Chapter 6
Other Crimes Act options for reform

Offence of recklessly endangering life

6.12Unlike some other jurisdictions, New Zealand does not have an offence of “endangering” within the framework of offences against the person in Part 8 of the Crimes Act. In jurisdictions that have this offence, it is a criminal act to do something that endangers the health or safety of the victim. There is no requirement to prove that the behaviour resulted in harm, only that the act was dangerous. As such, it may be suited to strangulation which is inherently dangerous despite difficulty in proving actual harm.

6.13As we noted in Chapter 4, the Crimes Act offence of “criminal nuisance” has a similar effect. However, as a public welfare offence, the behaviour charged under it is more in the nature of failing to protect the public from dangerous things under one’s control than engaging in violent conduct that might expose others to harm. Furthermore, the sentence levels for “criminal nuisance” would not address the current issue of strangulation being inadequately sanctioned.

6.14Other jurisdictions have offences of endangering:

6.15We note that endangering offences were included in the Crimes Bill 1989, which was never enacted. Those provisions read as follows:

Section 130(1)(b) Every person is liable to imprisonment for 14 years who … with reckless disregard for the safety of other, does any act or omits without lawful excuse to perform or observe any legal duty, knowing that the act or omission is likely to cause serious bodily harm to any other person.

Section 132(1)(b) Every person is liable to imprisonment for 5 years who … with reckless disregard for the safety of other, or heedlessly, does any act or omits without lawful excuse to perform or observe any legal duty, the act or omission being likely to cause injury to any other person or to endanger the safety or health of any other person.

Section 132(2) Every person is liable to imprisonment for 2 years who negligently does any act or omits without lawful excuse to perform or observe any legal duty, the act or omission being likely to cause injury to any other person or to endanger the safety or health of any other person.

6.16An offence of recklessly endangering life would apply to a broader category of offending than strangulation. This might be appropriate if there was a gap in the offence framework in respect of dangerous behaviour that does not result in injury or wounding, especially in the context of violence intended to intimidate and make the victim fear for their safety. Examples of other behaviour that would be captured by such an offence are:

6.17An endangering offence would be helpful for prosecuting strangulation in those cases where there is evidence of pressure applied to the neck but proving an injury or loss of consciousness is difficult. This type of reform would provide an avenue for greater accountability for people who strangle. However, it would have very little or no effect on raising public awareness about the significance of strangulation.

6.18We note that general offences of endangering life are somewhat controversial. It has been argued that:167
6.19The United Kingdom Law Commission has recently discussed offences of causing danger in its Report Reform of Offences against the Person.168 That Report concluded that specific endangering offences may be justified when:
6.20Examples include dangerous driving, endangering the safety of aircraft and exposing children to danger.169 However, it concluded that general endangering offences cannot be justified because cases of endangering that are deserving of criminal punishment are already covered by specific offences.
162Criminal Code RSC 1985 c C-46, s 268. We described in Chapter 5 that this offence was considered adequate for prosecuting strangulation.
163Model Penal Code § 2112.
164Criminal Code Act Compilation Act 1913 (WA), s 304.
165Criminal Law Consolidation Act 1935 (SA), s 19(1).
166Crimes Act 1958 (Vic), s 22.
167CMV Clarkson “General Endangerment Offences: The Way Forward?” (2005) 32 UWA Law Rev 131.
168Law Commission of England and Wales Reform of Offences against the Person (Law Com No 361, 2015) at ch 7.
169At [7.34].