Appendix C

Cases of prosecuted strangulation in a family violence context

Prosecuted cases
Charge Case Relationship between offender and victim Nature of strangulation and other conduct Evidence of injury Loss of consciousness caused by strangulation Threat to kill or other expression of intention to harm Sentence (starting point (SP) and end sentence (ES)
Causing grievous bodily harm with intent to cause grievous bodily harm (Crimes Act, section 188(1) – maximum penalty 14 years’ imprisonment). R v Grant DC Dunedin CRI-2011-212-193, 2 July 2012. Victim was defendant’s girlfriend. Defendant put victim in choker hold twice, put hand over her mouth and forced her head under bath water.

Attack also involved other serious violence, including biting, eye gouging, stomping and stabbing with comb.
Yes – “Significant bruising to both eyes and around the neck – shortly after the attack, show extreme bruising which must have been attributable to the choker holds”. Yes. No. SP: 8 years’ imprisonment.

ES: 4 years and 4 months’ imprisonment (after 45% discount for youth and guilty plea).
Injuring with intent to cause grievous bodily harm (Crimes Act, section 189(1) – maximum penalty 10 years’ imprisonment). R v Singh [2015] NZHC 1641.

Defendant also charged with threatening to kill.
Victim was defendant’s wife. After knocking victim unconscious with cricket bat, defendant began strangling “to the point where … her tongue hung from her mouth and her eyes rolled back in her head”. Yes – sore neck. No – loss of consciousness caused by prior assault with bat, but strangulation committed while victim unconscious. Yes – “I’m going to kill you tonight”. The defendant also told an intervening flatmate not to help the victim, but to let her die. SP: 4 years’ imprisonment.

ES: 3 years and 6 months’ imprisonment.
R v Pene DC Whangarei CRI-2011-029-1419, 25 September 2012. Victim was defendant’s partner. After punching the victim on the legs and face, the defendant “grabbed her by the throat and started to strangle her to the point where she could not breathe. Finally, you pinned her by your knees on her shoulders and punched her to the back of the head and again grabbed her by the throat squeezing it so hard that it caused obvious physical alteration to her facial features. It caused her, once you let her finally go, to vomit.” Yes – “extensive bruising to chin”. No. No. SP: 2 years and 8 months’ imprisonment.

ES: 2 years and 3 months’ imprisonment (discount applied in part in recognition of mental health issues).
R v Vitali [2014] NZHC 49. Defendant and victim in some form of relationship. Defendant hit victim in the head, punched her ribs and then put his belt around her neck, dragged her across the gravel and twisted the belt until the victim’s jaw broke. When the victim thought the attack was over, the defendant forced her head under water as she tried to clean her face. The victim required surgery. Yes – victim’s jaw broke and she required surgery and metal plates. No. No. SP: 6 years and 6 months’ imprisonment.

ES: 5 years and 6 months’ imprisonment with 3.5-year minimum period of imprisonment.
R v Barrett [2008] NZCA 474. Defendant and victim in some sort of relationship. In the course of an attack that included hair pulling, kicking and using a rod to strike the victim, the appellant attempted to throttle her, in the knowledge she had suffered an earlier brain injury. Yes – mark on the neck. Not recorded. No. ES: 6 years’ imprisonment.
Injuring with intent to injure or with reckless disregard for the safety of others (Crimes Act, section 189(2) – maximum penalty 5 years’ imprisonment). Kimiora v R [2015] NZHC 1940. Victim was defendant’s former partner. Victim awoke to find the defendant had (unlawfully) entered her home as she slept, had his hands around her throat and was trying to strangle her. That continued for a brief time before the defendant stood up and put his foot across her throat and then kicked and punched her in the arms and legs. Unclear, although “reasonably significant bruising” caused by the kicking and punching. Not recorded. No. SP: 20 months’ imprisonment.

ES: 10 months’ home detention.
Smith v R [2014] NZHC 3033. Victim was defendant’s girlfriend. The defendant wrapped an arm around the victim’s throat and strangled her “almost to the point of unconsciousness”. The victim ran free but the defendant strangled her in the same way a second time, and she lost consciousness. Yes – haematoma to left eye; haemorrhaging in both eyes and bruising to face, throat and body. The Court recorded that “There was medical evidence that jugular vein had been obstructed. Obstruction for more than four minutes leads to death” and that the victim’s injuries were “significant”. Yes – during the second strangulation. No – defendant told Police he strangled the victim to calm her down and stop her hitting him; he had not intended her to lose consciousness. SP: 3 years and 6 months’ imprisonment.

