Clarity Law

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.

How do I get more information or engage Clarity Law to act for me? 

If you want to engage us or just need further obligation free information or advice then you can either;

1. Use our contact form and we will contact you by email or phone at a time that suits you
2. Call us on 1300 952 255 seven days a week, 7am to 7pm
3. Book a time for us to call you
4. Email This email address is being protected from spambots. You need JavaScript enabled to view it.

Fines are the most common penalty imposed by the Queensland Courts for criminal matters. They are used to punish criminal offences, traffic offences, and regulatory breaches.

Fines can be imposed for offences as wide ranging as assault, producing drugs and possessing weapons. It all depends, like other penalties, on the circumstances of the offence, the circumstances of the defendant, and the defendant’s criminal or traffic history.

The size of the fine will depend on the how serious the court considers the offence. For example, a low range drink driving offence might attract a fine of around $350, while a corporation breaching workplace safety regulations could be fined tens of thousands of dollars.

If a court punishes you by imposing a fine and no other penalty, it has the discretion to not record a conviction.

A fine will not be appropriate for the more serious types of offences, such as drug trafficking, sexual offences, and home burglaries.

Compensation and Restitution

Compensation and Restitution function like fines, but they are for a different purpose than punishment.

Compensation is usually ordered where the defendant has committed a violent offence against someone. The compensation will be a monetary amount. Its purpose is to compensate the complainant for the personal injury suffered because of the defendant’s actions.

Restitution is ordered for the purpose of restoring the complainant to the position they were at before the offence was committed. For example, if the defendant damaged property, they may have to pay restitution according to the cost of the property damaged or the cost to repair the damage.

Offender Levy

The offender levy is separate from any fine the court may impose.  It is a levy imposed for all adults who plead guilty or found guilty.  The levy is meant to pay the cost of law enforcement and administration.

Ways to Pay

The most usual way for someone to pay a court-imposed fine is for it to be referred to the State Penalty Enforcement Register (“SPER”) . This is a government body separate from the courts which enforces the payment of fines. You will be able to enter into a pay arrangement to pay fines off over time, according to your financial circumstances.

There are also time-to-pay arrangements. That is where the court gives you a specific deadline by which you must pay the fine.

What happens if you don’t pay

SPER has the power to enforce the debt.  In order to enforce the debt SPER might

1. Suspend your drivers licence
2. Take the money from your bank account
3. Immobilize your motor vehicle
4. Seize property

I have had recent cases which has shown the, at times, confusing aspects of domestic violence orders in Queensland. These cases have motivated me to provide some additional points which I did not include in my original article: The Ultimate Guide to Breaching a DVO.

How Do I Know If I Am Breaching My DVO?

The easiest way to figure out what would constitute a DVO breach is to read the order itself. There are three types of orders:

1. A Police Protection Notice
   1. This is an order police can make if police believe a person is in need of protection and this police protection notice is necessary and desirable to protect that person.
   2. It is an offence punishable by a maximum of 3 years to breach one of these orders.
2. A Temporary Protection Order.
   1. This is an order which a court may make if the Court is satisfied of a relevant relationship between the aggreived and respondent and, the Court’s view is the respondent has committed domestic violence against the aggreived. It only lasts until a Domestic Violence Order is made or the (DVO application) proceedings otherwise end.
   2. It is an offence punishable by a maximum of 3 years to breach one of these orders.
3. A Domestic Violence Order.
   1. The Court may make this order, often for a period of 5 years, if the Court is satisfied of a relevant relationship between the aggreived and respondent and, the Court’s view is the respondent has committed domestic violence against the aggreived, and the order is necessary or desirable to protect the aggreived from domestic violence.
   2. It is an offence punishable by a maximum of 3 years to breach one of these orders. The maximum penalty increases to 5 years if, within 5 years beforehand the defendant has been previously convicted of a domestic violence offence.

Bear in mind, even if you do not agree with the order and even if it is a “Temporary Protection Order”, the conditions still carry equal legal force compared to a “Domestic Violence Order” which is the final order.

Protection Orders Serve an Important Social Function

As I am about to make some comments which may appear to be critical of protection orders and the prosecution of DVO breaches, I wish to make it clear that I am in no way denying that there are cases where people need protection and that protection orders are an important way of doing so. I acknowledge police have a difficult and unenviable job in investigating and prosecuting domestic violence allegations. I am certainly not attempting to make excuses for domestic violence abusers, far from it. What I am trying to do is give helpful guidance and tips in what can be a confusing area of the criminal (and by necessary overlap, civil) law.

Can I Breach a DVO if I Didn’t Agree to It?

