What Does “Choking” Mean in Queensland? A New Court of Appeal Decision Provides Us with a Definition

What Does “Choking” Mean in Queensland? A New Court of Appeal Decision Provides Us with a Definition

On 5 May 2016, an offence of choking, suffocating or strangulation in a domestic setting was introduced in Queensland following a recommendation made by the Special Taskforce on Domestic and Family Violence in Queensland (“the Taskforce”) in their Not Now, Not Ever: Putting an end to domestic and family violence in Queensland report.

In order to prove an offence of choking, suffocating or strangulation, the police must prove (beyond a reasonable doubt) that:

1. the accused choked, suffocated or strangled another person;
2. the above act was done without that person’s consent;
3. the act was unlawful (i.e. that there were no lawful excuses or defences to the offence);
4. the accused was 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 offence of choking, suffocating or strangulation must be finalised in the District Court (whether the accused wishes to plead guilty or not guilty).

The maximum penalty for the offence is 7 years imprisonment.  There is no mandatory penalty for an offence of strangulation in Queensland. Courts retain wide discretion for deciding the types of penalties imposed for defendants convicted of this offence, and (as with all matters) a range of aggravating and mitigating factors are required to be taken into account by the court in the sentencing process.

Because strangulation is an offence involving violence, imprisonment is not a last resort (even for first time offenders). The Queensland Sentencing Advisory Council released a report in May 2019 which revealed that from 2016 to 2018, over 97% of defendants who were convicted of a strangulation offence received a term of imprisonment.  From those defendants, 79% were ordered to serve time in actual custody. During that period, there were only eight defendants who received a non-custodial penalty (all eight received a sentence of probation).

So, there is no doubt that the courts take this type of offending seriously.

Defining “Choking”

The terms “choking”, “suffocation” and “strangulation” are not defined in our Criminal Code. On 17 April 2020, the decision of R v HBZ[2020] QCA 73 was handed down by the Queensland Court of Appeal, and it provides us with a definition of “choking”. The case was an appeal against conviction and sentence.

The trial judge in the District Court provided the jury with an explanation for “choked” in a handout, which read as follows:

“‘Choked’ is an English word that bears its ordinary, everyday meaning – that is – ‘to hinder or stop the breathing of a person’.”

That explanation was repeated in the following oral directions given by the judge to the jury:

“Now you’ll see as I’ve set out there, members of the jury, that choking is an English word that bears its ordinary everyday meaning, that is, in the context here it means to hinder or stop the breathing of a person.”

At the time, these explanations provided to the jury were objected to by the defendant’s lawyer.

During the appeal, the applicant challenged the direction provided to the jury on two grounds. The first was the correctness of the direction. The appellant argued that “choking” means “stopping the breath by internal pressure”.  The second was that the direction was given as if the meaning of “choked” was a direction on the law. Given the word is not defined in the legislation, the applicant contended that it was a matter for the jury to apply the ordinary meaning of the word.

Justice Mullins, in her Honour’s reasoning, identified that the offence exists to deter one domestic partner from choking, strangling or suffocating the other, “because [those acts are] inherently dangerous, and experience shows that if repeated, death or serious injury may eventually result”.

In order to achieve the purpose of the offence, her Honour explained that “chokes” should be construed as:

the act of the perpetrator that hinders or restricts the breathing of the victim and does not require proof that breathing was completely stopped, although the hindering or restriction of the breathing would encompass the stopping of the breathing. The act of choking will not be proved, unless there is some detrimental effect on the breathing of the victim, because otherwise it would not constitute the act of choking. 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[57].

This is now the leading definition of “choking” in Queensland unless the High Court overturns this decision.

** Note: the orders made in R v HBZ with respect to the appeal against sentence were amended in a second judgment released on 22 April 2020: R v HBZ(No 2) [2020] QCA 80.