2 years and 9 months’ imprisonment (after discount for the drug-induced psychosis the defendant was suffering at the time of the offending).
Hunia v Police [2014] NZHC 333.

Injuring with reckless disregard.

Protection order in place.
Victim was appellant’s on-and-off partner. Intoxicated and despite a final protection order, the appellant was at the victim’s house, got angry and grabbed her, causing her to fall and smash her head. She lay motionless for 10 minutes and then when she got up to leave, the appellant “grabbed her arm from behind, using his right arm to place her in a “choker” hold, squeezing on her neck and causing her to lose her breath and become faint”. Yes – soreness to the neck caused by strangulation, and the victim also suffered a laceration and bruising. No. No. SP: 2 years’ imprisonment.

ES: 19 months’ imprisonment.
Nahi v Police [2012] NZHC 2025. Unclear – the victim appears to have been the sister of the defendant’s sister-in-law. The defendant pushed the victim onto a bed and used both hands to choke her, restricting her breathing. Yes – bruising to the neck, a sore throat, a sore right eye and a lump on head. Yes – “all the victim could remember was waking up in her sister’s presence … the sentencing judge inferred that the victim lost consciousness for a short time”. No. SP: 16 months’ imprisonment.

ES: 16 ½ months’ imprisonment.
EWB v Police [2012] NZHC 225.

Protection order in place.
Victim was defendant’s former partner. Despite a protection order, the victim arrived to find the defendant in her house. After an argument during which the defendant said “I will kill you if you leave me and I will also kill the children”, the defendant put the victim in a headlock, threw her to the floor and then knelt on her with a fist raised threatening to punch. “He then strangled her until her body turned limp.” Yes – bruising and abrasions to neck. Yes – body turned limp. “I will kill you if you leave me and I will also kill the children” (defendant also convicted of threatening to kill). SP: 20 months’ imprisonment.

ES: 16 months’ imprisonment.
Karini v R [2010] NZCA 193.

Upgraded from male assaults female.

Offending entailed breach of bail condition to stay away from victim.
Not recorded. In breach of bail conditions that required him to stay away from the victim, the appellant went to her home and hit her about the body with a shovel, then “throttled her until she thought she was going to die”. Not recorded. Not recorded (no?). No – but victim thought she was going to die. SP and ES: 2 years and 6 months’ imprisonment.
R v Puke [2009] NZCA 582.

Upgraded from male assaults female.

Protection order.
Victim was appellant’s wife. In the course of a dispute that involved verbal abuse, the appellant threatened to slit his wife’s throat before grabbing her by the throat and squeezing, telling her he did not care if he killed her in front of the babies. As he squeezed, he commented on her raised veins and bloodshot eyes and said she would die soon. When one of the daughters tried to pull him off, he assaulted her. Yes – Court recorded the appellant’s threat to his wife was “accompanied by intentionally injuring her by throttling” but does not detail injuries. No. Yes. SP: 3 years and 6 months’ imprisonment.

ES: 2 years and 4 months’ imprisonment (with 1/3 guilty plea discount) for both injuring and threat to kill).
Disabling (Crimes Act, section 197 – maximum penalty 5 years’ imprisonment). Bonfert v R [2012] NZCA 313.

B charged with disabling or, in the alternative, male assaults female. He was convicted of male assaults female.
Victim was appellant’s former partner, with whom he still lived. The appellant pushed the victim, sat on her and threatened to punch her. He then put his hands around her neck and she “lost consciousness and awoke to find the appellant giving her mouth to mouth resuscitation”. Not recorded, but the Court noted that counsel for the Crown had submitted that “photographs showing injuries to the complainant were supportive of her original account” [the complainant having been declared hostile for trial]. Yes. Yes – the jury convicted the appellant of threatening to kill in addition to male assaults female (x 2) and assault with a weapon. The evidence was the appellant had said words (in German) to the effect “I could kill you”. ES: 6 months’ imprisonment (concurrent on sentencing of 16 months’ imprisonment for threatening to kill) on each of the counts of male assaults female.
Assault with a weapon (Crimes Act, section 202C – maximum penalty 5 years’ imprisonment). R v McCreath HC Dunedin CRI-2009-012-5906, 15 April 2010. Victim was defendant’s former wife. When the victim rebuffed his advance, the defendant put a rope around her neck and pulled it tight. He put a hand over her mouth, and she struggled to breathe. Yes – bruising and a sore throat and neck and trouble eating and swallowing. No. No. 4 years’ imprisonment (concurrent on sentence of preventive detention for indecent assault).
Assault with intent to injure (Crimes Act, section 193 – maximum penalty 3 years’ imprisonment). Police v Slater [2013] NZHC 2460.

