Div 7ACausing physical or mental harm

Division 7A—Causing physical or mental harm 21—Interpretation cause—a person causes harm if the person's conduct is the sole cause of the harm or substantially contributes to the harm; If a victim suffers serious harm as a result of multiple acts of harm and those acts occur in the course of the same incident, or together constitute a single course of conduct, a person who commits any of the acts causing harm is taken to cause serious harm even though the harm caused by the act might not, if considered in isolation, amount to serious harm. harm means physical or mental harm (whether temporary or permanent); lesser offence, in relation to an offence against this Division, means— (a) in relation to an aggravated offence—the basic offence or another offence against this Division, Division 7AB or section 32A, for which a lesser maximum penalty is prescribed; (b) in any other case—another offence against this Division, Division 7AB or section 32A for which a lesser maximum penalty is prescribed; mental harm means psychological harm and does not include emotional reactions such as distress, grief, fear or anger unless they result in psychological harm; physical harm includes— (a) unconsciousness; (b) pain; (c) disfigurement; (d) infection with a disease; recklessly—a person is reckless in causing harm or serious harm to another if the person— (a) is aware of a substantial risk that his or her conduct could result in harm or serious harm (as the case requires); and (b) engages in the conduct despite the risk and without adequate justification; serious harm means— (a) harm that endangers a person's life; or (b) harm that consists of, or results in, serious and protracted impairment of a physical or mental function; or (c) harm that consists of, or results in, serious disfigurement. 22—Conduct falling outside the ambit of this Division (1) This Division does not apply to the conduct of a person who causes harm to another if the victim lawfully consented to the act causing the harm. (2) A lawful consent given on behalf of a person who is not of full age and capacity by a parent or guardian will be taken to be the consent of the person for whom the consent was given. (3) A person may consent to harm (including serious harm) if the nature of the harm and the purpose for which it is inflicted fall within limits that are generally accepted in the community. 1 A person may (within the limits referred to above) consent to harm that has a religious purpose (eg male circumcision but not female genital mutilation). 2 A person may (within the limits referred to above) consent to harm that has a genuine therapeutic purpose (eg a person with 2 healthy kidneys may consent to donate 1 for the purpose of transplantation to someone with kidney disease). 3 A person may (within the limits referred to above) consent to harm for the purpose of controlling fertility (eg a vasectomy or tubal ligation). 4 A participant in a sporting or recreational activity may (within the limits referred to above) consent to harm arising from a risk inherent in the nature of the activity (eg a boxer may accept the risk of being knocked unconscious in the course of a boxing match and, hence, consent to that harm if it in fact ensues). (4) If a defendant's conduct lies within the limits of what would be generally accepted in the community as normal incidents of social interaction or community life, this Division does not apply to the conduct unless it is established that the defendant intended to cause harm. (5) If the defendant's conduct caused only mental harm, this Division does not apply to the defendant's conduct unless— (a) the defendant's conduct gave rise to a situation in which the victim's life or physical safety was endangered and the mental harm arose out of that situation; or (b) the defendant's primary purpose was to cause such harm. 1 An examiner fails a student in an examination knowing that the student has been diagnosed with schizophrenia and that failure to pass is likely to precipitate a schizophrenic episode. The student in fact suffers such an episode. 2 An employer legally terminates an employee's employment knowing that the employee suffers from a mental illness and that the termination is likely to exacerbate the mental illness. The employee in fact suffers an exacerbation of the mental illness. In both the above examples, it is not sufficient for the prosecution to prove that the defendant acted intentionally knowing that harm would inevitably, probably or possibly result from his or her act. It would be necessary for the prosecution to establish that the defendant wanted to cause harm and that desire was the sole or a significant motivation for the defendant's conduct. 23—Causing serious harm (1) A person who causes serious harm to another, intending to cause serious harm, is guilty of an offence. (a) for a basic offence—imprisonment for 20 years; (b) for an aggravated offence—imprisonment for 25 years. (2) If, however, the victim in a particular case suffers such serious harm that a penalty exceeding the maximum prescribed in subsection (1) is warranted, the court may, on application by the Director of Public Prosecutions, impose a penalty exceeding the prescribed maximum. (3) A person who causes serious harm to another, and is reckless in doing so, is guilty of an offence. 24—Causing harm (1) A person who causes harm to another, intending to cause harm, is guilty of an offence. (b) for an aggravated offence—imprisonment for 13 years. (2) A person who causes harm to another, and is reckless in doing so, is guilty of an offence. (c) for an offence aggravated by the circumstances referred to in section 5AA(1)(c), (ca) or (ka)—imprisonment for 8 years. 25—Alternative verdicts If — (a) a jury is not satisfied beyond reasonable doubt that a charge of an offence against this Division has been established; but (b) the Judge has instructed the jury that it is open to the jury on the evidence to find the defendant guilty of a specified lesser offence or any 1 of a number of specified lesser offences; and (c) the jury is satisfied beyond reasonable doubt that the specified lesser offence, or a particular 1 of the specified lesser offences, has been established, the jury may return a verdict that the defendant is not guilty of the offence charged but is guilty of the lesser offence. 