Criminal Law

Unlawful Wounding in WA

The offence of unlawful wounding is a serious criminal offence that can have a profound impact on your life, affecting your ability to travel overseas, future employment in certain industries and in some cases, a term of imprisonment. 

Here we explain the charge of unlawful wounding in Western Australia and information relevant to this charge, including the maximum penalty, circumstances of aggravation, and common defences.

 

Have you been charged? Get legal advice

If you have been charged with this type of assault offence, you must seek advice from an experienced criminal lawyer as soon as possible. 

Call Andrew Williams today on (08) 9278 2575  for legal advice and representation.

 

Definition

A wounding is considered unlawful if it is not legally justified. The offence occurs when a person unlawfully breaks the skin of another person.

It is not enough for only the victim's cuticle or outer skin to be broken. The victim's true skin must be broken.

As an example, a charge of unlawful wounding can result from a 'glassing' or from a wound caused by a knife or bottle.

Section 301(1) of the Code provides that any person who unlawfully wounds another is guilty of a crime.

 

Jurisdiction

The charge can be determined in either the Magistrates Court or the District Court. 

 

What is the maximum penalty for Unlawful Wounding in WA?

If the unlawful wounding is determined in the Magistrates Court maximum summary penalty is imprisonment for 2 years and a fine of $24,000. If the offence occurred in circumstances of aggravation, the maximum summary penalty is imprisonment for 3 years and a fine of $36,000.

If the unlawful wounding is determined in the District Court the maximum penalty for is a term of imprisonment of 5 years. If the offence is committed in circumstances of aggravation, the maximum penalty for aggravated unlawful wounding is 7 years imprisonment.

 

What is the prosecution required to prove for unlawful wounding?

To be found guilty of unlawful wounding, the prosecution must prove that the accused unlawfully wounded another. The intention of the accused is irrelevant in proving this offence.

There is no definition of ‘unlawful wounding’ in the Code.

An act is ‘unlawful’ where it cannot be excused, authorised or justified in accordance with the law.

A ‘wound’ has been interpreted to mean the breaking or cutting of the ‘true skin’ known as the dermis (interior layer of the skin). This means that to be convicted of a charge of unlawful wounding, breaking the epidermis (exterior layer of the skin) would not suffice.

  

Is there a defence to a charge of unlawful wounding?

There are several defences available to an offence of unlawful wounding:

Self Defence: An accused may raise self-defence where they believed on reasonable grounds that they needed to protect themselves (or a third party) from a harmful act by the victim.

Unwilled Act: There have been cases, such as Duffy v R [1981] WAR 72, where an accused has raised the defence of an unwilled act under s 23A of the Criminal Code. In Duffy the accused was charged with unlawful wounding in circumstances where he had punched the victim while there was a glass in his hand. Duffy accepted that he had struck the victim with the glass but maintained this was an unwilled act because he was unaware that he was holding a glass in his hand at the time that he stuck the victim.

Accident:  The defence of accident has a limited operation in cases of unlawful wounding. One particular case involves a situation where the accused threw a glass into the victim’s face causing serious injuries. The accused raised the defence of accident claiming that the glass had slipped from their hand and that there was no intent to harm. The defence was unsuccessful and the accused was convicted.

Provocation:  The defence of provocation is not available to an accused charged with unlawful wounding as held in Kaparonovski v R (1973) 133 CLR 209.

 

Sentencing for Unlawful Wounding

Although the offence of unlawful wounding is considered very serious a term of imprisonment is not always imposed. The degree of harm caused by this offence varies considerably, from conduct that causes minor lacerations to serious cases of stabbings. 

In an unlawful wounding case, the relevant considerations for the sentencing judge include (as articulated in Messaoui v R SCL 9210.1/1991):

  • the threat to life and health posed by the offender’s action; and
  • the possibility of more serious harm arising from the offender’s action.

 

Does Unlawful Wounding Overlap with Grievous Bodily Harm?

