As of May 5, 2016, it is an offence in Queensland to choke, strangle or suffocate a person in a domestic setting. This comes at the recommendation of the Special Taskforce on Domestic and Family Violence in Queensland. The purpose of such an offence is to prevent what has been referred to as the ‘last warning shot’ in domestically violent relationships and aims to reduce the number of domestic homicides.
Under s 315A of the Queensland Criminal Code, the Prosecution must prove, beyond reasonable doubt that the choking, suffocation or strangulation was done without excuse, and without the consent of the complainant. To be considered an offence under s315A, the complainant and the accused must be in an intimate personal relationship, family relationship or an informal care relationship considered to be ‘domestic’. The aggrieved may be a romantic partner, relative or child of the defendant.
Choking is yet to be defined in legislation, however in case law it has been described as an act that hinders or restricts breathing. It does not need to stop the breathing completely. As assault is not an element of the offence, it need not be proven that any injury or death was caused or intended.
As this offence is of a more serious nature, the matters will be heard in the District Court, rather than the Magistrates Courts.
The maximum penalty for this offence is seven years imprisonment. In the years since the offence was introduced, 97% of those found guilty of the offence, have received imprisonment as their penalty. Although there is no mandatory penalty, the average imprisonment sentence handed down for this offence is 1.8 years. Most sentences will be aggravated or mitigated depending on the circumstances of the case. In some cases, a breach of a domestic violence order has increased the sentencing a defendant can expect to receive.
There are defences available to the defendant for the offence. They include self-defence, duress and intoxication. However, provocation is not a defence due to the nature of the offence and what may constitute ‘provocation’ in a domestic relationship. If you believe that you have a defence against the offence, the prosecution will have the onus to prove that you were not acting in self-defence or under duress.
A bill has recently been introduced to parliament that proposes to increase the maximum penalty to 14 years imprisonment and provide clarity on the definitions of choke, strangle or suffocate. Should the bill pass, the definitions for the offence will be as follows:
Choke/Strangle: apply pressure to the person’s neck
Suffocate: to obstruct, interfere with or impede a person’s respiratory system or accessory system of respiration.
If you have been charged with the offence of domestic choking, suffocation or strangulation, it is advised that you seek legal advice as soon as possible. Should you be offered the chance to be interviewed by the police, it is in your best interests to exercise your right to remain silent and contact a lawyer.
As a leading criminal defence law firm, Russo Lawyers has the experience and dedication to ensure you know your rights and are adequately represented, please contact us today for an initial consult.