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Choking, Suffocation Or Strangulation in a Domestic Setting

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Under s 315A of the Criminal Code 1899 (Qld), 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 DFVPA).

The offence of choking in a domestic setting carries out a maximum penalty of 7 years’ imprisonment. there is no mandatory minimum penalty for the offence in Queensland, and the court retains a wide discretion to decide the type of penalty imposed. However, choking is taken very seriously by the court, and the penalty imposed will reflect the nature and seriousness of the offence.

Elements

To establish the offence of choking, suffocation or strangulation in a domestic setting, it must be proven that:

• the defendant choked, suffocated or strangled the aggrieved person;
• the choking , suffocation or strangulation was unlawful (meaning that it was not justified, authorised or excused by law);
• the aggrieved person did not consent; and either:
  • the defendant and the aggrieved person were in a domestic relationship with each other; or
  • the choking, suffocation or strangulation is associated domestic violence.

Definition of ‘choking’

For the purposes of the offence, a person chokes, suffocates or strangles another person by applying pressure to that person’s neck that restricts the other person’s respiration, blood circulation, or both. The act of choking does not need to occur for a long time or to cause any lasting injury.

Although it does not need to be proven that a person’s breathing was completely stopped, it is not enough for the person to merely put his or her hands on another person’s neck; there must be some pressure that results at least in the restriction of a person’s breathing.

Domestic relationship

A domestic relationship may be:

• an intimate personal relationship (meaning a relationship between two spouses, two parents of a child, two people engaged to be married to each other, or two people who are in a couple relationship);
• a family relationship (meaning the relationship between two relatives, whether they are connected by blood or marriage); or
• an informal care relationship (meaning a relationship where one person is dependent on the other for help in an activity of daily living).

Associated domestic violence

Associated domestic violence is domestic violence committed by a respondent towards:

• a child of an aggrieved;
• a child who usually lives with an aggrieved;
• a relative of an aggrieved; or
• an associate of an aggrieved.

Indictable offences

Choking, suffocation or strangulation in a domestic setting is an indicatable offence. This means that it cannot be dealt with summarily in the Magistrates Court and must go through a committal hearing to be dealt with generally in the District Court.

Domestic violence offence

Choking, suffocation or strangulation in a domestic setting is a domestic violence offence. Domestic violence offences are offences which involve abusive, threatening, coercive, dominating, or controlling behaviour between two people who are in a domestic relationship.

The fact that choking is a domestic violence offence must be treated as an aggravating factor by courts unless exceptional circumstances apply (for example, where the victim of choking has previously committed one or more acts of domestic violence towards the offender). This does not change the maximum penalty for the offence, but it does mean that the court must impose a harsher sentence than it otherwise would have.

Sentencing considerations

Choking is treated by the court as a particularly serious domestic violence offence for which general deterrence is an important sentencing consideration. Recent Queensland sentencing decisions such as R v MDS [2023] QCA 228 have reflected growing recognition of the correlation between choking and escalating domestic violence, potentially leading to homicide:

• “s 315A of the Code was enacted to deter a type of offending that was viewed as a precursor to offending with much greater consequences for the victims, including death. That the offending may be committed over a very short period of time will frequently be a characteristic of this offence.

• The deterrent aspect of sentencing for this offence is not just directed at the offender being sentenced, but more generally, in an attempt to eliminate the dangerous conduct of one domestic partner choking, suffocating, or strangling the other that can easily result in fatal or lasting consequences.”

Although assault is not an element of choking in a domestic setting, a person may be convicted of assault as an alternative to the offence of choking.

The recent District Court decision of R v KAB [2024] QDCSR 427 concerned a defendant who violently attacked a women by placing both of his hands around her throat and pressing his thumbs against her windpipe. The defendant was convicted of common assault, but was not charged with the offence of choking because the victim’s breath had not been restricted.

Here to Help

If you have been charged with choking, suffocation or strangulation in a domestic setting, our experienced team of criminal solicitors can assist you.

If you need to apply for a domestic violence order, or if an application has been brought against you, we can offer you expert advice on your options.

Aitken Whyte Lawyers are focused on results. We appear in all courts across South East Queensland. Our lawyers can assist with all criminal law matters.

Call Aitken Whyte Lawyers Brisbane on 07 3229 4459 for:

• guidance through the court process;
• legal advice on your options or prospects; and
• representation in court.

You can also follow the links below for more information on domestic violence and domestic violence orders.

Further information

Our Brisbane lawyers have answered some common questions below:

What is Domestic Violence in Australia?

Who Can Apply for A Domestic Violence Order?

Who is the Aggrieved and Who is the Respondent? Who Else Can the Order Include?

When Will the Court Grant an Application for A Domestic Violence Order?

What Conditions Does A Domestic Violence Order Impose?

What Options Does A Respondent to An Application for A Domestic Violence Order Have?

What is A Temporary Protection Order (TPO)?

How Long Does A Domestic Violence Order Last?

Can You Apply to Vary A Domestic Violence Order?

What Happens If You Breach A Domestic Violence Order?

What If You Have Family Court Orders or Proceedings Before the Family Law Courts?

Will A Domestic Violence Order Revoke Your Weapons Licence?

Should You Consider Written Parenting Arrangements?

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