Strangulation in the criminal justice system
3.1In this chapter, we describe how strangulation is currently dealt with by the criminal law. We review cases to illustrate how strangulation arises in the family violence context and how perpetrators are prosecuted and punished. In the next chapter, we go on to discuss whether the perpetrators of strangulation are being held adequately accountable.
3.2To understand how strangulation is prosecuted, we consulted with a wide range of people, particularly the Police. We also gathered published criminal judicial decisions in which the prosecuted behaviour involved strangulation in family violence circumstances. We include summaries of those decisions in Appendix C. For each, we describe the nature of the violence, evidence of injury, whether the strangulation caused the victim to lose consciousness or was accompanied by a threat to kill or other intent to cause physical harm (for example, making the victim lose consciousness), the charge and the sentence.
3.3We have not examined strangulation that occurs in non-family violence circumstances because that is outside of our terms of reference. Also, within the parameters of family violence strangulation, the table in Appendix C does not include strangulation that was not prosecuted or that resulted in death. Obviously, it also does not include strangulation that was not reported to the Police.
3.4Given the cases in the table represent only a subset of all cases involving strangulation, they are indicative, rather than exhaustive, of the way the criminal justice system responds to strangulation. It is important they are read on that basis. The limited size of our sample means that care should be exercised in drawing conclusions based on that information alone. For that reason, we have also tested our conclusions with a variety of people participating in the criminal justice system who specialise in family violence.
Comparing case outcomes
3.5Sometimes, strangulation is the only element of a physical attack. In those cases, sentence starting points can be compared because, in theory, they should be similar.
3.6More often, though, strangulation is one part of an attack involving other violence. In such cases, strangulation is sometimes separately charged and other times counted as part of the factual background to an offence that involves other violence. If it is the subject of a separate charge in such a situation, the nominal sentence for the strangulation might be less than if the violence had been limited to strangulation. In cases involving multiple charges, what matters is that the total sentence reflects an offender’s overall culpability for the whole episode of offending, and the calculation of individual sentences is secondary. The following hypothetical illustrates how this might look in practice:
In a single incident, an offender stabs and strangles his partner. For the stabbing, he is charged with and convicted of “wounding with intent to cause grievous bodily harm” (maximum penalty of 14 years’ imprisonment), and for the strangulation, he is charged with and convicted of “male assaults female” (maximum penalty of two years’ imprisonment). For sentencing, the lead offence is the wounding because it is the more serious. In imposing concurrent sentences, the Judge specifies a lead sentence for the wounding of five years’ imprisonment and a concurrent sentence of one year’s imprisonment for the assault. The effective term of imprisonment imposed on the offender is, therefore, five years. The one-year sentence for the assault does not affect the term to be served and nor can it be assessed in isolation from the overall sentence. Just as the offending is to be viewed in the round, so is the sentence.
3.7This is the principle of “totality”. It is explained in R v Hassan, where the Court of Appeal rejected an argument that the sentencing Judge had wrongly assessed culpability for individual charges. The Court stated:
This submission confuses the nature of the enquiry for sentencing purposes in such a case. This was one continuing incident, which involved the commission of two separate offences, which were closely related not only in time but also in the assessment of their own respective criminal culpability. The Judge was required, as she did, to look at the totality of the offending and then impose a sentence appropriate to that. It is seldom helpful to attempt an analysis of the individual sentences imposed in such a situation, which ignores the totality principle. As this Court has previously noted, in cases of multiple offending there are frequently different arithmetical methods of achieving the final appropriate result.
3.8The primacy of the total effective sentence, rather than how it is calculated, means it can be hard to compare cases. A number of variables affect what charges are laid and how sentences are calculated, and there are inevitably inconsistences in practice. In terms of charging, for example, Appendix C shows that sometimes strangulation is charged as a relatively serious offence but then downgraded to a more minor charge. Sometimes it is charged from the outset as a relatively minor offence, even though the evidence would support a more serious charge. As we note below, these charging decisions have flow-on effects for sentencing.
3.9Despite variations in charging and sentencing practice, however, the cases in Appendix C appear to share a number of features and suggest some trends.
3.10There are three types of decisions for Police and prosecutors that determine what charges a person who commits strangulation will ultimately face. These are:
- the decision to prosecute—whether an offence has been disclosed and whether to lay charges;
- the choice of charges; and
- plea negotiations.
