Criminal Law – Choking
Our experienced criminal law solicitors have prepared a brief overview of the law relating to choking. If you or someone you care about is facing a charge of choking, you need specific advice and should contact Gatenby Criminal Lawyers on 55800120 for advice.
For more information on other criminal charges, visit our Criminal Law homepage.
Choking – The Law
Section 315A of the Criminal Code of Queensland creates the offence of choking. The section provides:
(1) A person commits a crime if—
(a) the person unlawfully chokes, suffocates or strangles another person, without the other person’s consent; and
(b) either—(i) the person is in a domestic relationship with the other person; or
Section 315A Criminal Code Queensland
(ii) the choking, suffocation or strangulation is associated domestic violence under the Domestic and Family Violence Act
The rationale for the offence is that even though one incident in the domestic context of choking, strangling or suffocating may not result in any serious injury, the conduct must be deterred, because it is inherently dangerous and experience shows that if it is repeated, death or serious injury may eventually result.
R v HBZ [2020] QCA 73 at 56
Elements of the offence
To be found guilty of the offence of choking, the prosecution is required to prove, beyond a reasonable doubt, the following elements:
- That the accused unlawfully (that is without excuse or justification);
- Choked, suffocated or strangled;
- Another person without the other person’s consent and;
- The person is in a domestic relationship; or
- The act was associated DV.
Maximum penalty
The maximum penalty for the an allegation of choking is 7 years imprisonment.
Jurisdiction – Where will the matter be heard?
The offence of choking is a indictable offence. The charge will be resolved in the District Court.
Comparative Sentences
R v HBZ [2020] QCA 73
Found guilty of choking in a domestic setting (domestic violence offence) and common assault (domestic violence offence) after trial before a jury in the District Court . He was successful in his application to appeal and sentenced to imprisonment for a period of two years with the parole release set at the half way period.
R v MCW [2018] QCA 241
Pleaded guilty to two counts of assault occasioning bodily harm (domestic violence offence), one count of choking, suffocation or strangulation in a domestic setting (domestic violence offence) and a summary charge of contravention of domestic violence order (aggravated offence). He was unsuccessful in his application to appeal against his sentences, including imprisonment of three years and six months for the offence of choking, suffocation and strangulation in a domestic setting.
R v MDB [2018] QCA 283
Pleaded guilty to common assault, threatening violence, assault occasioning bodily harm, choking in a domestic setting, wilful damage and associated summary charges. It was an aggravating feature of the offending that it was committed in contravention of a domestic violence order which resulted in one of the summary offences. The offender had a serious criminal history. He was sentenced to four years imprisonment for the choking in a domestic setting and lesser concurrent sentences for the other offences and given a parole eligibility date after serving 12 months.
Conviction – Does a conviction have to be recorded?
The sentencing Court has a discretion whether or not to record a conviction against you for the offence of choking. Generally a conviction would be recorded for a first offence for this type of offence.
The relevant factors are set out in section 12 of the Penalties and Sentences Act 1992, and include, the nature of the offence, the offenders character and age, together with the impact the recording a conviction would have on the offenders chances of finding employment. If you are concerned about a conviction being recorded on you or a loved you should seek legal advice.
Disclaimer
This website contains general information about legal matters. The information is not advice, and should not be treated as such. You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.
For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.
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