The offence of choking, suffocation or strangulation (to be “choking” hereafter) is contained in section 315A of the Criminal Code Act 1899.
The section states:
(1) A person commits a crime if—
(a) the person unlawfully chokes, suffocates or strangles another person, without the other person’s consent; and
(b) either—
(i) the person is in a domestic relationship with the other person; or
(ii) the choking, suffocation or strangulation is associated domestic violence under the Domestic and Family Violence Protection Act 2012.
The penalty is a maximum of 7 years imprisonment.
Meaning of Choking, Suffocation, or Strangulation
The Queensland Court of Appeal has held that the act of choking requires that the defendant hinders or restricts the breathing of the complainant. The choking does not require proof that breathing was completely stopped, and the choking requires some detrimental effect on the breathing of the complainant.
A Supreme Court Justice has said, “Even if the restriction of the breathing, as a result of the action of choking the victim, is of short duration, without any lasting injury and does not result in a complete stoppage of the breath of the victim, that will be sufficient, as the offence is directed at deterring that type of conduct from occurring at all.”
It will not be enough, however, for the defendant to “merely put his or her hands to the neck of the victim.”
Possible Defences
No Domestic Relationship
This offence only occurs in the context of a domestic relationship. A domestic relationship is defined under section 13 of the Domestic and Family Violence Protection Act 2012 as:
(a) an intimate personal relationship; or
(b) a family relationship; or
(c) an informal care relationship.
This will cover every family relationships, even if the family relationship is not by blood. It will also cover many sexual relationships, but possibly not a casual sexual encounter.
Therefore, it would be a defence to this charge if the evidence showed there was no domestic relationship between the complainant and the defendant.
It is important to note that this charge does not apply in situations where the person choked is a stranger or friend to the defendant. In that case it would likely be a charge of assault or grievous bodily harm, depending on the extent of the injuries to the complainant.
If the jury found there was not a domestic relationship between the defendant and the complainant, then the jury would be obliged to find the defendant not guilty based on the prosecution being unable to prove the charge.
Self-defence
Self-defence is available. The action of choking would have to be proportionate to the threat or violence experienced by the defendant.
To use a clear-cut example, if the complainant was coming at the defendant with a knife and defendant stopped the attack by choking the complainant, this would be an argument for self-defence as it would seem proportionate to the threat the defendant experienced at the time.
To use a different example, if the complainant had slapped the defendant to the face, and the defendant responded by choking the complainant, it is unlikely this would hold up as a defence as the defendant’s was an unreasonable/disproportionate response to the violence/threat.
If a jury was to find the defence of self-defence applied, then the defendant would be acquitted or found not guilty of the offence.
Provocation not a defence.
The law states that “assault” is not an element of the offence, the main point which flows from this is that the defence of provocation is not available to someone who commits a choking offence. Put another way, the defence of provocation is only available as a defence for offences which have “assault” as an element of the offence. This includes common assault, assault occasioning bodily harm, and serious assault.
The choking did not happen.
It is a defence to the charge if it did not happen. This defence might be used when the defendant argues the complainant simply made up the allegation. The defence is more likely to succeed if there are no photographs of injury to the neck or there was no “recent complaint” – i.e., the complainant goes to the police to make the allegation weeks or months later.
Another argument could be that there was some violence, but it was not choking. For example, the complainant was grabbed roughly by the shoulders or hands were placed on his or her neck, but the breathing was not restricted.
Alternate charges
Defence lawyers can write to the prosecution and argue that a charge of assault occasioning bodily harm or common assault should be in place of a choking offence. This will sometimes succeed if it is ambiguous whether the complainant’s breathing was actually restricted, or there has been a push on the neck or touching of the neck rather than a restriction of breath.
Court which will hear the case
This offence is classified as an ‘indictable offence’, which means it will only be heard in the District Court or (in some situations, if certain other charges are present) the Supreme Court. Although it will start in the Magistrates Court, this will only be for the ‘committal’ process, and it will eventually be transferred to a higher court. This means any trial will be heard by a judge and jury, and proceedings will generally take longer to conclude than if it remained in the Magistrates Court.
Bail
The offence of choking is designated as a “show cause” offence according to section 16 of the Bail Act 1980. This means a person charged with this offence will (usually) not be granted bail by police, and will then need to make a bail application to the court to be released from custody. The defendant would be required to “show cause” to a court why his or her detention in custody (pending resolution of his charge) is not justified.
Usual Penalties
This offence is considered to be very serious by the courts and the parliament. As such, the most common outcome is the defendant spends some time in prison. The explanatory notes for the legislation introducing this charge stated “The new strangulation offence and the significant penalty attached, reflect that this behaviour is not only inherently dangerous, but is a predictive indicator of escalation in domestic violence offending, including homicide.”
Generally, sentences for choking offences can range from approximately 2 to 4 years imprisonment, depending on the seriousness of the violence and the criminal history of the offender. There are cases where the sentence is less than 2 years, although these cases are exceptional. There are also cases where the sentence is longer than 4 years, but these cases generally deal with more than one offence.
Offenders will ordinarily be required to serve a third of the sentence in actual jail if it was a plea of guilty, or serve half or more of the sentence in jail if it was a trial and a plea of not guilty. In rare cases, an offender will serve no time in jail, even though the “head sentence” is 2 years.
It is clear then, that an offender should generally expect to spend some time in jail for a conviction for this offence.
Conclusion
If you are charged with this offence, or police wish to interview you for such an offence, Clarity Law can help. We are experts in criminal and traffic law; it is all we do. With our reasonable fees, expert advice and experienced representation, we will give you a fighting chance should you ever have the misfortune of having to deal with a choking allegation.
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