The offence of stabbing in NSW

co-authored by: Isabel Strahan

KEY TAKE-OUTS:

• There are numerous offences which may arise out of a ‘stabbing’.
• The charges vary according to the seriousness of the injuries that were sustained and whether the accused had the intent to cause harm or were simply reckless in their conduct.
• Consequently, the maximum penalty for each charge also varies.
• It is incredibly important to gain legal advice in case a legal defence is available to you and in your circumstances.

---

In recent news, three men have been charged with murder, aggravated robbery with wounding causing grievous bodily harm, attempted robbery in company, aggravated enter dwelling with intent and drive conveyance without the consent of the owner.

The above-mentioned charges follow from the stabbing of 51-year-old Michael Kerr on 4 January 2022 after a robbery in Nowra turned fatal.

The numerous charges that relate to a stabbing offence can be incredibly difficult to navigate. Each charge is separated by the harm caused and whether the accused has the intent to cause harm or were reckless in their conduct. Consequently, the relating penalties will also vary depending on the charges laid.

In this article, we will attempt to break down the various charges that could arise out of a stabbing and their respective penalties.

Reckless Wounding

The offence of reckless wounding sits at the lower end of the scale of seriousness in relation to stabbings. Despite this, the offence is still an extremely serious and holds a maximum penalty of 7 years imprisonment. If ‘reckless wounding’ occurs in the company of another person, the accused could face a maximum of 10 years in prison.

Pursuant to section 35 of the Crimes Act 1900, a person will be found guilty of this offence if they wound another and were reckless as to causing actual bodily harm.

Wounding is held to involve the breaking or cutting of the interior layer of the skin, called the dermis. However, someone may be charged with reckless wounding even if the harm was not caused by a weapon, it can include minor injuries like a split lip.

The term ‘actual bodily harm’ describes injuries that are more than merely transient or trifling but may interfere with the health and comfort of the person. For example, scratches, bruises, and cuts amount to actual bodily harm so long as they don’t cause permanent damage.

In relation to the ‘recklessness’ element of this offence, the prosecution must prove that the accused foresaw a possibility that their actions would result in the infliction of harm, as held in the judgement of Chen v R [2013] NSWCCA 116.

Wounding or Grievous Bodily Harm with Intent

Differing from the offence of ‘reckless wounding’ wounding causing grievous bodily harm with intent is pertained to section 33 of the Crimes Act 1900.

Section 33 states that if a person is found to have wounded or caused grievous bodily harm to another, and the accused had to intent to do so, they will be found guilty of this offence and may face a maximum penalty of 25 years imprisonment.

As above-mentioned, the definition of what constitutes wounding remains constant across these offences. Therefore, it is not merely enough to have broken the exterior layer of skin, the harm must at least have broken the interior dermis layer.

However, section 33 of the Crimes Act 1900 also incorporates the idea of ‘grievous bodily harm’ which is more serious in nature. According to the caselaw found in Swan v The Queen, grievous bodily harm involves ‘really serious bodily injuries’ and can extend to any permanent or serious disfigurement or injuries that may require ongoing treatment. For example, a stabbing which hits an organ and causes life- threatening injuries would satisfy this element.

In addition to the higher threshold of grievous bodily harm, the prosecution must prove beyond reasonable doubt that the accused had the intent to cause harm. In doing so, the prosecution may make inferences which are deduced from the accused conduct to prove that they had the intent to harm.

The main defences available for this charge include the following:

• The injuries sustained by the victim do not amount to the grievous bodily harm and therefore, should be dealt with under a different charge;
• The accused was acting in self-defence, or
• The accused was acting under duress.

Murder

In instances where a stabbing has caused the death of another person, alike in the circumstances of Michael Kerr, the accused may be charged with murder under section 18 of the Crimes Act 1900.

At the very highest end of seriousness, the prosecution must prove the following elements beyond reasonable doubt:

• The accused caused the death of another person;
• By a voluntary act or omission, and
• Had the intent to kill or cause grievous bodily harm, or
• Did so with a reckless indifference to human life.

If someone is found guilty of committing murder, they may face the maximum penalty of life in prison.

Conclusion

As above mentioned, the various charges that may arise out of a ‘stabbing’ can be incredibly difficult to navigate. Defending any of the charges requires experience and expertise relating to the elements of each offence and the processes and procedures within the courtroom.

The Criminal Law team at Coutts are well equipped to guide you and are dedicated to achieving justice.

Book in an initial consultation with one of our lawyers to understand whether a defence may be available to you in your circumstances.

---