By Paul Gregoire and Ugur Nedim
Late on the night of February 12, 2013, Jason Dewey heard voices coming from several men gathered out the front of his wife’s Cessnock home. The men were making threatening remarks directed towards him.
After going out onto the front veranda, Mr Dewey saw a group of ten men, some of whom were armed with bats and pieces of wood. Amongst them he noticed his wife’s cousin, Dean Swan. At that point, one of the men yelled out to Dewey, threatening to kill him.
Dewey’s wife took their 9-year-old son and made her way to the house next door, which was where her mother-in-law lived. She called the police. Soon after, her 6-year-old daughter followed her over to her grandmother’s house.
At that point, the men grabbed Dewey and dragged him into the middle of the front yard. While Dewey was lying on the ground, the men surrounded and began kicking and punching him. One man struck him with a cricket bat, while another broke a guitar over his head.
One of the attackers called out to Mr Swan, who was standing back from the rest of the crowd. “Get in here Dean, and have a go,” the man called directed. “We’re here for you.”
Swan ran in and kicked Dewey several times as he lay on the ground. Police sirens could then be heard approaching and the group of men fled.
The District Court case
Dean Swan appeared in Newcastle District Court in June 2014. He was charged with three assault offences. No verdict was taken on the third count, as it was an alternative charge to the second. The jury found Mr Swan guilty of the first two charges.
The first charge was that on the night of the incident, Mr Swan had engaged in conduct that amounted to affray under section 93C(1) of the NSW Crime Act 1900. Affray is when a person uses or threatens unlawful violence towards another, such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety.
The offence carries a maximum penalty of 10 years’ imprisonment.
Mr Swan was also found guilty of recklessly causing grievous bodily harm in company contrary to section 35(1) of the Crimes Act. This is where a person who is in the company of another person/s causes grievous bodily harm to another, and is reckless as to causing actual bodily harm to that or any other person.
That offence carries a maximum penalty of 14 years’ imprisonment and a standard non-parole period (SNPP) of 5 years.
An SNPP only applies to certain offences and acts as a guidepost for a court when setting a non-parole period, which is the minimum time an offender must spend behind bars before being eligible for parole. A court is not obliged to follow the standard when determining a non-parole period.
Judge Berman of the NSW District Court sentenced Mr Swan to 3 years and 6 months in prison for the offence of affray, with a non-parole period of 2 years. He was sentenced to 3 years behind bars, with a non-parole period of 1 year and 6 months, for recklessly causing grievous bodily harm.
Grievous bodily harm
As discussed in a previous blog, grievous bodily harm refers to the most serious types of injury.
Judge King remarks in the case of R v Perks (1986) that when attempting to explain grievous bodily harm to a jury, a judge must use the words “really serious,” and not merely “serious.”
The phrase “really serious bodily injury” has its basis in the British court case DPP v Smith (1961).
Assault charges involving grievous bodily harm may be carried out either “intentionally” or “recklessly.” A reckless act is not judged as seriously as an intentional one, and a lower maximum penalty will normally apply.
Causing grievous bodily harm with intent is an offence under section 33(1)(b) of the Crimes Act. For a person to be found guilty of that charge, the prosecution must prove beyond reasonable doubt that a person caused grievous bodily harm and had an intention to do so.
This offence carries a maximum penalty of 25 years’ imprisonment, and an SNPP of 7 years.
The law often prescribes higher maximum penalties where an offender is in the company of another or others.
For instance, if Dean Swan had carried out the attack on his own, he would likely have been charged under section 35(2) of the Crimes Act, which carries a maximum penalty of 10 years’ imprisonment and an SNPP of 4 years.
Grievous bodily harm in the Crimes Act
Section 4 of the Crimes Act provides that grievous bodily harm includes:
“(a) 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, and
(b) any permanent or serious disfiguring of the person, and
(c) any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease).”
However, this list is far from exhaustive, and juries will often have to determine whether injuries should be considered “really serious”.
NSW Court of Criminal Appeal (NSWCCA)
Dean Swan appealed his case in the NSWCCA in April last year. He did not contest his affray conviction, but was appealing against the conviction for recklessly causing grievous bodily harm, arguing the verdict was “unreasonable” or could not “be supported having regard to the evidence.”
Swan accepted that if his conviction on this count was quashed, he would then be charged on the previously untried third count, which was for assault occasioning actual bodily harm in company.
Grievous versus actual bodily harm
There is a great deal of contention about whether certain injuries amount to grievous bodily harm – or “really serious harm” – as opposed to ‘actual bodily harm’, which is defined as more than “transient or trifling” but less than “really serious”.
Indeed, different juries may come to different conclusions about the category of harm into which an injury falls.
The Public Defenders Sentencing Tables provide some guidance regarding the category of harm that different types of injuries fall into. Those tables provide summaries of actual cases, including the offence under which they were sentenced, the nature and extent of injury caused, and the sentence imposed.
Injuries which have been considered actual bodily harm have include bleeding from the head, serious bruising and abrasions.
Those considered as grievous include a fractured right arm, “glassing” of the face that’s required stitches, and a gaping wound to the throat requiring stitching.
However, the Tables also injuries which were tried as actual bodily harm, but could arguably have been classed as “really serious”, including skull and brain damage, and a number of deep knife stabbings.
John Dewey’s injuries
During the District Court trial, evidence relating to the injuries sustained by Mr Dewey was given by himself and Dr Ting of the John Hunter Hospital. The injury that was considered to constitute grievous bodily harm was a fracture to a bone which was a part of a lumbar vertebra.
Justice Garling ruled that the jury’s conclusion that the injury was grievous bodily harm was unreasonable. This was due to a number of features of the injury.
The judge listed these as: no displacement of the fracture, no requirement of an operation or treatment, no permanent injury, the short period of hospitalisation, the doctor’s description of it as a “minor” injury and the fact Dewey did not visit a doctor for further treatment.
The appeal was upheld on that basis, and the conviction for reckless causing grievous bodily harm was quashed. Mr Swan was then charged with assault occasioning actual bodily harm under section 59(2) of the Crimes Act, which provides that anyone who assaults another person and occasions actual bodily harm is liable to imprisonment for five years. Under subsection 2, the maximum penalty increases to seven years’ in prison where the offence is committed in company.
A contentious issue
However Justice Wilson dissented, expressing the view that the injury was “really serious”, nothing that Mr Dewey suffered considerable pain and could not work for four to six weeks.
“Although an injury such as that described in evidence at trial is… very much at the lower range of injuries encompassed by the expression grievous bodily harm,” Justice Wilson remarked, “I do not consider that it was unreasonable for the jury to conclude that the injury was grievous.”
The case demonstrates the difficulties in placing an injury into a specific category.