Section 4 of the Crimes Act 1900 (ACT) defines grievous bodily harm as “any permanent or serious disfiguring of the person”. In DPP v Smith [1961] AC 290 and Swan v R [2016] NSWCCA 79, the courts clarified that this refers simply to any injury deemed “really serious”. This includes a fractured eye socket, a broken bone, or a severe laceration to the face which requires stitching and will permanently leave a scar. To be found guilty of this offence, the prosecution must prove that recklessly inflicted an injury of this magnitude upon another person.
Division 10.5 of the Crimes Act outlines the circumstances where apprehension or detention by police is lawful and permitted. This division also outlines the requisite procedure that police must abide by to ensure lawfulness and legality. The court will determine whether police had cause under this division and acted in accordance with these provisions when determining whether you or someone else was subject to lawful apprehension or detention.
Part 10 of the Crimes Act outlines the circumstances where a police officer may lawfully investigate any act or matter that is deemed to reasonably call for investigation by that officer. This part also outlines the requisite procedure that police must abide by to ensure lawfulness and legality. The court will determine whether police had acted in accordance with these provisions in determining whether they were lawfully investigating at the time of the threat.
An offence will be aggravated if occurring in a family violence context. This means the offender and victim need to be relatives, domestic or former domestic partners, or intimate or former intimate partners.
This will depend on a number of factors including, for example:
You may accept that you wounded another person, but:
Although there are many sentencing alternatives, there is a real prospect that you will go to jail if you plead guilty or are found guilty. The maximum penalty for this offence is 10 years imprisonment, or 13 years imprisonment in aggravated circumstances. However, these penalties are typically reserved for the most extreme offences and the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to persuade the court to reduce the length of the jail sentence.
If you have been charged with a threat to inflict grievous bodily harm, the prosecutor must prove that:
For an act to have been intentional, you need to have made the decision to bring about an act of a particular kind or particular result. This is a question for the court, who would consider all of the surrounding circumstances including what you did and said.
Being ‘reckless as to whether or not that other person would fear that the threat would be carried out’ means that you realised that your threat may cause the complainant to fear that the threat would be carried out but continued regardless. This is a question for the court, who would consider all of the surrounding circumstances.
Whether you made a threat to another is a matter of fact and will therefore be decided by the magistrate, judge or jury who will consider the surrounding circumstances, including what you said and did. It is not necessary to prove that the other person actually feared that the threat would be carried out and a person may be found guilty even if carrying out the threat is impossible.
The Crimes Act 1900 (ACT) defines grievous bodily harm as “any permanent or serious disfiguring of the person”. In DPP v Smith [1961] AC 290 and Swan v R [2016] NSWCCA 79, the courts clarified that this refers simply to any injury deemed “really serious”. This includes a fractured eye socket, a broken bone, or a severe laceration to the face which requires stitching and will permanently leave a scar. To be found guilty of this offence, the prosecution must prove that you threatened to inflict an injury of this magnitude upon the recipient or any third person. Threatening to inflict an injury that does not amount to grievous bodily harm may result in you being charged with the lesser offence of common assault.
In determining whether a reasonable person would have feared that the threat would have been carried out, the judge, magistrate or jury is to consider objectively whether an ordinary and reasonable person placed in the circumstances of the complainant, with all of the information available to the complainant at the time of the alleged offence would have feared that the threat would be carried out.
There are particular circumstances were threatening to inflict grievous bodily harm may be lawful. For example, if the threat is made in self-defence or in the process of preventing or deterring another crime.
An offence will be aggravated if occurring in a family violence context. This means the offender and victim need to be relatives, domestic or former domestic partners, or intimate or former intimate partners.
This will depend on a number of factors including, for example:
You may accept that you threatened the complainant, but:
Although there are many sentencing alternatives, it is possible that you will go to jail if you plead guilty or are found guilty. The maximum penalty for threatening to inflict grievous bodily harm is 5 years imprisonment or 7 years imprisonment in aggravated circumstances, although these penalties are typically reserved for the most extreme offences.
The type of sentence you receive will ultimately depend on the facts of your case, your personal circumstances, criminal history, and a variety of other factors.
It is important that a criminal defence lawyer properly prepares and presents your case to minimise the risk of you going to jail, or to persuade the court to reduce the length of the jail sentence.
Hugo Law Group is a law firm that is focused on protecting and defending your rights. Drawing on decades of experience, our team of criminal lawyers will guide you through the legal process, providing comprehensive, honest and strategic advice – qualities that give us our renowned reputation.
Whether you want to plead not guilty, you are looking to secure the best possible sentence, or a loved one wants to apply for bail, it is essential to have an experienced team of criminal defence lawyers in your corner.
Seeking comprehensive and practical advice at an early stage will best ensure your rights and interests are protected. Our lawyers will properly prepare and present your case to assist you in getting the best possible outcome.
At Hugo Law Group, we will clearly explain what your rights and obligations are so that you can make informed decisions about how to deal with the police and the court process.
Even if you have not yet been charged with a criminal offence, you should seek advice from a lawyer at an early stage to ensure that your rights and interests are protected.
Hugo Law Group is the market leader in criminal defence law, providing exceptional representation to people facing serious criminal charges.
As leaders in criminal defence, we know that every story has two sides. We defend yours.
Get in contact with us today or feel free to call us at 02 9696 1361 (Sydney), 02 5104 9640 (Canberra), 08 6255 6909 (Perth), or 07 5552 1902 (Northern NSW) and find out how we can help you.