Chapter 7
Additional options for reform

Aggravating factor for sentencing

7.2In large part, an offender’s accountability is demonstrated by the sentence imposed. Therefore, we have examined options for addressing the sentencing of offenders.

7.3Legislation does not generally prescribe the precise sentence that an offender should receive, only the maximum penalty for the most serious cases. The actual sentence imposed is a matter for the sentencing judge’s discretion. In making that decision, the judge must evaluate a wide range of often competing matters including the purposes of punishment, the gravity of the offending, the characteristics of the offender (including their degree of culpability) and the effect on the victim.174 He or she must arrive at a sentence that is tailored to the case, consistent with sentences in other similar cases and reflects the totality of offending. Our justice system recognises that, given this range of competing considerations, sentencing judges require a wide discretion.

7.4Therefore, there are only a few ways the sentences imposed for strangulation can be influenced. First, as already discussed, we could establish an offence carrying a higher maximum penalty. Second, judges could be offered education about family violence generally, and strangulation specifically, to help them understand the significance of this type of behaviour and its effects. We address this option in more detail below. Third, strangulation could be added to the list of factors that may aggravate an existing offence and, thus, see a sterner sentencing response.

7.5The Sentencing Act 2002 provides a list of 15 aggravating and 10 mitigating factors that must be taken into account to the extent they are applicable to a case (and are not the subject of the charge itself). Strangulation could be added to the list of aggravating factors, which already include:

7.6There is nothing to prevent a judge from considering strangulation as an aggravating factor for sentencing, even if it is not included in the statutory list of aggravating factors. The matters in that list are not exhaustive. However, our reading of published sentencing decisions and consultation with lawyers and other participants in the criminal justice system indicates that judges, and others who deal with family violence but are not specialists, often do not appear to recognise the terror of strangulation or the risks associated with it.

7.7While specifying strangulation as an aggravating factor would clearly signal that strangulation increases culpability, it would also have a broader effect on the criminal justice system. It would send a clear message that strangulation is particularly serious and must not be viewed lightly at any stage of the criminal justice process. This will be particularly relevant if a strangulation charge is initially laid but subsequently amended to a lesser charge. The inclusion of strangulation as a statutory aggravating factor would stand as a reminder that it should not be removed from the summary of facts and indication that it may increase the ultimate sentence.176

7.8Consistent with our conclusion about a specific offence of strangulation, we do not consider that any specification of strangulation as an aggravating factor should be limited to family violence circumstances. It could be argued that the terror of strangulation in family violence circumstances is particularly acute due to the intimate relationship and so the ongoing scope for and likelihood of fear, coercion and control resulting from strangulation. However, we consider that the terror or other harm of strangulation in non-family violence circumstances is also significant enough to justify an increase in the sentence imposed and is likely to be under-recognised by the sentencing judge.

7.9Finally, we have considered whether strangulation is best considered as a tailored offence or left to sentencing discretion. When strangulation is an aggravating factor, the judge has discretion as to the weight he or she accords it for sentencing. When strangulation is an element of the offence, there is a blanket, automatic increase in the maximum penalty applicable (and so to the starting point for sentencing), and Police and prosecutors use their discretion to determine whether there is sufficient evidence to lay the charge.

7.10This issue was discussed in the 1998 Report on the Model Criminal Code by the Australian Attorneys-General Model Criminal Code Officers Committee.177 The Committee took the view that, while there are no generally articulated or agreed guidelines on the question whether and when it is desirable, as a matter of principle, to make a matter one for trial or for sentence, generally the question should be determined by whether the legislature considers the aggravating factor should be the subject of decision by a jury for the purposes of determining guilt or innocence.178

7.11We consider that there are no theoretical impediments to strangulation being either an element of a separate offence or an aggravating factor for sentencing. The two serve different purposes. As an element of an offence, Parliament sends a message that this behaviour should be criminalised. As an aggravating factor for sentencing, the judge is considering the individual culpability of the defendant and extent to which strangulation increases that culpability over and above the criminality of the behaviour for which he or she was convicted. We consider that, if a person is convicted of a generic violent offence, any strangulation aspects of that offending could be understood to increase culpability because of the unique terror associated with it. It should be noted, however, that the principle of totality means that this culpability would not be double-counted, so strangulation could be relevant as an aggravating factor only in sentencing for generic violent offences.

174Sentencing Act 2002, s 8.
175Crimes Act 1961, s 9(1).
176We note that the Solicitor-General’s Prosecution Guidelines already preclude the omission of any material fact from the summary of facts for the purposes of a plea arrangement. See At [186]. However, whether or not a fact is “material” is always a matter of judgement and therefore subject to the prosecutor’s understanding of the relative seriousness of the facts.
177Model Criminal Code Officers Committee - Standing Committee of Attorneys-General Model Criminal Code - Chapter 5: Non-Fatal Offences Against the Person (1998) Chapter 5: Non-fatal offences against the person.
178At 113.