Strangulation, Suffocation or Choking
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.
What the police must prove
In order to prove an offence of choking, suffocating or strangulation, the police must prove (beyond a reasonable doubt) that:
- the accused choked, suffocated or strangled another person;
- the above act was done without that person’s consent;
- the act was unlawful (i.e. that there were no lawful excuses or defences to the offence);
- 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.
What does “strangulation”, “suffocation”, and “choking” mean?
The terms “choking”, “suffocation” and “strangulation” are not defined in our Criminal Code.
Given that the offence is a relatively new one, there have not been many Court of Appeal decisions which help us define these terms.
“Choking” was defined in R v HBZ [2020] QCA 73 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].
Which court hears the offence of strangulation or choking?
The offence of choking, suffocating or strangulation must be finalised in the District Court (whether the accused wishes to plead guilty or not guilty).
If I am convicted of strangulation or choking, what penalty will the court impose?
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.
The complainant provoked me to attack them. What should I do?
There are a number of possible defences that can be raised by people charged with grievous bodily harm. Some of these include:
- Self-defence
- Duress
- Intoxication
Provocation, however, cannot be raised as a defence for strangulation or choking.
If you believe there may be a defence available to you it is always advisable to speak with a solicitor about your chances of success and strategies in raising your arguments.
The complainant attacked me. What should I do?
Self-defence is an excuse/justification in Queensland to strangulation or choking. This means that if your matter proceeds to trial, if available and provided there is some evidence in support of that, the prosecution must prove that you were not acting in self-defence.
If appropriate, we can negotiate with the prosecution and write a submission on why they will fail to disprove that you were acting in self-defence. If accepted, the charges against you may be discontinued. If the prosecution do not accept our submission, the matter can proceed to trial, where a judge or jury will determine whether the prosecution are able to disprove self-defence.
What do I do if police ask me to come in and speak with them about a grievous bodily harm charge?
It is important to remember your right to silence (see our “your rights” page for more information).
If you decide to speak with police there is a real risk that you may unintentionally provide them with evidence that can be used against you, or that allows them to charge you with a more serious offence or additional charges.
Our advice to clients is always to be cooperative and respectful with police but to exercise your right to silence when they ask you questions. You should speak with a lawyer as soon as possible after police contact you.
How will a lawyer help me with my strangulation or choking charge?
There are a number of benefits to engaging a lawyer to act for you on your strangulation or choking charge. Our solicitors are highly experienced in these matters and can provide you with:
- Expert advice about the strength of the prosecution’s case and your prospects of successfully fighting the charge.
- A representative who can attend court on your behalf (and save you from having to attend and speak for yourself on every court date).
- Years of experience in successfully negotiating with prosecution on our clients’ charges.
An experienced court room advocate who can effectively present your case and submit to the court relevant, persuasive information designed to minimise your penalty.
The Criminal Lawyers at Potts Lawyers have the experience necessary to deal with Affray charges and other Assault & Violent Offences. Contact us for more information about how we can defend you.