3.11All three decisions should be made in accordance with the principles set out in the Solicitor-General’s Prosecution Guidelines. Amongst other things, those Guidelines establish the overarching principle that the nature and number of resulting charges should adequately reflect the criminality of the defendant’s conduct.
The decision to prosecute
3.12There are two elements to a decision to prosecute. They are:
- whether the evidence is sufficient to provide a reasonable prospect of conviction (the evidential test); and
- whether prosecution is required in the public interest (the public interest test).
3.13The evidential test is met if there is credible evidence that could be expected to satisfy a judge or jury beyond reasonable doubt that the offence was committed. Whether the public interest test is met will depend upon a number of factors including the seriousness of the offending, the vulnerability of the victim, whether the conduct is likely to be repeated and whether diversion would better serve the public interest. Both tests must be met, so it may be that there is sufficient evidence to provide a reasonable prospect of conviction but the offence is not serious and prosecution is not required in the public interest.
3.14We understand from Police that there are cases in which strangulation is alleged but no prosecution is brought. We do not have sufficient information to ascertain why this may be but surmise that it may be because either:
- the evidential test is not met if the complainant appears unreliable or there are no marks on the neck and further medical assessment is not considered warranted; or
- the public interest test is not met if the allegations are not considered serious.
The choice of charges
3.15Assuming a prosecution is commenced, the prosecutor must decide which charge or charges should be laid. In principle, the choice of charges must properly reflect the criminality of the defendant’s conduct. However, in relation to strangulation, there are a number of ways in which this result can be achieved. For example, where strangulation is the main or only violent behaviour, there are a range of possible charges. Where strangulation was one part of other violent behaviour, it may be that the “criminality” of the strangulation can be adequately reflected in serious charges targeting other aspects of the violence.
3.16Strangulation usually falls to be prosecuted under Part 8 of the Crimes Act 1961, which prescribes “crimes against the person” (although it might sometimes be prosecuted in connection with sexual offences like rape, which are provided for under Part 7). The offences in Part 8 cover a wide spectrum of culpability:
- At the most serious end are murder, manslaughter and attempted murder, which are punishable by terms of imprisonment of between 14 years and life.
- Below homicide, but still serious, are wounding and injuring with intent to cause grievous bodily harm or intent to injure, and aggravated wounding and injury. There is also a specific offence of “disabling”, which is relevant when strangulation results in a loss of consciousness. These offences are punishable by terms of imprisonment of between five and 14 years.
- At the lowest end of culpability are the offences of “assault with intent to injure”, “male assaults female” and “common assault”, which are punishable by terms of imprisonment of between one and three years.
3.17The cases in Appendix C demonstrate that strangulation in family violence circumstances is often charged at a low level as “male assaults female”. More serious charges are the exception and are laid only when there is other violence or evidence of injury. For example, the defendant in Grant was charged with “causing grievous bodily harm … with intent to cause grievous bodily harm”, carrying a maximum penalty of 14 years’ imprisonment. In that case, the defendant put his girlfriend in choker holds, forced her head under bath water, bit her, gouged her eyes and stabbed her with a comb.
3.18At the other end of the spectrum, the defendant in Areaiti, who was charged with “male assaults female”, threw a bottle at the victim before grabbing her by the throat so she struggled for breath and thought she would die. Similarly, in Rikihana, the defendant pushed the victim onto a chair and strangled her, but there was no other violence, and the ultimate charge was “male assaults female”.
3.19We noted in Chapter 2 that the physical injury suffered by victims of strangulation may be difficult to detect, although the cases rarely indicate that a thorough medical assessment has been carried out that may have documented any internal or psychological injuries. The cases in Appendix C demonstrate, moreover, that while there is often no evidence of injury (or at least serious injury), a real part of any harm suffered by the victim is related to the terror that accompanies the belief that she will die. The offender in S v Police, for example, strangled the victim to the point of unconsciousness and said he would kill her, and the offender in Waitai told the victim he “wanted her to black out”. Those defendants were, however, charged with “assault with intent to injure” and “male assaults female” respectively.
