Recklessly Causing Serious Injury

– section 17 of the Crimes Act 1958
Serious Injury
This charge is laid in situations where a person recklessly causes serious injury to another person without lawful excuse.
Examples of Recklessly Causing Serious Injury
  • A person pushes another through a first story glass window. The victim is lacerated as they pass through the window and breaks their leg due to the fall.
  • A person throws a kitchen knife at another person during a heated argument. The kitchen knife cuts the victim’s neck, causing them to bleed profusely.
  • A customer gets into an argument with a store attendant. The argument escalates, and the customer punches the store attendant multiple times to his face. The victim requires surgery and is left with permanently impaired vision.
Questions in cases like this
  • Is there an injury?
  • If there is an injury, is it a serious injury?
  • Did the accused cause the injury?
  • If the accused caused the injury, was the accused reckless when they caused the injury?
What are some of the possible defences to Recklessly Causing Serious Injury?

The most common defence to this charge that some element of the offence is not made out. For example:

  • There is no injury;
  • The accused did not cause the injury;
  • Any injury that the victim suffered does not qualify as a serious injury;
  • The accused was not acting recklessly when they caused the injury.

Other defences to this charge include duress, mental impairment and self-defence.

Deciding on whether to plead guilty or not has important implications for you and should be made after proper discussions with a criminal lawyer.

Maximum penalty and court that deals with this charge

Recklessly Causing Serious Injury has a maximum penalty of 15 years imprisonment.

As this charge is an indictable offence triable summarily, it is regularly heard in both the Magistrates’ Court and County Court.

Amendments to the Sentencing Act 1991 require that a period of imprisonment with a minimum non-parole period of two years be imposed when a person is found guilty of committing this offence and the victim is a emergency worker on duty or a custodial officer on duty.1 In these cases, the prosecution may apply to have the matter heard in the County Court as Magistrates are only able to impose a maximum of two years imprisonment for any given offence.2

What is the legal definition of Recklessly Causing Serious Injury?

A person who, without lawful excuse, recklessly causes serious injury to another person is guilty of an indictable offence.

Legislation

The relevant legislation for this offence is section 17 of Crimes Act 1958 (Vic) (the Act).

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Elements of the offence

To prove this charge the Police must prove the following elements:

  1. The complainant suffered a serious injury;
  2. The accused caused the complainant’s serious injury;
  3. The accused was reckless about causing the serious injury and
  4. The accused acted without any lawful justification or excuse.

Element 1: The complainant suffered a serious injury
‘Serious injury’ is defined in section 15 of the Act as:

  1. An injury (including the cumulative effect of more than one injury) that –
    1. Endangers life; or
    2. Is substantial and protracted
  2. 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.

An ‘injury’ is defined in section 15 of the Act as:

  1. Physical injury; or
  2. Harm to mental health;

whether temporary or permanent.

Physical injury and mental harm are both defined inclusively.

Physical injury includes unconsciousness, disfigurement, substantial pain, infection with a disease and impairment of bodily function.3

Harm to mental health includes psychological harm, but does not include distress, grief, fear or anger unless these emotions result in psychological harm.4

Under the law in force before 1 July 2013, serious injury was inclusively defined to mean a combination of injuries and / or the destruction of a foetus. A decision maker would have to make a value judgment as to whether an injury amounted to a serious injury.5

The amendments in the Crimes Amendment (Gross Violence Offences) Act 2013 substituted a new exhaustive definition for serious injury. For charges initiated after 1 July 2013, once a decision maker decides that an injury endangers life, is substantial and protracted or involves the destruction of a foetus, they must conclude that the injury is a serious injury.6

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

The accused need not personally inflict the injury. This element of the offence will be satisfied even if the accused indirectly caused the injury.7

Element 3: The accused was reckless about causing the serious injury
The accused must have been aware at the time of committing the offence that their conduct would probably or likely cause serious injury.8 It is not sufficient for the accused to have been aware that serious injury was possible or might result from their actions.9

To satisfy this element, the prosecution must prove that the accused themselves was aware that their conduct would probably cause serious injury. It is not sufficient that a ‘reasonable person’ in the accused’s circumstances would foresee that their actions would probably seriously injure the complainant.10

"Can they prove you probably knew your actions would result in serious injury?"

Element 4: The accused acted without any lawful justification or excuse
The prosecution must disprove any defences which are open on the evidence, such as self defence or duress.

Sentencing in the higher courts

High CourtThere were 422 cases (556 charges) of Recklessly Causing Serious Injury heard in the Victorian higher courts from 1 July 2011 to 30 June 2016. Most of these cases led to imprisonment (67.1%) although other sentencing forms were also imposed: Community Correction Order (14.4%), wholly suspended sentence (10.2%), Youth Justice Centre order (5%), and partially suspended sentence (2.8%).

Majority of those who were sentenced to imprisonment received a term between 2 and 3 years (24.7%). The longest custodial sentence imposed was between 7 and 8 years although this was applied in only 1.1% of the cases.11

Please note that suspended sentences were abolished in the higher courts for matters dated on or after 1 September 2013.12

Sentencing in the Magistrates’ Courts

In the Magistrates' Courts, 549 cases (562 charges) of Recklessly Causing Serious Injury were heard between 1 July 2013 and 30 June 2016. These cases resulted in the following penalties:

  • Community Correction Order - 32.2%
  • Imprisonment - 31.3%
  • Wholly Suspended Sentence - 17.9%
  • Fine - 9.5%
  • Partially Suspended Sentence - 3.8%
  • Adjourned Undertaking/Discharge/Dismissal - 3.5%
  • Youth Justice Centre Order - 1.8%

The longest period of imprisonment imposed was 36+ months which was applied in 2.9% of the cases where a custodial sentence was imposed. The term of imprisonment most frequently imposed was between 12 and 18 months (applied in 23.3% of cases where a custodial sentence was imposed).

For the fines (aggregate), the majority of those who were fined fell under the "$1,000 < $2,000" category (11.3% of those who were sentenced to aggregate fines). For non-aggregate fines, the majority fell under the "$2,000 < $3,000" category (30.2% of those who were sentenced to non-aggregate fines). The highest fine imposed was between $10,000 and $20,000 although this was applied in only 1.9% of the charges that led to aggregate fines, and in 1.9% of the charges that led to non-aggregate fines.13

Please note that suspended sentences were abolished in the Magistrates’ Court for all offences committed on or after 1 September 2014.14

Other important resources
Case studies related to Recklessly Causing Serious Injury

 



[1] Sentencing Act 1991 (Vic) s 10AA(1)
[2] Sentencing Act 1991 (Vic) s 113
[3] Crimes Act 1958 (Vic) s 15
[4] Crimes Act 1958 (Vic) s 15
[5] R v Welsh & Flynn Vic CCA 16/10/1987
[6] Judicial College of Victoria Bench Notes, Recklessly Causing Serious Injury, [9]
[7] R v Salisbury [1976] VR 452
[8] R v Crabbe (1985) 156 CLR 464
[9] R v Crabbe (1985) 156 CLR 464
[10] R v Campbell [1997] 2 VR 585
[11] SACStat Higher Courts - Crimes Act 1958 (Vic) : s 17 - causing serious injury recklessly < https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_6231_17.html >
[12] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >
[13] SAC Statistics - Crimes Act 1958 (Vic) : s 17 - causing serious injury recklessly < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/6231_17.html >
[14] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >