Recklessly Cause Injury

– section 18 of Crimes Act 1958
Fist Punching SomethingRecklessly cause injury is a charge that is often dealt with in the Magistrates’ Court. The charge is generally laid in situations where a person recklessly injures another and there has not been any serious injury caused. In this instance, the Police must show that the accused caused injury to another person which was reckless and that the accused had no lawful excuse to do so.
Jurisdictional Limits

Recklessly cause injury is an indictable offence, which means that it may be heard in the higher courts; however it can also be tried summarily in the Magistrates’ Court. The seriousness of the circumstances surrounding the charge will determine the jurisdiction where the matter is to be heard.

Generally, a stand-alone charge of recklessly cause injury is heard in the Magistrates’ Court. More aggravated offending would see it before the higher courts, particularly in situations where there is a primary offence of serious nature to which it attaches as a secondary offence. The circumstances surrounding your charges will determine which avenue is appropriate.

In terms of the sentencing range available, the Act stipulates that the offence carries a 10 year term of imprisonment as the highest possible sentence. However the maximum term of imprisonment that can be imposed in the Magistrates’ Court for a single offence is two years. Further, the maximum aggregate total sentence that can be imposed is five years.1

This offence is a medium – high ranging violent offence which does not generally carry a goal term when guilt is established in the Magistrates’ Court, provided it is a first offence that is not particularly gruesome.

The Statutory Provision for Recklessly Cause Injury

This offence is governed by section 18 of the Crimes Act 1958 (‘the Act’). It reads as follows:

  1. A person who, without lawful excuse, intentionally or recklessly causes injury to another person is guilty of an indictable offence.
The Elements

There are four elements that constitute the offence of Recklessly Cause Injury:

  1. The complainant suffered an “injury”;
    Injury is defined in section 15 of the Act as physical injury or harm to mental health whether temporary or permanent.Examples of physical injury in the Act includes unconsciousness, disfigurement, substantial pain, infection with a disease and an impairment of a bodily function.Examples of harm to mental health in the Act includes psychological harm but does not include an emotional reaction such as distress, grief, fear or anger unless it results in psychological harm.
“Can they prove that the Complainant suffered an injury?”
  1. The accused caused the complainant’s injury;
    The injury of the complainant needs to have been caused by the accused. This element will be satisfied even if the injury was caused indirectly.2
  2. The accused was reckless about causing the injury; and
    The accused must have been aware, when he or she committed the relevant conduct, that it would probably cause injury. It is not sufficient for the accused to have been aware that injury was merely possible or might result.3 It is also not sufficient that a reasonable person in the accused’s circumstances would have realised that their conduct would be likely to injure the complainant.4
  3. The accused acted without lawful justification or excuse.
    The Prosecution must disprove any defences the accused seeks to rely on.

 
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In a trial for Recklessly Cause Injury, the questions a judge will ask the jury to consider are:

  1. Did the complainant suffer an injury?
    (Consider – Injury means physical injury or harm to mental health, whether temporary or permanent
    Consider – Physical injury includes unconsciousness, disfigurement, substantial pain, infection with a disease, and an impairment of bodily function
    Consider – Harm to mental health includes psychological harm but does not include an emotional reaction such as distress, grief, fear, or anger unless it results in psychological harm.)
    If yes, then go to 2.
    If no, then the accused is not guilty of recklessly cause injury.
  2. Did the accused cause the complainant’s injury?
    (Consider – Were the accused’s actions a substantial or significant cause of the complainant’s injury?)
    If yes, then go to 3.
    If no, then the accused is not guilty of recklessly cause injury.
  3. Was the accused aware that his/her conduct would probably injure the complainant?
    If yes, then go to 4.
    If no, then the accused is not guilty of recklessly cause injury.
  4. Did the accused act without lawful justification or excuse?
    If yes, then the accused is guilty of recklessly cause injury (as long as you have also answered Yes to questions 1, 2 and 3).
Possible Defences to Recklessly Cause Injury

There are often arguments about the intention of the accused at element 3. That is an issue of what injury was foreseen when the fight occurred. Other defences can be ones such as a factual dispute about who was responsible for the fight, lack of intent, wrongful identification, mental impairment, necessity, or self-defence. The availability of a defence of self-defence turns on whether the force used was reasonable and proportionate in all the circumstances.

