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Intentionally Causing Serious Injury

Intentionally causing serious injury

A person who, without lawful excuse, intentionally causes serious injury to another person is guilty of an indictable offence punishable by up to 20 years imprisonment.[1]

The elements of the offence

Intentionally causing serious injury, as created by s 16 of the Crimes Act 1958 (Vic) (“the Act”), has the following four elements:

  • The complainant suffered a ‘serious injury’;
  • The accused caused the complainant’s serious injury;
  • The accused intended to cause serious injury; and
  • The accused acted without lawful justification or excuse.

The prosecution must establish each of these four elements beyond a reasonable doubt for an accused to be convicted.

Intentionally Causing Serious Injury Video

Element 1: The complainant suffered a ‘serious injury’

The definition of ‘serious injury’ in the Act was amended in 2013 with the new definition applying to offences committed after 1 July 2013.[2]

Serious injury after 1 July 2013

For offences committed after 1 July 2013, ‘injury’ means physical injury or harm to mental health, whether temporary or permanent and ‘serious injury’ means an injury (including the cumulative effect of more than one injury) that endangers life or is substantial and protracted.[3] ‘Serious injury’ also means the destruction, other than in the course of a medical procedure, of the foetus of a pregnant woman, whether or not the woman suffers any other harm.[4]

‘Physical injury’ includes unconsciousness, disfigurement, substantial pain, infection with a disease and an impairment of bodily function.[5] ‘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.[6]

The new definition of ‘serious injury’ now means that when a jury has determined that an injury endangers life, is substantial and protracted, or involves the destruction of a foetus, there is no separate judgment made about whether the injury is a ‘serious injury’ as had been the case previously.

Serious injury before 1 July 2013

For offences committed before 1 July 2013 ‘serious injury’ is not defined and it is for the jury to determine, as a question of fact, whether the complainant’s injuries are sufficient to qualify as ‘serious’.[7]

Assessing injury

The complainant’s age, gender and state of health may all be relevant when assessing whether the injury is serious. An injury that is inflicted on a frail person may be more serious than the same injury inflicted on a person in good health.[8] A serious injury may also result from a combination of injuries.

Element 2: The accused caused the complainant’s serious injury

For an accused’s conduct to have ‘caused’ the complainant’s serious injury, it must have ‘contributed significantly’ or been a ‘substantial and operating cause’ of it.[9]

Element 3: The accused intended to cause serious injury

The prosecution must establish that the accused intended to cause serious injury. It is insufficient that the accused intended to do the act that injured the complainant.[10] It is also insufficient for the accused to have only intended to cause injury. The accused must have intended to cause serious injury.

The accused does need to have intended to have caused the precise injury that he or she ultimately caused. It is only necessary that the accused intended to cause an injury that is a serious injury and actually causes a serious injury.[11] The nature of the accused’s acts may provide evidence of his or her intention.[12]

Intentionally causing serious injury LawyersElement 4: The accused acted without lawful justification or excuse

The prosecution must disprove any defences which are open on the evidence.[13]

Self-defence

People can use reasonable force to defend themselves from unlawful violence, as long as they believe on reasonable grounds that what they are doing is necessary in self-defence.[14] There are two elements to establishing self-defence:

  • The accused must have believed at the time that he or she committed the relevant act that what he or she was doing was necessary; and
  • That belief must have been based on reasonable grounds.

Once self-defence is raised by an accused, the onus is on the prosecution to disprove at least one of these two elements beyond reasonable doubt or the accused should be acquitted.[15]

Intoxication and self defence

Intoxication has been found to be relevant to whether the accused believed at the time that he or she committed the alleged act that what he or she was doing was necessary. If the accused was intoxicated at the time he or she committed the relevant acts, the jury can take this into account when determining whether he or she believed that the use of force was necessary. It is currently unclear whether intoxication is also relevant to the second element.

Automatism

Automatism refers to acts that are committed without volition. It requires the total absence of control and direction by an accused. Impaired, reduced or partial control is not sufficient. The key issue is lack of the exercise of will.[16] Automatism may result from a number of ‘diseases of the mind including schizophrenia, being in a dissociative state, and epilepsy.

Duress

An act is committed under duress if it is committed due to a threat of physical harm if the act is not done.[17] To have acted under duress, an accused must have been so constrained that he or she became a mere innocent of the crime.[18]Duress is a complete defence.[19]

Mental impairment

The defence of mental impairment is created by s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. An accused has a defence to what would otherwise be a criminal act if, at the time he or she committed the act, he or she was suffering from a mental impairment which meant that he or she did not know the nature and quality of what they were doing, or did not know their conduct was wrong. Pursuant to s 20(2) of that Act, if the defence of mental impairment is established, the accused must be found not guilty.

Other defences

Aside from self-defence, automatism, duress and mental impairment, a number of offence-specific defences negating specific elements of the offence can apply. As has been discussed, the prosecution must establish of the four elements of the offence beyond a reasonable doubt and an accused must be found not guilty if the prosecution is unable to do so. Offence-specific defences may include:

The injury suffered by the complainant is not a serious injury

This would negate the first element of the offence but may result in a guilty verdict for the alternative less serious charge of intentionally causing injury.

The accused did not cause the complainant’s serious injury

This would negate the second element of the offence. For an accused’s conduct to have ‘caused’ the complainant’s serious injury, it must have ‘contributed significantly’ or been a ‘substantial and operating cause’ of it.

