Chapter 6
Other Crimes Act options for reform

Aggravated versions of offences increasing penalty

6.21A third option is to create strangulation versions of existing offences. This would see the Crimes Act amended to state that, if strangulation is a feature of a violent offence, the maximum penalty for that offence should rise by a set amount (for example, by two years). This “strangulation overlay” could apply just to the offence of “male assaults female” or to all offences under Part 8 of the Crimes Act. In effect, it would establish a second tier offence or set of offences for when the violence included strangulation. The fact of strangulation would need to be proved in addition to whatever other matters are required by the particular offence.

6.22South Australia has an extensive system of factors that create aggravated versions of offences. The range of circumstances that may aggravate an offence include that:170
6.23Under that legislation, if a person is charged with an aggravated version of an offence, the aggravating circumstances must be stated in the charging instrument. If two or more circumstances are stated and a jury makes a finding of guilt, it must also state which of the aggravating factors it found were established. An aggravated charge of “assault” raises the maximum penalty from two years to three years’ imprisonment. An aggravated charge of “assault causing harm” raises the maximum penalty from three years to four years.171
6.24Western Australian legislation prescribes a more limited set of circumstances of aggravation that are relevant only to a limited range of offending such as grievous bodily harm, sexual offending and stalking. The circumstances that aggravate those offences include that:172

6.25If this approach was followed in New Zealand, it would provide a strong signal about the significance of strangulation and hold perpetrators of strangulation more accountable (by imposing a higher maximum penalty). It has one distinct advantage over the strangulation offence described in Chapter 5 in that it does not offer an alternative charging option so removes the risk of inconsistent charging practice.

6.26Nonetheless, we consider that it would introduce unwarranted complexity and confusion into the offence framework, particularly by singling out strangulation as the only aggravating factor. If this approach were deemed suitable for strangulation, it should perhaps also be considered for other factors that aggravate offending, including all those listed in section 9 of the Sentencing Act 2002.173
170Criminal Law Consolidation Act 1935 (SA), s 5AA.
171Section 20.
172Criminal Code Act Compilation Act 1913 (WA), s 221.
173In Chapter 7, we discuss in more detail the s 9 factors that aggravate offending.