Reckless wounding and reckless grievous bodily harm in NSW: section 35 Crimes Act 1900.

The news, and the point of law it raises.

A report that a driver has been charged after a road rage confrontation, in which one man suffered a serious arm injury, has put a common charge back in view. Among the charges was reckless wounding. The matter is before a court, no one has been convicted, and any person charged is presumed innocent. This note is not about that case. It is about the offence the report names, and about a question anyone facing a violence charge asks: what does reckless wounding actually mean, and how serious is it? The answer turns on two things the law defines with care, a wound and recklessness, and on where the alleged act sits on the ladder of assault offences.

What is reckless wounding under section 35?

Reckless wounding is an offence under section 35 of the Crimes Act 1900 (NSW). To prove it, the Crown must establish two things beyond reasonable doubt. First, that you caused a wound to another person. Second, that at the time, you were reckless as to causing actual bodily harm. You do not need to have wanted to hurt anyone. You do not need to have foreseen the actual injury that occurred. The offence is made out where you did an act that caused a wound while you foresaw that some harm, at the level of actual bodily harm, might follow.

That is what separates section 35 from the offence a rung above it. The reckless offence does not ask whether you meant to wound. It asks whether you knew you might cause harm and pressed on regardless. In a fight, a thrown object, or a struggle in which someone is cut, the presence or absence of that foresight is often the real battleground of the case.

What counts as a wound, and how is it different from grievous bodily harm?

A wound has a precise legal meaning. It is the breaking of both layers of the skin, the outer layer called the epidermis and the inner layer called the dermis. A cut that passes right through the skin is a wound. A graze, a scratch that does not go through, a bruise, redness or swelling is not. The wound does not have to be deep, and it does not have to be permanent. A small but full cut that heals in days can still be a wound in law. A split lip that breaks the inner skin has been treated as a wound. The threshold is the break in the skin, not the size of the injury.

Grievous bodily harm is different, and more serious. It means really serious injury. Broken bones, a fractured skull, internal injuries, or injuries needing surgery are the usual examples. Section 4 of the Crimes Act 1900 (NSW) also states that grievous bodily harm includes the destruction of a foetus, any permanent or serious disfiguring, and any grievous bodily disease. A key point is that grievous bodily harm needs no break in the skin at all. A single blow that causes a serious internal injury can be grievous bodily harm even where the skin stays intact. So a shallow but full cut can be a wound, while a heavy internal injury with no cut can be grievous bodily harm. Section 35 covers both results.

What does reckless mean in section 35?

Recklessness here is about what was in your mind. It means you actually foresaw the possibility that harm would result from your act, and you went ahead anyway. It is not about whether a careful person would have seen the risk. It is about whether you did. That is a subjective test, and it is proved by inference from what you did and said and the surrounding facts.

There is a twist that catches people out. You might expect that on a charge of reckless grievous bodily harm, the Crown must prove you foresaw grievous bodily harm. It does not. Since the Crimes Amendment (Reckless Infliction of Harm) Act 2012 (NSW), the level of harm you must have foreseen is only actual bodily harm, a lower level than either wounding or grievous bodily harm. So for reckless grievous bodily harm, the Crown proves you foresaw the possibility of actual bodily harm, even though the injury caused was grievous bodily harm. The 2012 change reversed the earlier position in Blackwell v R (2011) 208 A Crim R 392, where the Court of Criminal Appeal had held that the accused must foresee the specific harm the charge named. The result is that recklessness is easier for the Crown to prove now than it was before 2012.

What is the maximum penalty for section 35?

Section 35 has four limbs, and each carries its own maximum. Reckless grievous bodily harm in the company of another person carries 14 years, with a standard non-parole period of 5 years. Reckless grievous bodily harm on its own carries 10 years, with a standard non-parole period of 4 years. Reckless wounding in company carries 10 years, with a standard non-parole period of 4 years. Reckless wounding on its own carries 7 years, with a standard non-parole period of 3 years. Being in company, meaning acting with at least one other person present and sharing in the attack, lifts the penalty by design, because group violence is treated as worse than the same act alone.

A standard non-parole period is not a mandatory minimum. It is a guidepost the court uses for an offence in the middle of the range of seriousness, and the court moves up or down from it according to the facts and the offender. Real outcomes for section 35 range widely, from a section 10 or a community based order at the lower end to full time custody for serious injuries or bad records. The injury, the weapon if any, the degree of provocation, the plea, and the offender's history all move the result.

How is section 35 different from wounding with intent under section 33?

The two offences can involve the same wound or the same serious injury. The difference is the state of mind, and it is a large one. Wounding or grievous bodily harm with intent under section 33 requires a specific intention to cause grievous bodily harm. Section 35 requires only recklessness, that is, foresight of the possibility of actual bodily harm. Because intent is harder to prove and more serious in law, section 33 carries up to 25 years, while the reckless offence under section 35 carries up to 14 years at its highest.

That gap is why the two sit together in practice. Where a person is charged under section 33 but the Crown cannot prove the intent beyond reasonable doubt, section 35 is the offence the case often falls back to, either as an alternative verdict at trial or through negotiation before it. The injury does not change. What is fought over is whether the mind behind the act was one of intent or one of foresight. For the wider ladder of assault charges, from common assault up to homicide, our note on the one punch offence and our explainer on glassing charges and injury thresholds show how the same act can be charged very differently.

Can section 35 be dealt with in the Local Court?

