5.39There is no agreed method for setting maximum penalties of offences in New Zealand. However, it is clear that maximum penalties should:
5.40It is important to stress that, in itself, the maximum penalty for an offence gives very little guidance about the actual penalty that should be imposed in a particular case. The maximum is merely a parliamentary stipulation of what it considers should be imposed for the worst class of case of that criminal behaviour that does not fall within another, more serious offence.
5.41Some offences have very broad bands of culpability, as would the offence of strangulation described in this chapter. We have described an offence in which liability flows merely from intentionally applying force to the neck (or otherwise impeding normal breathing or blood circulation). The resulting harm or motivating intention could vary widely. While those matters are not required to prove that the offence has been committed, they will be relevant to the level of culpability and therefore the actual sentence imposed.
5.42In setting the maximum penalty for this offence, we must consider the worst class of strangulation behaviour that should be captured, excluding behaviour that would be charged under another serious violent offence. Strangulation that results in injury or wounding, or for which there is evidence of an intention to commit another offence, is out of scope because such cases could be charged under existing serious violent offences.
5.43An example of the worst class of strangulation within scope would feature the hallmarks of coercive or controlling behaviour and the terror we have identified. For example, a perpetrator enters the victim’s home in breach of a protection order. After an altercation, he strangles her with his hands on and off for several minutes, leaving her struggling for breath, incontinent and unconscious. The victim thinks she will die and knows that the perpetrator has the power to kill her. Because he invaded her home, after the strangulation, she lives in constant fear for her security and life. As a consequence, he has achieved coercion and control over her.
5.44It is the terror that results from strangulation that is at the heart of this kind of criminal conduct. That terror is likely to seriously affect all aspects of the victim’s life. In our view, the terror that results from this “worst class of case” is greater than the harm of a minor injury and at least equivalent to a serious physical injury.
5.45For this reason, we consider that a maximum penalty of seven years’ imprisonment would be appropriate for a strangulation offence. That would mean the offence of strangulation is:
5.46Perhaps most relevant, a maximum penalty of seven years’ imprisonment makes strangulation slightly more serious than the current offence of “disabling”, which carries five years. While the two offences are similar in that they involve behaviour that affects the victim’s consciousness, we consider that the terror resulting from strangulation or suffocation marks that offence out as more serious than “disabling”.