The Queensland Opposition introduced the Criminal Code (Choking in Domestic Settings) and Another Act Amendment Bill 2020 on the 20th of May this year. The offence of strangulation was criminalised in Queensland in 2016 following the Not now, not ever report. It has been the subject of some judicial consideration in recent times in relation to the definition of choke, suffocate and strangle. Including definitions in the Code will be helpful to all parties, although the proposed broad definition seems to encapsulate a wide range of offending which captures more than the traditional understanding of choking.
In R v HBZ  QCA 73, the Court of Appeal considered the trial judges direction that “‘Choked’ is an English word that bears its ordinary, everyday meaning – that is – ‘to hinder or stop the breathing of a person’. The Court, comprised of McMurdo and Mullins JJA and Boddice J accepted that the direction was appropriate. This Bill would widen the definition to an application of force, similar to a common assault. The clear intention of the Bill is to make the legislation the harshest in the country.
Just consider for a moment what it must be like to be a victim of strangulation. Think what it must be like to be pinned down by a much stronger partner, to feel their hands on your neck gripping your throat. Imagine the terror that you would feel in those circumstances, the fear that you would have for your life, the fear that you would have for your children and their lives. No-one—no-one should ever suffer that. We must protect victims of domestic violence in any way we can. We must protect victims from domestic violence, from this terrible crime. It is the clear responsibility of the government of the day to work towards fixing any error they find..Mrs Frecklington, Leader of the Opposition, Hansard 20 May 2020, 985
The explanatory notes indicate that the policy objectives of the proposed bill are to:
- Strengthen the offence of offence of choking, suffocation or strangulation;
- Address the ambiguity of the words “choke”, “suffocate” or “strangle”;
- Increase the maximum penalty; and
- recognise the seriousness of the offence by classifying the offence as a serious violent offence.
The offence of Choking, suffocation or strangulation in a domestic setting is contained within section 315A of the Criminal Code. The current provisions do not define the terms ‘choking’, ‘suffocation’ or ‘strangulation’. As a conseqence the court has been called upon to consider the terms and has essentially relied upon their ordinary meaning. This Bill proposes to take a very broad approach and insert a definition into section 315A(3) of the Code:
- “Choke” – includes apply pressure to the person’s neck;
- “strangle” – includes apply pressure to the person’s neck;
- “suffocate” – includes obstructing or interfering with the operation of any part of the person’s respiration system or accessory system of respiration.
Currently the maximum penalty for this offence is seven (7) years imprisonment. The Bill proposes to double that with a maximum penalty of 14 years.
Serious Violent Offence
The Bill also proposes to include the section 315A offence of Choking, suffocation or strangulation in a domestic setting in schedule 1 of the Penalties and Sentences Act 1992, as a Serious Violent Offence (“SVO”). The effect of this is that a prisoner sentenced to 10 years imprisonment or more will serve a mandatory 80% of their sentence in custody. The SVO declaration will be discretionary where the prisoner is sentenced to less than 10 years imprisonment.
The Bill has now been referred to the Legal Affairs and Community Safety Committee for consideration.
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