Recommendations for reform
Are there unintended consequences?
8.32The main argument we encountered against a specific strangulation offence is that, like all specific offences, it would increase the complexity and confusion already apparent in the Crimes Act’s offence framework. The issue of specific offences was examined by the Law Commission in Review of Part 8 of the Crimes Act 1961: Crimes against the person. That Report concluded that Part 8 lacks a clear organising principle and a consistent approach to maximum penalties. While that Report examined offences of assault of specific victims, the same concerns apply to offences relating to specific forms of assault, such as strangulation, as follows:
- They complicate charging decisions, making two or more options available (the specific and the generic), which will inevitably produce inconsistent results.
- They arbitrarily single out aggravating factors—aggravating factors should not be elements of an offence but should be taken into account on sentencing.
- They give rise to a “slippery slope” effect—if we create a specific offence in one area, it will be hard to resist doing so again in many other areas, resulting in a patchwork of offences without logical or coherent structure.
8.33That Report recommended the repeal of many specific offences including “assault on a child”, “male assaults female”, “assault with a weapon” and “acid throwing”, and the enactment of a matrix of six offences that would form the core of Part 8 of the Crimes Act, as follows:
188 Causing serious injury with intent
(1) Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to injure any person, causes serious injury to any person.
(2) Every one is liable to imprisonment for a term not exceeding 4 years who causes serious injury to any person by assaulting any person or otherwise acting with reckless disregard for the safety of others.
189 Injuring with intent
(1) Every one is liable to imprisonment for a term not exceeding 10 years who, with intent to injure any person, injures any person.
(2) Every one is liable to imprisonment for a term not exceeding 3 years who injures another person by assaulting any person or otherwise acting with reckless disregard for the safety of others.
189A Assault with intent to injure or common assault
(1) Every one is liable to imprisonment for a term not exceeding 5 years who, with intent to injure any person, assaults any person.
(2) Every one is liable to imprisonment for a term not exceeding 2 years who assaults any person.
8.34The six offences were generic, attempting to cover the full range of culpability and consequences of physical violence. The Report recommended that any specific aggravating factors should be addressed in sentencing rather than in the offences. These recommendations were not adopted by the government.
8.35It remains the Commission’s view that Part 8 lacks a clear organising principle and a consistent approach to maximum penalties. Part 8 would benefit from reorganisation to introduce a logical approach to assessing the seriousness of offences based on harm and intent. This issue is outside our current the terms of reference, but it is interesting to note that, even if the 2008 Report’s recommendations had been taken up, charging problems would remain in respect of family violence strangulation. The offences proposed in the 2008 Report require proof of either an injury or an intent to injure, both of which are often difficult to establish in relation to strangulation.
8.36Finally, we record that we continue to recognise the merit of arguments against specific offences, as outlined in the 2008 Report. However, even proponents of a simplified offence framework acknowledge that, sometimes, specific offences are required to address gaps in the law. The evidence is clear that such a gap exists in relation to strangulation, and we do not consider that a new offence would unreasonably increase the complexity of the current framework.