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Recklessly Causing Serious Injury

In Victoria, the offence of Recklessly Cause Serious Injury is in section 17 of the Crimes Act 1958 Vic and is where careless conduct causes another a serious injury. The Prosecution do not need to prove that the accused intended the outcome.

Have you been accused you of Recklessly Cause Serious Injury? You will want to speak with one of our experienced lawyers straight away.
 
We are criminal lawyers who specialise in criminal defence work and have successfully represented many people charged with Recklessly Cause Serious Injury.

Police interview
It is important that you speak with one of our lawyers before you speak with the Police. Anything you tell the Police can be used in evidence against you or assist the Police investigation against you. We can advise you about what should be said during a Police interview. You must know the answers to the following before you walk into the Police station:

  • Should I make a statement to Police?
  • Should I attend a Police interview?
  • Do I need to give my DNA?
  • Will the Police leave me alone if I explain my side of the story?
  • Will I be remanded?
Our lawyers can also attend the Police station with you if you feel more comfortable having someone on your side to assist you through the interview process.

Pleading not guilty
Our defence lawyers specialise in defending charges of Recklessly Cause Serious Injury and we can devise a case strategy for you.

Our lawyers are proactive in their approach and will consider:

  • Is there relevant CCTV footage?
  • Is there DNA evidence?
  • Are there people who the Police have not spoken to who can shed some light on this case?
  • Is there evidence which we need to be preserve?
  • Do the Police have medical reports to substantiate the serious injury allegation?
Preparing a defence strategy early will increase the chances of preserving valuable evidence which can help your case later on. It may lead to witnesses that we will take statements from rather than the Police.

Pleading guilty
Recklessly Cause Serious Injury  is a serious charge and may result in a prison sentence. Therefore, you must speak with one of our lawyers before agreeing to plead guilty to Recklessly Cause Serious Injury. Our experienced lawyers can:

  • Help you gather an expert report,
  • Help you gather character references,
  • Represent you at your plea hearing.
 Call us and discuss how to get the best result.
As this charge is an indictable offence triable summarily, it is regularly heard in both the Magistrates’ Court and County Court.
 
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.
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).

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.1

Harm to mental health includes psychological harm, but does not include distress, grief, fear or anger unless these emotions result in psychological harm.2

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.3

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.4

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.5

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.6 It is not sufficient for the accused to have been aware that serious injury was possible or might result from their actions.7

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.8

“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.


[1] Crimes Act 1958 (Vic) s 15
[2] Crimes Act 1958 (Vic) s 15
[3] R v Welsh & Flynn Vic CCA 16/10/1987
[4] Judicial College of Victoria Bench Notes, Recklessly Causing Serious Injury, [9]
[5] R v Salisbury [1976] VR 452
[6] R v Crabbe (1985) 156 CLR 464
[7] R v Crabbe (1985) 156 CLR 464
[8] R v Campbell [1997] 2 VR 585

 
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.

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?

Recklessly Causing Serious Injury (s17 of the Crimes Act 1958) has a maximum penalty of 15 years imprisonment.

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.9 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.10



[9] Sentencing Act 1991 (Vic) s 10AA(1)
[10] Sentencing Act 1991 (Vic) s 113

Sentencing in the higher courts
There 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


[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 >