Choking + Strangulation ¦ Brisbane Criminal Defence Lawyers

s315A Criminal Code 1899 makes it an offence to Choke, Suffocate or Strangle a person in a domestic relationship.

What the prosecution must prove.

The prosecution must prove that:

1. The defendant unlawfully choked, suffocated, or strangled the complainant.

2. The choking, suffocation, or strangulation was unlawful.

3. The complainant did not consent.

4. The defendant and the complainant were in a domestic relationship with each other.

What it means.

“Domestic relationship” has a specific legal meaning. It includes people in an intimate personal relationship, a family relationship or a care relationship. It extends to the children and relatives of the people in the relationship and children who usually live with them.

Not all romantic relationships are intimate personal relationships. Simply dating someone or sleeping with someone will not in itself constitute a domestic relationship.

The prosecution must prove a domestic relationship to prove the offence. If a domestic relationship is not proved the Court must find a defendant not guilty irrespective of whether the act of choking, suffocation or strangulation is proved on the evidence.

The law expressly states that an assault is not an element of the offence. This means the defence of Provocation is not available.

The terms “choking”, “suffocation” and “strangulation” are not defined by the law. It is the ordinary dictionary meaning of those words that applies.

The available defences.

Self-defence and defence of another

Accident

Involuntary intoxication

Consent

The usual penalties.

The maximum penalty for the criminal offence of Choking is 7 years imprisonment.

The maximum penalty is a poor numerical indicator of sentences usually imposed.  It plays a very important role in setting the seriousness of an offence. The maximum penalty is hardly ever imposed.

This is a relatively new offence. The Queensland Court of Appeal has not considered the correct sentence for the offence. Sentences in the District Court have generally included fulltime imprisonment with a release datew between 3 and 6 months. Those cases all appear to involve an offence committed in breach of an existing domestic violence order making them more serious.

It is important to seek expert advice before dealing with a criminal offence of Choking, Suffocation or Strangulation.

Factors that affect the appropriate penalty include the extent of the force, the surrounding conduct including further violence or demeaning behavior, and whether there is a breach of a domestic violence order.

book a complimentary initial consultation with an accredited specialist

LEARN ABOUT SIMILAR OFFENCES

Assault Occasioning Bodily Harm
Assault Police
Common Assault
Grievous Bodily Harm

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    Cavanagh Gillies Criminal Lawyers

    CHOKING

    s315A Criminal Code 1899 makes it an offence to Choke, Suffocate or Strangle a person in a domestic relationship.

    What the prosecution must prove.

    The prosecution must prove that:

    1. The defendant unlawfully choked, suffocated, or strangled the complainant.

    2. The choking, suffocation, or strangulation was unlawful.

    3. The complainant did not consent.

    4. The defendant and the complainant were in a domestic relationship with each other.

    What it means.

    “Domestic relationship” has a specific legal meaning. It includes people in an intimate personal relationship, a family relationship or a care relationship. It extends to the children and relatives of the people in the relationship and children who usually live with them.

    Not all romantic relationships are intimate personal relationships. Simply dating someone or sleeping with someone will not in itself constitute a domestic relationship.

    The prosecution must prove a domestic relationship to prove the offence. If a domestic relationship is not proved the Court must find a defendant not guilty irrespective of whether the act of choking, suffocation or strangulation is proved on the evidence.

    The law expressly states that an assault is not an element of the offence. This means the defence of Provocation is not available.

    The terms “choking”, “suffocation” and “strangulation” are not defined by the law. It is the ordinary dictionary meaning of those words that applies.

    The available defences.

    Self-defence and defence of another

    Accident

    Involuntary intoxication

    Consent

    The usual penalties.

    The maximum penalty for the criminal offence of Choking is 7 years imprisonment.

    The maximum penalty is a poor numerical indicator of sentences usually imposed.  It plays a very important role in setting the seriousness of an offence. The maximum penalty is hardly ever imposed.

    This is a relatively new offence. The Queensland Court of Appeal has not considered the correct sentence for the offence. Sentences in the District Court have generally included fulltime imprisonment with a release datew between 3 and 6 months. Those cases all appear to involve an offence committed in breach of an existing domestic violence order making them more serious.

    It is important to seek expert advice before dealing with a criminal offence of Choking, Suffocation or Strangulation.

    Factors that affect the appropriate penalty include the extent of the force, the surrounding conduct including further violence or demeaning behavior, and whether there is a breach of a domestic violence order.

    book a complimentary initial consultation with an accredited specialist