Absolutely. A “temporary protection order” is routinely made while the parties wait for a final decision on the order to be made. This can often result, from the defendant’s perspective, in unfair outcomes.

We had a recent client who disputed the order all the way along to a “hearing” (or trial), in the belief he had not committed domestic violence (he wasn’t a client at the time). Even though the magistrate accepted the conduct did not appear to be threatening or violent, he still made a domestic violence order for two years anyway, placing severe restrictions on the contact our client could have with his children and in what circumstances.  

Then, our client appealed the decision to the District Court, arguing that he didn’t get a fair hearing. The District Court agreed with him and ordered for the domestic violence order to be heard by a different magistrate. Despite all of this, our client was still restricted by a temporary domestic violence order the entire time. The process took over a year. And yet the whole time, he still had to abide by the conditions of the order.

We see people make this mistake a lot, so we need to make it as clear as possible: even if you disagree with the order, you still have to abide by the order, even if you haven’t had your say in court yet. The standards of evidence are very different compared to criminal cases, and every day of the week magistrates are making temporary orders based on only one side of the story, usually written down in a form.

How Can I Be Charged with Breaching a DVO When I Wasn’t Violent or Threatening?

Even though the overriding purpose of these orders is to protect people, once an order is made, it can be very restrictive. It can kick people out of their homes, prevent them from going near their children, contacting someone, or even posting something on social media that might in some way refer to a person protected by the order.

A lot of people get tripped up by this.

So, understand you can still breach a DVO even if your actions were in no way violent or threatening. We had a client who, as part of the order, was allowed to telephone his daughter on certain days of the week. One week, he slipped up and called on the wrong day. That was charged as a breach.

We had another client, who accidentally sent an email to his ex, instead of his accountant. Because he was only allowed to contact the ex to make child arrangements, that was charged as a breach.

Once an order in place, the point is not only about domestic violence; it is also about controlling the actions of the person with the order on them.

We emphasise again, it is very important for a person who is restricted by an order to know exactly what the restrictions are.

How Do I Know What I Can and Can’t Do Under a DVO?

There is generally one of two ways. If an order was made in court and you were present at the time, then the magistrate will have explained the conditions to you. However, we do recognise it is usually hard to take in the information when you are on the spot in a court environment.

The other way you know what you can and can’t do is by reading a written copy of the order. The words used can be unfamiliar and unusual, but it is important to try and understand as best you can. If there is anything on the order you simply cannot get your head around, we recommend you seek the advice of a lawyer. The conditions of DVOs can sometimes be long and convoluted, but understanding exactly what the conditions are is the best way to protect yourself from being charged.

Is a Breach of a DVO Serious?

This is another thing people get tripped up on. You might think a particular breach is not serious (sending a text saying “hey”, or waving to your ex when you see her down the street) and would therefore not be treated seriously by a Court. This is incorrect. Once a court order is made (which is what temporary protection orders and domestic violence orders are), then any breach is to defy the Court’s authority. This is an important point to understand. Courts protect their authority rather fiercely. There are good reasons for this. If people think they can just ignore Court Orders and face no serious consequences, then it makes a mockery of the justice system. So, the Courts need to treat breaches of DVOs seriously. Repeated breaches, even if they are text messages trying to repair a relationship, can still lead to someone going to jail if the breaches are too numerous and persistent.

But I Didn’t Breach, The Other Side is Just Making Things Up!

If this is your situation, and it does happen, then you need to get some legal advice. We find it is rare that a breach is completely fabricated, usually there is something the accused has done, no matter how insignificant, that has been twisted into a breach. You need to be the judge of what the other person is likely to do. Will they try to breach you on something small? Will they try to entice you to interact with them and then go running to the police? If this is who you are dealing with, then you need to find a way to move on, or make sure absolutely every (legal) interaction is in writing.

Some Further General Tips

• Even if there has been abuse from both sides of the relationship, the police operations manual specifically instructs police not to apply for “cross-orders”. That means police will pick a side and apply for an order for one side only.
• The legislation specifically says a person protected by a DVO can’t be charged with an offence of aiding and abetting a breach of the DVO. This means a person will not be charged with an offence or get into trouble in any way, even if they told you that you could visit them or they have been bombarding you with phone calls and text messages.
• Although it is an unnatural way of communicating, if there is an exception in the DVO allowing you to contact the other parent of your child or children to make child arrangements, you must not stray from the subject of making child arrangements whatsoever when contacting the protected person. We routinely see people breached for pushing the boundaries of these exceptions, even a little.
• Even if you think you can prove the other side has lied to police or has done the wrong thing to you, do not expect the police to do anything about it. Once there is a DVO on you, all the police care about is whether you have breached it or not. They have very little interest in your side of the story. If you want to tell your side, tell a lawyer or the Court.
• Don’t yell at or abuse police. They have a difficult job to do, and you only make things harder on yourself by trying to get into a debate with them. Trust us when we say, the police never back down from someone challenging them verbally or physically.
• Sometimes, people think that police will drop the charges if the protected person goes to police and says they want to change their statement or withdraw the charge. Take it from us; the police won’t. Equally, it is rare for police to withdraw a DVO application just because a protected person says they do not want it.

