Domestic Violence & Protection Orders DVO (QLD) AVO (NSW)

Choking, Suffocation or Strangulation in a Domestic Setting


Aitken Whyte Lawyers Brisbane

Domestic Violence Orders, DVO Qld (AVO), Protection Orders Lawyers And Solicitors For Brisbane, Qld - Call 24/7: 07 3229 4459

Criminal Offences Associated With Domestic Violence

In 2016 Queensland introduced new laws making non-lethal strangulation in a domestic setting a stand-alone offence under section 315A of the Criminal Code (Qld) which provides that:

A person commits a crime if the person unlawfully chokes, suffocates or strangles another person, without the other person’s consent; and either

  • the person is in a domestic relationship with the other person; or
  • the choking, suffocation or strangulation is associated domestic violence under the Domestic and Family Violence Protection Act 2012

The maximum penalty that can be imposed by the Court is seven years.

Why Was This Law Introduced?

The laws were introduced following a recommendation made by the Special Taskforce on Domestic and Family Violence in Queensland. The Special Taskforce found that strangulation was a key predictor of domestic homicide and considered that appropriate penalty should be applied to account for this increased risk of subsequent escalation to the victim.

The type of conduct targeted by the new laws is already captured under existing offences in the Criminal Code, however the new laws were implemented to highlight the prevalence of suffocation, choking and strangulation in domestic violence cases.

What Must The Police Prove?

The prosecution must prove that:

  1. the offender unlawfully strangled the complainant;
  2. the strangulation was unlawful. Unlawful here means not justified, authorised or excused by law;
  3. the complainant did not consent;
  4. the defendant and the complainant were in a domestic relationship with each other.

What Is A Domestic Relationship?

The new law targets offences committed against someone with whom the respondent is in a relevant domestic relationship. This includes:

  1. an intimate personal relationship; or
  2. a family relationship; or
  3. an informal care relationship

See Section 13 of the Domestic and Family Violence Protection Act 2012

It also encompasses:

  1. a child of an aggrieved; or
  2. a child who usually lives with an aggrieved; or
  3. a relative of an aggrieved; or
  4. an associate of an aggrieved.

See Section 9 of the Domestic and Family Violence Protection Act 2012

What Is “Strangulation” “Suffocation” Or “Choking”?

Ordinarily, it could be assumed that an action of “strangulation” only encompasses acts that are for a significant or prolonged period of time. This is not the case. Even close to transitory touches to the neck could be construed as strangulation.

By way of example, a recent decision handed down in the District Court sitting in Southport saw an  offender convicted of two counts of strangulation, which lasted three and six seconds respectively.

How Will The Court View This Offence?

A charge of strangulation is a very serious offence, and it is treated as such by the Courts. In its decisions, the Court when handing down penalties have placed a high importance on deterrence, both for the public and for the offender personally.

Recent Queensland decisions such as R v MCW [2018] QCA 241, have seen the Court observe that they treat it so seriously because “this type of offending is recognised as being inherently dangerous and being often predictive of an escalation in domestic offending”.

In the 2018 decision of R v MDB [2018] QCA, Judge McGinnes quoted an earlier decision and observed that:

  • ‘Deterrence, both personal and general, is an important factor in sentencing in domestic violence cases, and so too is denunciation. The community through the Courts seeks sentences which show the public disapprobation of such conduct. The effects of domestic violence go beyond the trauma suffered by victims, survivors and their children to their extended families, and friends. Domestic violence also detrimentally affects the wider community, causing lost economic productivity and added financial strain to community funded social security and health systems.’

Since the introduction of the stand-alone strangulation offence, a report published by Queensland Sentencing and Advisory Council on 22 May 2019, shows that this has directly led to higher sentences being imposed. It is therefore very important to seek legal advice if charged with strangulation.

Can Provocation Be A Defence?

Provocation is only available in relation to “an offence of which assault is an element” pursuant to section 268(1) of the Criminal Code 1899. Because assault is not an element to the offence of strangulation, provocation cannot be used a defence.

What Is The Likely Sentence If Convicted?

Section 315A of the Criminal Code provides a maximum penalty of 7 years’ imprisonment.

Statistics show that between 2016 and 2018, over 76% of offenders charged under this section were sentenced to a term of imprisonment.

Of those offenders who were sentenced to imprisonment for strangulation as the most serious offence, the average sentence was 1.9 years’ imprisonment. The highest sentence imposed in that time was four years’ imprisonment.

It is important to note that of those charged with strangulation as the most serious offence, over 99% pled guilty either initially or at a subsequent date.

Other potential penalties include probation, intensive correction orders, partially suspended prison sentences, and wholly suspended sentences.

Criminal History and Recording of a Conviction

It is likely that a conviction will be recorded on the criminal history of an offender if found guilty of this offence.

In fact, only 1% of matters heard by the District and Supreme Court resulted in no conviction being recorded.

However, the Court does have a wide discretion pursuant to section 12 of the Penalties and Sentences Act. In considering whether or not to record a conviction, the Court will need to have regard to all circumstances of the case, including the nature of the offence, the defendant’s character and age, and the impact that recording a conviction will have on their economic or social wellbeing or chances of finding employment.

What Will The Court Consider At The Sentence?

As no mandatory minimum imprisonment exists for strangulation offences in Queensland, the Court retains a wide discretion for deciding the type of penalty imposed and will consider aggravating and mitigating factors.

Aggravating factors are circumstances which tend to increase the severity or seriousness of the charge.

Examples include:

  • violence of the offence
  • lack of remorse
  • history of domestic violence offences
  • history of breach of domestic violence orders
  • the aggrieved was vulnerable due to age or disability

Mitigating Factors are circumstances which tend to reduce the severity of the offence.

Examples include:

  • early guilty plea
  • remorse
  • rehabilitation attempts after the offence
  • significant physical or mental health issues or low intellectual capacity
  • compliance with any domestic violence order

Pursuant to Section 9(10A) of the Penalties and Sentences Act 1992 ‘in determining the appropriate sentence for an offender convicted of a domestic violence offence, the Court must treat the fact that it is a domestic violence offence as an aggravating factor, unless the Court considers it is not reasonable because of the exceptional circumstances of the case.’

Appearing At Court

If you have been charged with strangulation, or have been the victim of such an offence, our experienced team of solicitors can assist you. We are able to help you to prepare for Court and represent you on the day to obtain the best possible outcome.

If you need to apply for a Domestic Violence Order, or if an Application has been brought against you, we can offer you knowledgeable advice over the phone on your options.

If you want to know more about this charge or speak to a solicitor about your situation and get advice and representation call our office on 07 3229 4459 .

You can also follow the links before for more information on domestic violence and Domestic Violence Orders:

Office Location and Contact Details

Brisbane
Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000
Ph: 07 3229 4459
Fax: +617 3211 9311
E: enquiries@awbrisbanelawyers.com.au