Other Crimes Act options for reform
Amending the aggravated offences
6.3Currently, the offences of “aggravated wounding or injury” and “aggravated assault” require one of the following three ulterior intent elements to be proved—an intent to:
- commit or facilitate the commission of any imprisonable offence;
- avoid the detection of himself or herself or of any other person in the commission of any imprisonable offence; or
- avoid arrest or facilitate the flight of himself or herself or of any other person upon the commission or attempted commission of any imprisonable offence.
6.4Adding a fourth intent element designed to capture the motivation more usually present in strangulation in family violence circumstances would make it easier to use these offences to prosecute strangulation, improving accountability for the perpetrators. That new ulterior intent could be “to intimidate, control or coerce the victim”.
6.5If this additional intent element could be proved in relation to a particular family violence incident, it would establish three tiers of offence with which to prosecute the strangulation, which are:
- “aggravated assault” (three years’ imprisonment)—the only additional element to be proved is an assault (which would be the strangulation);
- “aggravated injury” (seven years’ imprisonment)—the only additional element to be proved is an injury (for example, bruising, petechiae or a medical assessment showing internal injuries or psychiatric injury); or
- “aggravated wounding” (14 years’ imprisonment)—the additional element would be either that the victim was rendered unconscious or that violent means were used to render the victim incapable of resistance.
6.6In relation to “aggravated wounding”, one of the two results must be proved—either unconsciousness or rendering incapable of resistance. Both are questions of fact for the jury. Evidence of a loss of consciousness can be obtained from the victim or any witness and can be corroborated by signs or symptoms of lack of consciousness such as incontinence or dizziness or by medical assessment. Evidence of violent means used to render the victim incapable of resistance will depend upon the circumstances. The Court of Appeal has held that “violent means” does not necessarily require physical force and so may extend to threatening to shoot the victim. It is not hard to assume that, where the act of strangulation and the intent to intimidate, control or coerce is proved, the “use of violent means to render the victim incapable of resistance” would be inferred.
6.7When a violent act like strangulation occurs in family violence circumstances, it is likely to be much easier to prove intent to intimidate, control or coerce the victim than to prove the existing intent elements in current aggravated assault offences. As we described in Chapter 2, it is thought that abusers do not strangle to kill but to show their victim that they can kill. Strangulation is a tool of coercion and control. Proof of this intent can come directly from the defendant’s own statements or those of the victim or a witness. It can also be inferred from those statements or the defendant’s actions. For example, evidence of threats to kill in addition to the strangulation or statements such as “you will do as I say” would be evidence of intent to intimidate, control or coerce. It is also possible this intent may be inferred from the strangulation itself, particularly if it was part of an ongoing pattern of violence.
6.8Adding this intent element to the existing offences of “aggravated wounding and injuring” and “aggravated assault” would provide a mechanism for holding the perpetrators of strangulation more accountable by providing charges that are more suited to the circumstances of strangulation than the current more serious violence charges. The range of penalties available under these offences (three years, seven years and 14 years) reflect the range of seriousness appropriate for strangulation and would be more appropriate than the two years available under “male assaults female”.
6.9The advantage of this option is that it would target the aspect of strangulation that marks it out as especially culpable—the intimidation, control and coercion. It would do so without having an adverse impact on the current framework of offences. Unlike the specific offence described in Chapter 5, it does not introduce new elements that may have an impact on other Crimes Act offences or the common law. Perhaps more importantly, by altering existing offences, it does not carry the risk of inconsistent charging practice arising with a specific offence.
6.10However, the disadvantage of this option over a specific offence is that it does not introduce the concept of “strangulation” to the Crimes Act so does not highlight that behaviour as worthy of particular attention. Also, any conviction for these offences would give no indication that they involved strangulation. That would need to be specifically brought to the attention of a judge making a decision on bail or a protection order.
6.11Of course, this option would have an effect beyond strangulation. It is likely that it would also be easier to prosecute other forms of family violence if this option were enacted. This broader implication puts this option outside the terms of reference of this review. It should be considered as part of the Ministry of Justice’s broader examination of family violence prosecution.