3.20The cases in Appendix C provide few clues as to the criminal intent of the defendant. Was the offender’s intention to physically harm the victim? To terrorise? To control? Was the strangulation an expression of rage? Of course, some cases involved threats to kill or an express intention to cause unconsciousness. Those intents are unambiguous and particularly culpable. It is, therefore, perhaps surprising when they are met merely with charges of assault.
3.21Even when the test for prosecution is met and a person is charged, the charges may still evolve through plea discussions, which can result in agreements to substitute less serious charges than those first laid if the defendant pleads guilty to the lesser charges. The Solicitor-General’s Prosecution Guidelines permit principled plea discussions and arrangements under which a defendant may agree to plead guilty to a lesser charge instead of defending the more serious charge. It is recognised that these arrangements can reduce the burden on victims and complainants, save time and resources and provide a forum for a defendant to accept responsibility for criminal conduct.
3.22As noted above, in plea discussions, as during other stages of the prosecution process, prosecutors must have regard to whether the charges agreed to adequately reflect the offender’s essential criminality and “provide sufficient scope for sentencing to reflect that criminality”. To enable courts to assess offenders’ essential criminality, the Solicitor-General’s Prosecution Guidelines also provide that a summary of facts agreed during plea discussions must “not omit any material fact for the purposes of any plea arrangement”. This includes “the extent of the injury or damage suffered by the victim”.
3.23The effect of plea negotiations can be seen in some of the cases in Appendix C (although there is generally no way to know on the face of the decisions why the charges were amended). In Areaiti and Waitai, the offenders were initially charged with “injuring with intent to injure”, but those charges were downgraded to “male assaults female”. In Rikihana, the original charge was “assault with intent to injure”, but that was downgraded to “male assaults female”.
3.24In at least one of the cases where the charge was downgraded (Waitai), the Court noted the considerations were “pragmatic” rather than evidential and that the evidence would have supported the more serious charge. We take that to mean that the public interest (rather than evidentiary) limb of the test for prosecution indicated that the more serious charges should be dropped. That would appear also to have been the case in Rikihana, given there was evidence the victim was left with marks on her neck and burst capillaries in her eyes.
3.25The Sentencing Act 2002 sets out matters judges are required to take into account when sentencing offenders. They include:
- the gravity of the offending in the particular case, including the degree of culpability of the offender;
- the seriousness of the type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences; and
- the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances.
3.26As a matter of principle, offenders with similar levels of culpability should receive similar sentences. How strangulation is charged, however, affects the available penalty and therefore the extent to which the court can hold the offender accountable.
3.27Our case sample includes a wide range of charges and so a wide range of starting points and end sentences. Among the Appendix C cases, the most serious charge—“causing grievous bodily harm with intent”—was laid in Grant, and the Court adopted a starting point of eight years’ imprisonment against a maximum of 14 years. At the other end of the scale is Waitai, where a starting point of 12 months’ imprisonment was held to be appropriate on the basis the offence was “male assaults female”, which has a maximum penalty of two years’ imprisonment.
3.28A comparison between the cases of Barrett and Waitai illustrates the impact of charging on the final sentence. In Barrett, the offender hit the victim several times with a curtain rod, pulled her hair, punched and kicked her, and attempted to throttle her, knowing she had suffered an earlier brain injury. He was charged with “injuring with intent to cause grievous bodily harm” and the Court imposed a sentence of six years’ imprisonment (against a maximum penalty of 10 years’ imprisonment).
3.29In Waitai, the offender threw an object that hit and hurt the victim before putting her in a choke hold and squeezing her neck so she could not speak or breathe, which he repeated two more times. The original charge of “injuring with intent” was downgraded to “male assaults female”. On appeal, the Court “reluctantly” concluded an 18-month starting point was too high and that it should have been 12 months. The Judge considered that “if the charge had not been reduced from the more serious charge of injuring with intent, the starting point adopted could … have readily been justified”. The reduced charge necessarily impacted on the appropriate starting point.