29—Acts endangering life or creating risk of serious harm (1) Where a person, without lawful excuse, does an act or makes an omission— (a) knowing that the act or omission is likely to endanger the life of another; and (b) intending to endanger the life of another or being recklessly indifferent as to whether the life of another is endangered, (b) for an aggravated offence—imprisonment for 18 years. (2) Where a person, without lawful excuse, does an act or makes an omission— (a) knowing that the act or omission is likely to cause serious harm to another; and (b) intending to cause such harm or being recklessly indifferent as to whether such harm is caused, (b) for an aggravated offence—imprisonment for 12 years. (3) Where a person, without lawful excuse, does an act or makes an omission— (a) knowing that the act or omission is likely to cause harm to another; and (b) intending to cause such harm or being recklessly indifferent as to whether such harm is caused, (c) for an offence aggravated by the circumstances referred to in section 5AA(1)(c), (ca) or (ka)—imprisonment for 8 years. (4) If a court convicting a person of an offence against this section is satisfied that the act or omission constituting the offence was done or made by the convicted person in the course of the convicted person's use of a motor vehicle, the court must order that the person be disqualified from holding or obtaining a driver's licence for 5 years or such longer period as the court orders. (5) Where a convicted person is disqualified from holding or obtaining a driver's licence— (a) the disqualification operates to cancel any driver's licence held by the convicted person as at the commencement of the period of disqualification; and 29A—Shooting at police officers (a) discharges a firearm— (i) intending to hit a police officer with shot, or a bullet or other projectile, fired from the firearm; or (ii) being reckless as to whether a police officer is hit with shot, or a bullet or other projectile, fired from the firearm; and (b) by that conduct, causes serious harm to the police officer, Maximum penalty: Imprisonment for 25 years. (2) If, however, the victim in a particular case suffers such serious harm that a penalty exceeding the maximum prescribed in subsection (1) is warranted, the court may, on application by the Director of Public Prosecutions, impose a penalty exceeding the prescribed maximum. (3) In proceedings for an offence against subsection (1), it is not necessary for the prosecution to establish that the defendant intended to cause serious harm to a police officer. (4) A person who discharges a firearm— (a) intending to hit a police officer with shot, or a bullet or other projectile, fired from the firearm; or (b) being reckless as to whether a police officer is hit with shot, or a bullet or other projectile, fired from the firearm, (a) a jury is not satisfied beyond reasonable doubt that a charge of an offence against this section has been established; but (b) the Judge has instructed the jury that it is open to the jury on the evidence to find the defendant guilty of a specified lesser offence or any 1 of a number of specified lesser offences; and (c) the jury is satisfied beyond reasonable doubt that the specified lesser offence, or a particular 1 of the specified lesser offences, has been established, the jury may return a verdict that the defendant is not guilty of the offence charged but is guilty of the lesser offence. reckless—a person is reckless as to whether a police officer is hit with shot, or a bullet or other projectile, fired from a firearm discharged by the person if the person— (a) is aware of a substantial risk that a police officer could be hit with shot, or a bullet or other projectile, fired from the firearm; and (b) discharges the firearm despite the risk and without adequate justification. 31—Possession of object with intent to kill or cause harm (1) A person who, without lawful excuse, has the custody or control of an object that the person intends to use, or to cause or permit another to use— (a) to kill, or to endanger the life of, another; or (b) to cause serious harm to another, shall be guilty of an indictable offence and liable to be imprisoned for a term not exceeding 20 years. (2) A person who, without lawful excuse, has the custody or control of an object that the person intends to use, or to cause or permit another to use, to cause harm to another, shall be guilty of an indictable offence and liable to be imprisoned for a term not exceeding 10 years. Division 7AB—Special firearm offences 32—Possession of a firearm with intent to commit an offence A person who has the custody or control of a firearm or imitation firearm for the purpose of— (a) using, or causing or permitting another person to use, the firearm in the course of committing an offence punishable by a term of imprisonment of 2 years or more; or (b) carrying, or causing or permitting another person to carry, the firearm when committing an offence punishable by a term of imprisonment of 2 years or more, 32AA—Discharge of firearms to injure etc (1) A person who, without lawful excuse, discharges a firearm intending to injure, annoy or frighten any person is guilty of an offence. Maximum penalty: Imprisonment for 8 years. (2) A person who, without lawful excuse, discharges a firearm intending to damage any property is guilty of an offence. (3) A person who, without lawful excuse, discharges a firearm and who is reckless as to whether that act injures, annoys or frightens, or may injure, annoy or frighten, any person is guilty of an offence. (4) A person who, without lawful excuse, discharges a firearm and who is reckless as to whether that act damages, or may damage, any property is guilty of an offence. (5) In proceedings for an offence against this section, it is not necessary for the prosecution to establish that a person was, in fact, injured, annoyed or frightened or that property was, in fact, damaged (as the case requires) by the defendant's act. reckless—a person is reckless as to whether an act injures, annoys or frightens, or may injure, annoy or frighten any person, or damages, or may damage, any property, if the person— (a) is aware of a substantial risk that the act could injure, annoy or frighten any person or damage any property; and (b) does the act despite the risk and without adequate justification.