Police appeal against grant of bail. Defendant charged with assault with intent to injure and breach of protection order.
Complainant, who was 28 weeks’ pregnant, was the defendant’s partner. The defendant entered the complainant’s house, spat in her face and then “placed his arm around her neck and throat, exerting sufficient force to control her but not choke her”.

In earlier alleged offending, which the Court took into account in considering bail, the defendant allegedly assaulted the complainant and then tightened her dressing gown cord around her neck before using his hands around her neck to lift her up and said “If you call the cops, I will fuck you up”. He then allegedly stuffed a tea towel into her mouth.
Unclear – complainant hospitalised for several days, but the Court did not record whether that was for strangulation-related or because of other injury. No. No. Bail revoked.
S v Police [2013] NZHC 1026. Victim was appellant’s wife. The appellant verbally abused the complainant and then strangled her to the point she lost consciousness. He was still pinning her down when she regained consciousness. Not recorded, but Court stated, “This was a serious domestic assault which could have had a dire outcome.” Yes. Yes – The Appellant told the victim that he would kill her and then kill himself. SP: 3 years’ imprisonment (on appeal, Court observed this seemed too high, but adjusted the end sentence).

ES: 2 years and 3 months’ imprisonment.
Wilson v Police [2012] NZHC 2503. The (pregnant) victim was the defendant’s partner. The defendant struck the victim and grabbed her throat to the point she felt unable to breathe. Not recorded.   Yes – when the Police were called, the defendant threatened to kill the victim and himself. SP: not expressly identified, but on appeal, 15-month SP held to be too high.

ES: 12 months’ imprisonment.
Luff-Pycroft v R [2012] NZCA 107.

L-P also charged and convicted of injuring with intent to injure for second assault that, in addition to strangulation, biting, and placing hand over face with such force as to break tooth enamel and cause bruising.
Victim was appellant’s girlfriend. The defendant “became angry with the victim and attacked her by choking her, leaving marks on her neck. Mr Luff-Pycroft then fetched two knives from the kitchen and threatened to kill her, before holding the knives to his own throat and saying he would kill himself.” Yes – first strangulation left marks on the victim’s neck; second caused bruising and swelling to her face and fracture to her tooth enamel. No. Yes, and the victim believed she would die. SP: 2 years’ imprisonment, imposed on the injuring with intent to injure charge, with a 4-month uplift to accommodate the assault charges and continuing nature of the violence.

ES: 6 months’ home detention.
Police v JPWB DC Hawera CRI-2011-021-587, 3 August 2011. Victim was defendant’s daughter.

Protection order (in favour of wife).
The victim said the defendant “grabbed her around the throat with his right hand, pushed her up against the wall, held her there against the wall yelling and screaming”. She thought he would strangle her.
 
No. No. Judge found the defendant’s “deliberate intention must have been to compromise breathing”, given that he “went for the [victim’s] throat area”. 175 hours’ community work and final warning for domestic violence.
Paikea v Police HC Whangarei CRI-2010-488-53, 29 October 2010. Victim was defendant’s sister. The defendant grabbed his sister and threw her to the ground, hitting her about the head. He put his hands around her throat and choked her. Yes – victim suffered bruising to the side of her face and around her neck. No. No. SP: not precisely identified but up to 2 years’ imprisonment.

ES: 1 year and 4 months’ imprisonment.
Teka v Police CRI-2009-404-253, 7 September 2009. Victim was appellant’s ex-partner. The appellant “grabbed [the victim] by the sweatshirt, threw her to the floor and began attempting to strangle her. When the Police arrived, they found the appellant lying on top of the victim with his forearm on her neck pinning her to the floor. He then wrapped his right arm around the victim’s throat and squeezed tightly, restricting her breathing by the force he was applying to her neck.” Yes – “as a result of the attack the victim suffered bruising to her neck and throat area. The sentencing Judge noted that it was fortunate that after assessment by the ambulance staff the damage to the victim was only a very sore throat.” No. No. SP: 2 years’ imprisonment.