Conclusion

I trust this further information has been of some help in understanding this area of the criminal law. If you are in trouble for breaching a DVO and need some expert advice, give our office a call and we will support you to navigate through this difficult time.

If it is a traffic matter, you probably cannot.

If it is a criminal matter, you can, but in many circumstances may not want to.

What is a duty lawyer?

A lawyer who assists people at Magistrates Courts some days of the week, for no fee. The duty lawyer service is funded by Legal Aid Queensland. Employees of Legal Aid Queensland  or solicitors from firms that Legal Aid cases, serve as duty lawyers. Duty lawyers will provide legal advice and will sometimes provide representation in court. A duty lawyer can appear for simple pleas of guilty (for criminal matters) and adjournments.

Why can’t I use a Duty Lawyer for a Traffic Matter?

Magistrates Courts allocate different types of cases to different days of the week, such as: general criminal matters on a Monday, traffic matters on a Tuesday, Children’s Court matters on a Wednesday, and domestic violence applications on a Thursday.

Legal Aid Queensland will not fund a duty lawyer service for days when only traffic court is held, this is because Legal Aid’s guidelines direct that a duty lawyer is not to assist a person with a traffic matter unless the defendant is at risk of imprisonment. Even then, a duty lawyer will frequently decline to represent a person who is at risk of imprisonment, recommending instead that the defendant gets their own lawyer, who can then prepare the case properly.

Why shouldn’t I use a Duty Lawyer for a Criminal Matter?

Duty lawyers are professional and caring but they are busy. I have provided duty lawyer services in the past, and I considered it a good day if the number of cases I dealt with was only 10. A duty lawyer does not have much time to spend with you on your case, as time must be managed between many people. Generally, I would allocate about 10 to 15 minutes per person to look at their case and give them some rough advice.

Another reason is duty lawyers vary in experience. There are many fine duty lawyers, but equally, Legal Aid’s guidelines only require a minimum of 6 months’ criminal law experience before a person can become accredited as a duty lawyer (traffic law experience is not a requirement).

What are the Advantages of Using a Duty Lawyer?

• If you did not already have a lawyer and you were nervous about asking for an adjournment by yourself, then a duty lawyer would be helpful for that purpose.
• If you have a multi-page criminal history, you may not be concerned about ‘adding one to the pile.’
• It is a free service.

What are the Advantages of Using Clarity Law?

• Our lawyers give your case the personal attention that a duty lawyer does not, by necessity, have time for. We speak with you before court, appear with you at court, and explain everything after court. We are your personal guide through the court system.
• We work on a fixed fee basis. There is no confusion around what you are getting for your money.
• All our lawyers have at least six years’ experience in traffic law and criminal law.
• Our legal expertise leads to great outcomes:
  • o Minimum disqualifications,
  • o No convictions recorded,
  • o Perfect success rate for special licence applications,
  • o Low fine and other penalties.
• We have many 5-star reviews; see our Brisbane office and our Sunshine Coast office. We think that’s a good sign.

Conclusion

Having been a duty lawyer, I can say from experience that it is unlikely a duty lawyer (if available) will assist you with a traffic matter and may not be the best choice for resolving a criminal matter. There is too much at stake to rely on a duty lawyer, even for a ‘minor’ offence, and our strong recommendation is for you to seek personal legal representation.

How do I get more information or engage Clarity Law to act for me? 

If you want to engage us or just need further obligation free information or advice then you can either;

1. Use our contact form and we will contact you by email or phone at a time that suits you
2. Call us on 1300 952 255 seven days a week, 7am to 7pm
3. Book a time for us to call you
4. Email This email address is being protected from spambots. You need JavaScript enabled to view it.

There are various offences of assaults, which are created by section 340 of the Criminal Code. This article concentrates on serious assaults under Queensland Law.  To make an assault ‘serious’, a person must commit an ‘assault’ within one of nine categories.

What is ‘Assault’?

Many people think assault is a straightforward matter. Either you have struck someone or you have not. However, the criminal definition of assault is more complicated.