3.30This striking difference in penalty appears to be due largely to the charge each offender faced. In its guideline for grievous bodily harm offending, Taueki, the Court of Appeal has said the following kind of offending prosecuted as “wounding with intent to cause grievous bodily harm” (s 188(1) of the Crimes Act 1961, maximum penalty 14 years’ imprisonment) will call for a starting point of around four years’ imprisonment:
Domestic assault: A domestic assault by an offender on his or her spouse or partner (or former spouse or partner) which is impulsive, does not involve the use of a weapon and does not cause lasting injuries, but where the victim is properly classified as vulnerable, may require a starting point in the region of four years. Where there is a degree of premeditation or there is the use of a weapon (but, again, no lasting injuries), a higher starting point could be expected, perhaps five years or more.
3.31Offending prosecuted as “wounding” or “injuring with intent to injure” (maximum penalties of 10 and seven years’ imprisonment respectively) that has three or fewer “aggravating factors”, in turn, may attract a starting point of three years’ imprisonment.
3.32A key feature of the guidance in Taueki is the discussion of matters contributing to the criminality involved in a grievous bodily harm offence. The Court highlighted 14 such matters, which include the following:
The extent of the violence involved in the offending will have an obvious impact on the level of criminality. Where any violent conduct is prolonged that will also be relevant, as will violence that is unprovoked or gratuitous. This reflects s 9(1)(a) and (e) of the Sentencing Act.
Even where weapons are not used, attacks on the head of a victim can have particularly serious consequences. Thus, where a victim is subjected to a severe beating or kicking causing head injuries, the offenders conduct will be treated similarly to offending involving the use of a weapon.
Where the victim is particularly vulnerable (for example a child or where there is a disparity in size or strength between the attacker and the victim), that will also be a significant factor in the assessment of culpability. Section 9(1)(g) of the Sentencing Act applies. Breach of a protection order in favour of the victim will also be an aggravating factor ….
3.33Strangulation, which, by its nature involves attacking the head area and tends to involve extreme violence and vulnerable victims, would easily fit into this category. However, because it is often prosecuted as an assault, the sentences imposed do not reflect that, despite the seriousness of the offenders’ conduct. Luff-Pycroft, Paikea and Rikihana are further examples of cases in which the sentence starting point seems out of step with the offender’s culpability. In both Luff-Pycroft and Paikea, strangulations were charged as “assault with intent to injure”, and in Rikihana, the charge was “male assaults female”. For offending that also involved a charge of “injuring with intent to injure”, Mr Luff-Pycroft received an effective sentence of six months’ home detention (principally in recognition of his prospects of rehabilitation) despite having caused the victim serious pain and injuries and having threatened to kill her. Mr Paikea was sentenced to one year and four months’ imprisonment for violence that included throwing his sister to the ground, hitting her about the head and strangling her. Mr Rikihana, whose strangulation caused the victim to feel she was losing consciousness and burst capillaries in her eyes, was sentenced to 13 months’ imprisonment.
3.34We acknowledge that a whole range of factors affect the final sentence that an offender receives, including the timing and circumstances of any guilty plea, youth and prospects of rehabilitation. Our concern in citing these cases is to highlight what appear to be very low sentences for serious offending, even if the offenders’ individual circumstances may have warranted sentence discounts of various kinds.
3.35It is rare for the sentencing decisions to indicate that the judge understood the lethality and unique features of strangulation, although, at least as regards potential lethality, that may be because the judge considered it went without saying. In some cases, furthermore, it is clear the judge is aware of the characteristics of strangulation. In Smith, where the victim was strangled twice and lost consciousness, the sentencing Judge described Mr Smith’s violence as “extreme” and noted that there was medical evidence the victim’s jugular vein had been obstructed and that obstruction for more than four minutes leads to death. In S v Police, in which the victim was strangled to the point of unconsciousness, the Judge observed that the assault “could have had a dire outcome”. In Waitai, the sentencing Judge considered the defendant’s use of strangulation against his pregnant ex-partner was “seriously aggravating” and noted:
Although it 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.
3.36Our review of the decisions in Appendix C, together with our conversations with stakeholders operating in the family violence area, has led us to reach the following conclusions about the prosecution of strangulation in family violence circumstances:
- Strangulation that is reported to the Police is not always prosecuted.
- Strangulation is often charged as “male assaults female” even when there is evidence of injury or a threat to kill. The sentences imposed for strangulations that are charged as assaults are correspondingly low.
- Frequently, strangulation leaves no evidence of injury or the injuries of which there is evidence are limited to swelling, bruising or soreness.