Being charged with an assault offence can have serious consequences, particularly where the allegation involves an injury to another person.
In New South Wales, the law distinguishes between different levels of injury. Two terms that commonly arise in assault matters are actual bodily harm and grievous bodily harm.
Although both involve physical injury, GBH generally refers to a more serious level of harm. The distinction can affect the offence charged, the minimum penalty available to the court and the way the prosecution must prove its case.
If you have been charged with an assault offence involving ABH or GBH, the circumstances of the alleged incident and the evidence available will be important in determining how the matter should be defended.
What is actual bodily harm?
Actual bodily harm is commonly associated with assault occasioning actual bodily harm under section 59 of the Crimes Act 1900 (NSW).
Section 59 provides that a person who assaults another person and thereby occasions actual bodily harm can be sentenced to up to 5 years imprisonment. When the offence is committed in company with another person or persons, the maximum penalty increases to 7 years imprisonment.
Actual bodily harm is more than a trivial or merely transient injury. It can include injuries such as:
- Bruising,
- Swelling,
- Cuts and lacerations,
- Black eyes,
- Scratches,
- A bloody nose, or
- Other physical injuries caused by an assault.
For example, if a person punches another person in the face, causing significant bruising and swelling, the circumstances may support an allegation of assault occasioning actual bodily harm.
The injury and the circumstances in which it was caused will need to be considered when determining whether the elements of the offence have been established.
What is grievous bodily harm?
Grievous bodily harm concerns more serious physical injury. GBH can include injuries such as:
- Serious fracture,
- Significant internal injuries,
- Serious wounds,
- Permanent or substantial disfigurement,
- Serious loss of bodily function, or
- Other injuries of a serious nature.
The seriousness of the injury is important, but the exact offence charged also depends on the circumstances of the alleged conduct and the accused person’s state of mind.
For example, section 33 of the Crimes Act 1900 (NSW) creates an offence where a person wounds another person or causes GBH with the intent to cause grievous bodily harm. The maximum penalty is 25 years’ imprisonment.
The maximum penalty for reckless GBH is 10 years’ imprisonment, increasing to 14 years where the offence is committed in company.
ABH vs GBH: What is the difference?
The simplest way to understand the distinction is that ABH involves bodily harm that is more than minor or trivial, while GBH involves substantially more serious injury.
However, the distinction is not simply about how bad an injury looks.
The prosecutor must prove the elements of the offence charged. This can include proving what the accused person did, what injury resulted and, depending on the offence, the accused person’s intention or recklessness.
The difference can therefore involve both:
- The nature and seriousness of the injury; and
- The mental element required for the particular offence.
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