For example, a defence could be that another act or event occurred between the time of the accused’s act and the time the complainant suffered a serious injury. In such a case, an accused remains will only be liable if his or her conduct is a substantial operating cause of the serious injury when it occurs.

Difficulties in causation may also arise if there is evidence that the victim’s own actions were a cause of the serious injury. For example, if the victim injured him or herself while attempting to get away from the accused. The accused’s actions will only be considered to be a legal cause of the result if the victim’s acts were a ‘natural consequence’ of those actions.[20]

The accused did not intend to cause serious injury

This would negate the third element of the offence. Intoxication is an issue that often arises in relation to this offence and may affect the accused’s capacity to form the relevant intention. An accused must be found not guilty if, due to intoxication, he or she did not intend to do the physical act charged or did not intend to attain the result required by the offence.[21] The prosecution must prove that the accused acted with the requisite intent despite his or her level of intoxication.[22]

However, the mere fact that the accused acted differently than he or she would have behaved when sober does not enliven this defence and a drunken intent will still satisfy this element of the offence.

Causing serious injury intentionallyIn a trial for an alleged offence occurring after 1 July 2013, the judge will ask the jury:

  • Did the accused cause the complainant’s serious injury?
    The jury will be asked to consider whether the accused’s actions were a substantial or significant cause of the complainant’s serious injury.
    If yes, then the jury will be asked to consider question 3
    If no, then the accused is not guilty
  • Did the complainant suffer a serious injury?
    If yes, then the jury will be asked to consider question 2
    If no, then the accused is not guilty
  • Did the accused intend to cause serious injury to the complainant?
    The jury will be told that it is not sufficient for the accused to have only intended to cause injury.
    If yes, then the jury will be asked to consider 4
    If no, then the accused is not guilty
  • Did the accused act without lawful justification or excuse?
    If yes, then the accused is guilty
    If no, then the accused is not guilty

Sentencing statistics

The most recent Sentencing Snapshot released by the Sentencing Council of Victoria covers the period 2006 to 2011.[23] Over the five year period of the Sentencing Snapshot, 596 people received sentences in which intentionally causing serious injury was the principal offences. 94.3% of those sentenced were men.

Over the five year period, 65% of people sentenced for causing serious injury intentionally received a period of imprisonment, 10% received a wholly suspended sentence of imprisonment, and 10% received a youth justice centre order.[24] Sentences of imprisonment were most likely to be given to people aged 30 to 34 years old (85% of people in this age group) while sentences of imprisonment were least common for those aged under 20 years (29% of people in this age group).[25] Imprisonment terms ranged from 5 days to 15 years, while the median length of imprisonment was four years (meaning that half of the imprisonment terms were shorted than four years and half were longer). The most common length of imprisonment imposed was between three and four years.[26]

The total effective sentence in a case with multiple charges is the sentence that results from the court ordering the individual sentences for each charge to be served concurrently or cumulatively. The most common total effective sentence where the principal offence was intentionally causing serious injury was four years to five years. The median total effective length of imprisonment was four years and six months imprisonment (meaning that half of the total effective sentence lengths were below four years and six months and half were above).[27]

Under s 11(4) of the Sentencing Act 1991 (Vic), if a court sentences an offender to imprisonment in respect of more than one offence, the non-parole period set by the court must be in respect of the total effective sentence of imprisonment that the offender is liable to serve. For this reason, the non-parole period will be longer than the individual principal sentence for rape. With this in mind, the average length of non-parole periods ranged from two years and seven months in 2008-2009 to three years and seven months in 2009-2010.

The most common sentence of imprisonment was four years with a non-parole period of two years.[28]

To view sentencing decisions by Victorian County Courts for the charge of Intentionally Causing Serious Injury, visit this page.

Case examples – results from our firm


[1] Section 16 of the Act.
[2] The definition was amended by the Crimes Amendment (Gross Violence Offences) Act 2013 with the new definition applying only after the commencement of that Act.
[3] See definition in s 15 of the Act.
[4] Part (b) of the definition in s 15 of the Act.
[5] See definition in s 15 of the Act.
[6] See definition in s 15 of the Act.
[7] R v Ferrari [2002] VSCA 186.
[8] R v Welsh & Flynn Vic CCA 16/10/1987.
[9] R v Stein [2007] VSCA 300; R v Withers [2009] VSCA 306.
[10] R v Westaway (1991) 52 A Crim R 336.
[11] Royall v R (1991) 172 CLR 378.
[12] R v McKnoulty (1995) 77 A Crim R 333.
[13] R v Roach [1988] VR 665.
[14] Zecevic v Director of Public Prosecutions (1987) 162 CLR 645.
[15] Ibid.
[16] Ryan v R (1967) 121 CLR 205 per Barwick CJ; R v Falconer (1990) 171 CLR 30.
[17] R v Dawson [1978] VR 536.
[18] Ibid..
[19] R v Japaljarri (2002) 134 A Crim R 261.
[20] Royall v R (1991) 172 CLR 378.
[21] Ibid.
[22] R v O’Connor (1979) 146 CLR 64.
[23] See Sentencing Snapshot 125 released in June 2012.
[24] Ibid, p.2.
[25] Ibid, p.4.
[26] Ibid, p.5.
[27] Ibid, p.6.
[28] Ibid, p.8.

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