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 maximum penalty that can be imposed by the Court is seven years.
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.
The prosecution must prove that:
The new law targets offences committed against someone with whom the respondent is in a relevant domestic relationship. This includes:
See Section 13 of the Domestic and Family Violence Protection Act 2012
It also encompasses:
See Section 9 of the Domestic and Family Violence Protection Act 2012
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.
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:
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.
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.
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.
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.
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:
Mitigating Factors are circumstances which tend to reduce the severity of the offence.
Examples include:
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.’
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:
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?
What Is the Offence of Choking, Suffocation, Or Strangulation in A Domestic Setting?
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Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000