Section 35 is a Table 1 offence under the Criminal Procedure Act 1986 (NSW). That means it is dealt with in the Local Court unless the prosecution or the accused elects to take it to the District Court to be dealt with on indictment. If it stays in the Local Court, the most that court can impose for the single offence is 2 years imprisonment, whatever the maximum in the section says. Whether to keep a matter in the Local Court or send it up is a real strategic decision. The Local Court caps the sentence, but the District Court can bring a wider view of the facts and, for a fought case, a jury. The choice depends on the strength of the Crown case, the seriousness of the injury, and the offender's record.

What are the defences to reckless wounding or grievous bodily harm?

Several defences run on a section 35 charge. The first is self-defence. If you acted to defend yourself or another, and what you did was a reasonable response to the danger as you saw it, the Crown must disprove self-defence beyond reasonable doubt, and if it cannot, you are entitled to an acquittal. The second is the absence of recklessness. If you did not foresee any possibility of harm, for example where the injury was a genuine accident, the mental element is not made out. The third goes to the injury itself. If the injury does not reach the level of a wound, meaning both layers of skin were not broken, or does not reach grievous bodily harm, the charge may not be sustained on the facts and a lesser charge may be the correct one. Causation and identity are also live in many cases, that is, whether your act caused the injury and whether you were the person responsible at all. Which of these applies depends entirely on the evidence, so early advice matters.

How does reckless wounding and grievous bodily harm work in the ACT?

The ACT reaches the same conduct through its own Crimes Act 1900 (ACT), and the numbers are different. Recklessly inflicting grievous bodily harm is an offence under section 20, and it carries a maximum of 13 years, rising to 15 years for an aggravated offence. Wounding is a separate offence under section 21, and it carries a maximum of 5 years, rising to 7 years for an aggravated offence. An offence can be aggravated where, for example, the victim is pregnant or the act happens in a family violence context. The mental element and the penalties do not match NSW, so the jurisdiction where the alleged act happened decides which law applies. A wounding on the ACT side of the border is charged under the ACT Act, not section 35.

What to do if you are charged.

Get advice before you speak to police. A section 35 charge often starts with a police interview while the events are fresh and the injury looks worse than it will at trial, and what you say in that interview can decide the case. The guidance in our note on the police interview and the ERISP applies from the first contact. The right early steps are to say nothing about the substance until you have advice, to preserve any account of what happened and who started it, and to gather the material that shows the true level of the injury and the context of the incident.

The reason section 35 rewards early work is that the case usually turns on two questions of degree, the level of the injury and the state of mind behind the act. Both are open to argument, and both are shaped by decisions made in the first days. Our note on the first thirty days of a serious matter sets out why those early decisions carry so much weight, and why a charge that looks fixed at the start is often not fixed at all.

Primary sources: the reckless offence is section 35 of the Crimes Act 1900 (NSW), with grievous bodily harm defined in section 4; the recklessness reform is the Crimes Amendment (Reckless Infliction of Harm) Act 2012; the earlier position is Blackwell v R (2011) 208 A Crim R 392, searchable on JADE. The ACT offences are sections 20 and 21 of the Crimes Act 1900 (ACT). The NSW Sentencing Bench Book collects the standard non-parole periods for section 35.

Common questions

What is reckless wounding under section 35 of the Crimes Act 1900 (NSW)?

It is an offence under section 35(4). The Crown must prove you caused a wound, meaning a break in both layers of the skin, and that you were reckless as to causing actual bodily harm. You do not have to have intended any injury. It is enough that you foresaw the possibility that some harm might result and went ahead. The maximum penalty is 7 years, rising to 10 years if the offence was committed in company.

What is the difference between a wound and grievous bodily harm?

A wound is a break in both layers of the skin, the epidermis and the dermis. A cut through the skin is a wound; a graze, bruise or swelling is not, and it need not be deep or permanent. Grievous bodily harm means really serious injury, such as broken bones or internal injuries, and needs no break in the skin at all. Section 35 covers both.

What does reckless mean in section 35?

It means you actually foresaw the possibility of harm and went ahead anyway. Since the Crimes Amendment (Reckless Infliction of Harm) Act 2012, the level of harm you must have foreseen is only actual bodily harm, even on a charge of reckless grievous bodily harm. That reversed the earlier position in Blackwell v R (2011), which required foresight of the specific harm charged.

What is the maximum penalty for reckless grievous bodily harm in NSW?

Reckless grievous bodily harm in company carries 14 years, with a 5 year standard non-parole period. Reckless grievous bodily harm carries 10 years, with a 4 year standard non-parole period. Reckless wounding in company carries 10 years and 4 years; reckless wounding carries 7 years and 3 years. The standard non-parole period is a guidepost, not a mandatory minimum. In the Local Court the cap is 2 years for the single offence.

How is section 35 different from wounding with intent under section 33?

The injuries can be identical. Section 33 requires a specific intention to cause grievous bodily harm and carries up to 25 years. Section 35 requires only recklessness, meaning foresight of the possibility of actual bodily harm, and carries up to 14 years. Where the intent cannot be proved beyond reasonable doubt, section 35 is often the offence the case comes down to.

How does reckless wounding and grievous bodily harm work in the ACT?

The ACT uses its own Crimes Act 1900 (ACT). Recklessly inflicting grievous bodily harm is an offence under section 20, carrying 13 years, or 15 years aggravated. Wounding is a separate offence under section 21, carrying 5 years, or 7 years aggravated. An offence can be aggravated where the victim is pregnant or the act happens in a family violence context. The jurisdiction where the act happened decides which law applies.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 27 August 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

← Back to all news