The definition of grievous bodily harm covers injuries that also fall within the scope of the offence of unlawful wounding, such as serious stabbings and gunshot wounds.

This overlap may give rise to a situation where the same sets of facts establish either offence under the Criminal Code. In these cases, the prosecution exercises its discretion to charge the person with the offence that it considers the most appropriate.

 

Examples of Unlawful Wounding

There are a variety of circumstances in which the offence of unlawful wounding can be committed. The offence may involve a stabbing, a “glassing”, or even a gunshot wound.

Glassing incidents in the Australian nightlife scene remain a persistent issue. The act of ‘glassing’ refers to striking another person with a glass or a bottle. This act can cause serious injuries including disfigurement and blindness.

In 2019, a mother-of-three was charged with unlawful wounding after glassing another woman on the dance floor at the Duke Bar and Bistro in Carramar. The victim’s injuries required emergency plastic surgery. The accused narrowly avoided jail after the court imposed 12 months imprisonment but ordered that the term be suspended. They exercised leniency in the sentencing approach in light of the mother showing genuine remorse, engaging in counselling and being of prior good character.

The offence of unlawful wounding may also encompass gunshot wounds. In the case of Roncevic v The State of Western Australia 2012, the accused fired a shot from a handgun into the victim’s upper thigh. The accused was charged with unlawful wounding for the act and was sentenced to 2 years and 6 months imprisonment.

 

Need Legal Advice For Unlawful Wounding Charges?

It's essential to consult with a criminal defence lawyer to understand your rights, possible defences, and the legal process involved if you are charged with the offence of Unlawful Wounding in WA.

Andrew Williams has offices based in Perth and Fremantle. He also represents clients in courts across Australia and the regional areas of WA and has extensive experience in representing individuals charged with Assault

Contact the Law Offices of Andrew Williams for legal advice and representation in court on (08) 9278 2575.

 

Assault & Violent Offences

In the state of Western Australia, assault charges encompass a variety of conduct that is violent. This conduct varies greatly and carries different penalties based on the severity of harm, degree of violence involved and individual circumstances. The presence of a relevant legal defence also impacts the penalty imposed which can range from financial penalties to prison sentences. Other types of assault charges include:

  • Common Assault - also referred to as unlawful assault, where a person applies force to another without that person's consent, such as pushing, slapping, striking, kicking and spitting. Physical contact is not always necessary, as threatening harm can also be considered an assault.
  • Assault Occasioning Bodily Harm - this type of offence arises where, as a result of an assault, the accused causes another person physical harm, such a black eye, broken bone or swelling and bruising.
  • Assault of Public Officer - this includes an ambulance officer, Fire and Emergency Services officer, a person working in a hospital, or a person operating or driving a rail vehicle, ferry, taxi or bus, and bodily harm or grievous bodily harm is not required to have taken place. If the offence was committed in prescribed circumstances, where the public officer was a police officer, prison officer or security officer and bodily harm did occur, mandatory sentencing laws will apply with immediate imprisonment.
  • Grievous Bodily Harm - the act of assault where the bodily injury either endangers life (or is likely to endanger life) or causes permanent injury to health (or is likely to cause permanent injury to health). This could include a broken jaw or a serious head injury.
  • Assault With Intent - this offence occurs when the assault was carried out by a person with the intent of committing or facilitating the commission of a crime, committing grievous bodily harm to any person, or resisting or preventing the lawful arrest or detention of any person.
  • Unlawful Indecent Assault - this can encompass a wide range of behaviours and depends on the act itself, the circumstances of the conduct, and/or the relationship between the parties involved. It is sexual, without the consent of the other person.
  • Sexual Assault - this includes sexual penetration without consent, indecent dealings with a child under 16 years of age, using electronic communication to procure a child to engage in sexual activity, distribution and possession of child pornography or child exploitation material, or sexual offences against a child of or over 16 where the accused is in a position of authority.

It's important to speak with an experienced assault lawyer for specific advice tailored to your matter as circumstances vary considerably from case to case.

 

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