ES: 18 months’ imprisonment.
Skilling v Police HC Christchurch CRI-2006-409-117, 27 July 2006. Victim was appellant’s wife. In an attack on his wife, the appellant choked her three times. “The Judge went on to record that the victim suffered a swollen face, a bruised and swollen back, scorch marks from cigarettes on her arms and body, and a lot of pain. He also noted that she had suffered emotional damage and that she honestly believed she was going to be killed.” No. No – but victim believed she would be killed. SP and ES: 2 years and 9 months’ imprisonment.
Male assaults female (Crimes Act, section 194(b) – maximum penalty 2 years’ imprisonment). Waitai v R [2014] NZHC 2116.

Downgraded from charge of injuring with intent to injure.
Victim was appellant’s ex-partner. The appellant threw an object at the victim that hit and hurt her before walking to her, placing her in a “choke hold, squeezing her neck so she could not speak and could not breathe”. He did this two more times. No – Court recorded, however, that “Although [strangulation] may leave no visible signs of injury, and is therefore sometimes treated less seriously than other forms of domestic violence such as punching or hitting, the risks associated with strangulation are very high.” No. Yes – the appellant told the victim he “wanted her to black out”. SP: 12 months’ imprisonment.

ES: 12 months’ imprisonment.
Areaiti v Police [2014] NZHC 2413.

Downgraded from charge of injuring with intent to injure.

Protection order.
Victim was the defendant’s partner.

 
Defendant threw a bottle at the victim before grabbing her by the throat and pinning her against the wall so that she struggled for breath and thought she would die. Not recorded. No. Not at time of assault, but 2 days later, the defendant threatened to kill the victim. ES: 18 months’ imprisonment.
Rikihana v Police [2013] NZHC 711.

Downgraded from charge of assault with intent to injure.

Protection order.
Victim was defendant’s partner. The defendant pushed the victim on to a chair, “held her neck and pushed his thumbs into her throat to the point where she felt she was losing consciousness”. Yes – marks on neck and burst capillaries in eyes. Unclear – victim felt she was “losing” consciousness. No. SP: 15 months’ imprisonment.

ES: 13 months’ imprisonment.
Police & Dept of Corrections v Cuff DC Invercargill CRI-2011-025-1569, 28 October 2011.

Downgraded from charge of assault with intent to injure.
Victim was defendant’s partner. Having pushed the victim to the ground, the defendant “grabbed her throat and squeezed it tightly for about 15 seconds” while the victim struggled to breathe.Two days earlier, the defendant “took hold of her jaw, squeezed it tightly, saying to her, ‘I am going to break your jaw. If you leave me I will come after you.’” For this, the defendant was charged with assault with intent to injure. No. No. No. SP: 12 months’ imprisonment (on another charge of assault with intent to injure; 6 months concurrent imposed for the strangulation).

ES: 6 months’ imprisonment.
R v Dawson HC Rotorua CRI-2009-087-2532, 25 February 2011. Victim was defendant’s former partner. The defendant “started strangling [the victim], choking her throat with [his] wrist, and restricting her breathing”. The next day, he returned to her house, forced her to the bed, put his wrist against her throat, pushed heavily and said he could kill her. The victim lost consciousness and was raped before the defendant started choking her again. Not recorded; defendant also charged with rape. Yes. Yes. 6 months’ imprisonment for the preliminary visit to the victim’s house and strangulation; 13.5 years’ imprisonment for the rape that involved strangulation.
Ferguson v Police HC Dunedin CRI-2008-412-9, 10 April 2008. Victim was defendant’s partner. The defendant began to strangle the victim and said, if she did not give him the car keys, he would push her out the window. The victim began to choke and gasp for air. Not recorded. No. No. ES: 9 months’ supervision and community work.
R v ES CA260/06, 25 September 2006. Victim was appellant’s wife. Appellant grabbed wife by the shoulders, threw her against the wall, slapped, punched and kicked her and grabbed her by the throat in a strangle-type hold until she started gagging and was unable to breathe. This kind of conduct occurred throughout the 6-month marriage. Not recorded. No. No. 9 months’ imprisonment cumulative on other terms of imprisonment imposed for assaults on child, threats (the 9-month term took into account totality).