Sentencing in the higher courts

There were 202 cases (554 charges) of Recklessly Cause Injury that were heard in the higher courts of Victoria from 1 July 2011 to 30 June 2016. The majority of these cases resulted in Community Correction Order (46.5%) and Imprisonment (29.7%). Other sentences imposed were:

  • Fine – 7.4%
  • Wholly Suspended Sentence – 5.4%
  • Partially Suspended Sentence – 5%
  • Community-Based Order – 2%
  • Adjourned Undertaking/Discharge/Dismissal – 2%
  • Youth Justice Centre Order – 1.5%
  • Other – 0.5%

The longest term of imprisonment for Recklessly Cause Injury between 1 July 2011 to 30 June 2016 was between 2 and 3 years, however this was imposed in only 4% of the charges that led to imprisonment. The majority of offenders were sentenced to less than a year (54.5%).

Of those who were sentenced to a Community Correction Order (CCO), 40.1% were for a term that was between 1 and 2 years. This was the most frequently imposed of all CCO terms. The longest CCO term imposed was between 4 and 5 years at 0.7% frequency.5

Please note that suspended sentences were abolished in the higher courts for all offences committed on or after 1 September 2013.6

Sentencing in the Magistrates’ Courts

In the Magistrates’ Courts, 8,438 cases (9,291 charges) of Recklessly Cause Injury were heard from 1 July 2013 to 30 June 2016. These resulted in the following sentences:

Imprisonment

  • Community Correction Order (CCO) – 31.6%
  • Fine – 22.2%
  • Imprisonment – 19.6%
  • Adjourned Undertaking/Discharge/Dismissal – 17.1%
  • Wholly Suspended Sentence – 7.3%
  • Partially Suspended Sentence – 1.6%
  • Youth Justice Centre Order – 0.6%

The majority of CCOs imposed fell under the “12 < 18 months” category (52.9%, non-aggregate). The longest CCO imposed was more than 24 months, however this was applied in only 6.1% of the charges.

In terms of financial penalties, the heaviest fines imposed were between $10,000 and $20,000 (aggregate, imposed in 0.1% of the charges that led to fines). The majority of fines were between $1,000 and $2,000 (18.8% for aggregate and 23.0% for non-aggregate).7

Please note that suspended sentences were abolished in the Magistrates’ Court for all offences committed on or after 1 September 2014.8

Check out some of the criminal cases we’ve defended in court involving the charge of Recklessly Cause Injury:

 



[1] Sentencing on Magi Court website – https://www.magistratescourt.vic.gov.au/jurisdictions/criminal-and-traffic/criminal-proceedings/sentencing.
[2] R v Salisbury [1976] VR 452.
[3] R v Crabbe (1985) 156 CLR 464 cited in Criminal Charge Book, 7.4.2.3.1 – Bench Notes: Recklessly Cause Injury (1 July 2013) Judicial College of Victoria: <http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#46286.htm>.
[4] R v Nuri [1990] VSCA 72 cited in Criminal Charge Book, 7.4.2.3.1 – Bench Notes: Recklessly Cause Injury (1 July 2013) Judicial College of Victoria: <http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#46286.htm>.
[5] Sentencing Advisory Council. “SACStat Higher Courts – Crimes Act 1958 (Vic): s 18 – causing injury recklessly.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_6231_18.2.html (accessed February 11, 2019).
[6] Sentencing Advisory Council. “Suspended Sentence.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence (accessed February 11, 2019).
[7] Sentencing Advisory Council. “SAC Statistics – Crimes Act 1958 (Vic): s 18 – causing injury recklessly.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/6231_18.2.html (accessed February 11, 2019).
[8] Sentencing Advisory Council. “Suspended Sentence.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence (accessed February 11, 2019).