Chapter 5
A specific strangulation offence

Should a strangulation offence be limited to family violence circumstances? 146

5.25We have considered whether a new strangulation offence should be limited to family violence circumstances or apply in all contexts. On the one hand, limiting a strangulation offence would emphasise the unique risk of this type of offending in family violence circumstances. The studies linking strangulation to a high risk of future fatal attack relate only to family violence circumstances. There is no similar link demonstrated in other circumstances. It seems likely that some people who strangle in other circumstances will present a significant risk, but others—such as those who have been trained in using a choke hold for self-defence purposes—will not. Limiting an offence to family violence would help to keep the risk of future fatality in the forefront of the minds of Police and judges and help them make better decisions to keep victims of family violence safe.

5.26On the other hand, the problems we identified in Chapter 4 with prosecuting strangulation in family violence circumstances are likely to apply equally to other contexts. The difficulties described in proving the fact of strangulation or the requisite harm or intention elements are tied to strangulation, not the family violence context, so would also arise in other contexts and result in a lack of appropriate accountability for offenders.

5.27Also, if family violence circumstances were an element of the offence, proving that fact would sometimes impede prosecution, perhaps where the relationship in question was unstable, ambiguous or after the victim had ended the relationship. This problem could be partly addressed by a broad definition of “family relationship” but could still place a difficult burden on the prosecution and victim in some circumstances.

5.28We have concluded these problems mean that any new offence should not be limited to family violence cases. While our terms of reference are focused on family violence, it is artificial to ignore the broader criminal context. We consider limiting a new offence to family violence circumstances would risk anomalous and inconsistent treatment of different classes of offenders whose conduct may be equally culpable.

5.29However, at a practical level, it is important that a judge making bail decisions or protection orders knows whether any previous convictions for strangulation occurred in family violence circumstances. If the judge does not know that, he or she cannot know that there is an increased risk of fatality for the victim and make decisions to mitigate that risk.

5.30We have identified a mechanism by which a new offence can have a broad application but still be identified as a family violence-specific offence in appropriate circumstances. In New South Wales, the Crimes (Domestic and Personal Violence) Act 2007 provides that, if a person pleads or is found guilty of an offence of personal violence and the court is satisfied that the offence occurred in domestic violence circumstances, the court must direct that the offence be recorded on the person’s criminal record as a domestic violence offence.147 This allows the court to build a progressive record of family violence-related criminal conduct that may be taken into account in bail proceedings, sentencing and the trial of subsequent offences.148 Under this mechanism, the domestic violence circumstances are not an element of the offence and do not affect the maximum penalty of the offence.149
5.31This option could be applied specifically to a new strangulation offence so that the Crimes Act would state that, if a person pleads guilty to the offence of strangulation or is found guilty of that offence and the court is satisfied that the offence was a family violence offence, the court must direct that the offence be recorded on the defendant’s criminal record as a family violence offence.150 This would ensure judges or other people considering the criminal record knew that the strangulation occurred in family violence circumstances and so there is an increased risk of fatality. It would achieve this without limiting the application of the offence or introducing an additional barrier to conviction.

5.32We consider that, if this mechanism were enacted, careful consideration would need to be given to the standard of proof required. While on the face of it, the identification is merely for the purposes of noting the circumstances on the criminal record and does not have a direct impact on the penalty, we consider that there remains substantial scope for the defendant to be disadvantaged.

146We use the term “strangulation offence” for convenience to refer to the offence previously described as including strangulation and suffocation.
147Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 12.
148Family Violence – A National Legal Response (Australian Law Reform Commission Report 114 and the NSW Law Reform Commission Report 128, 2010) at 572.
149We note, by way of contrast, that, under South Australian and Western Australian legislation, family violence circumstances will aggravate the charge, meaning that, if the offence is carried out in family violence circumstances, the charge must be laid as a “family violence charge” in which those circumstances become an element of the offence and automatically increase the maximum penalty if a conviction is entered. We discuss these “aggravated offences” in Chapter 6.
150We note that this mechanism could also be applied to other violent offences so that it is apparent from the criminal record that they occurred in family violence circumstances.