‘Assault’ is defined in the Criminal Code to mean: ‘A person who strikes, touches, or moves, or otherwise applied force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person.’

In other words, an assault can be committed by a minimal use of force, or no use of force at all, if a threat to do so is made with the apparent ability to carry out the threat.

Is it complicated enough yet? It is about to be.

What is ‘Serious’?

There are nine categories of serious assaults, which can have different maximum penalties depending on further categories.

To make an assault ‘serious’ a person must commit an assault in the circumstances below:

1. The assault is with intent to commit a crime, or with intent to resist or prevent arrest or detention of himself or herself or any other person.
2. The person assaults, resists, or obstructs a police officer who is doing their job, or anyone who is helping a police officer who is doing their job.
3. The person assaults anyone who is performing a duty imposed on them by law.
4. The assault is because someone has performed a duty imposed on them by law.
5. The assault occurs while pursuing a conspiracy concerning any manufacture, trade, business, or occupation, or respecting any person concerned with any manufacture, trade, business, or occupation, or the wages of any such person.
6. Assaults someone who is 60 years old or more.
7. Assaults someone who uses a wheelchair, assistance dog or remedial device.
8. A prisoner assaults a prison officer.
9. Assaults, or resists or wilfully obstructs, a public officerwhile the officer is performing a function of the officer’s office or assaults a public officer because the officer has performed a function of the officer’s office. A ‘public officer’ is someone who is a health service employee, or authorised officer under the child protection Act, or a public transport transit officer.

The person must have committed an ‘assault’ in all categories except categories 2 and 9, which may be only resisting or obstructing a police or public officer.

Maximum Punishment

For categories 1 to 9, the punishment is a maximum of 7 years.

However, for categories 2, 8 and 9, if a police, prison or public officer is assaulted in circumstances where:

1. the offender bites or spits on the officer or throws at, or smears on, the officer a body fluid or faeces,
2. the offender causes bodily harm (bodily harm means causing greater injury than pain alone),
3. the offender is or pretends to be armed with a weapon.

The punishment is 14 years maximum.

A public officer is someone who is a health service employee, and authorised officer under the child protection Act, or a public transport transit officer.

Possible Defences

• Identification—as with any case, if it was not you who committed the offence, then you cannot be guilty of it.
• Self defence—if you were defending yourself, or someone else, then even if you did commit an assault, it may be lawful. Note, assaulting an officer in the lawful execution of his or her duty will exclude self defence as an option.
• Provocation—if you are provoked (see provocation explained in greater detail here)
• Accident—although a difficult defence to run, if it can be shown the assault was genuinely an accident, and not foreseeable as a possible consequence of your actions, it can be a defence.

For greater detail concerning these defences, speak to one of our experience lawyers or visit our article on defences to an assault charge.

What Court Will to be Heard In?

A serious assault, by default, will be heard in the District Court. The prosecution, however, has the power to decide whether a serious assault should be heard in the Magistrates Court instead. In the writer’s experience, the prosecution does usually decide to have these matters heard in the Magistrates Court unless it is an exceptionally violent serious assault. 

Likely Punishments

The Supreme Court has made plain that offenders who are guilty of serious assaults in the more serious circumstances—where the punishment is 14 years max—should generally be sentenced to imprisonment. This does not always mean imprisonment in actual gaol, as a suspended term of imprisonment may also be an option.

The sentencing principle of ‘general deterrence’ is an important consideration. General deterrence is the idea of sentencing someone so as to deter others who may be inclined to do the same. In cases such as these, the more severe the assault, the more severe the punishment is likely to be.

Conclusion

Although there are multiple categories of serious assault, in the writer’s experience the most commonly committed are in relation to police officers or people over the age of 60.

Needless to say, if you are charged with a serious assault of any description, you need a lawyer. We at Clarity Law know the judges, the cases and the law. We are to advise on likely punishments or whether there are viable defences or the ability to negotiate with the prosecutor for a lessor charge.

How do I get more information or engage Clarity Law to act for me? 

If you want to engage us or just need further obligation free information or advice then you can either;

1. Use our contact form and we will contact you by email or phone at a time that suits you
2. Call us on 1300 952 255 seven days a week, 7am to 7pm
3. Book a time for us to call you
4. Email This email address is being protected from spambots. You need JavaScript enabled to view it.

Every person charged with a criminal offence has to, at some stage, make a difficult decision; to plead guilty or not guilty?

This guide proposes to concentrate of some of the things a defendant should consider when they are deciding whether to plead guilty or not guilty to a criminal charge. Traffic offences will not be included.

Pleading guilty to a criminal offence can have serious consequences for a defendant. So how to make the difficult decision?