STRANGULATION

The Law Commission in 2016 created the offence of Strangulation stated in their report at 1.3

 

Two key factors distinguish strangulation from most other forms of family violence. First, it is an important risk factor for a future fatal attack by the perpetrator. Victims of family violence who have been strangled have seven times the risk of going on to be killed than those who have suffered other forms of violence but not strangulation. People who make decisions about the victim or the perpetrator (particularly judges) need to understand that risk so that they make decisions that will help to keep the victim safe. Second, it characteristically leaves few marks or signs, sometimes even when it has been life threatening. That presents unique challenges for prosecution and contributes to the dangerousness of strangulation being underestimated and the perpetrators not being held appropriately accountable.

 

In assessing factors relevant to the seriousness of the offending, and suggesting the maximum penalty of seven years’ imprisonment, the Commission said the following at 5.42

 

 

In setting the maximum penalty for this offence, we must consider the worst class of strangulation behaviour that should be captured, excluding behaviour that would be charged under another serious violent offence. Strangulation that results in injury or wounding, or for which there is evidence of an intention to commit another offence, is out of scope because such cases could be charged under existing serious violent offences.

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 An example of the worst class of strangulation within scope would feature the hallmarks of coercive or controlling behaviour and the terror we have identified. For example, a perpetrator enters the victim’s home in breach of a protection order. After an altercation, he strangles her with his hands on and off for several minutes, leaving her struggling for breath, incontinent and unconscious. The victim thinks she will die and knows that the perpetrator has the power to kill her. Because he invaded her home, after the strangulation, she lives in constant fear for her security and life. As a consequence, he has achieved coercion and control over her.

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 It is the terror that results from strangulation that is at the heart of this kind of criminal conduct. That terror is likely to seriously affect all aspects of the victim’s life. In our view, the terror that results from this “worst class of case” is greater than the harm of a minor injury and at least equivalent to a serious physical injury.

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AGGRAVATING FACTORS

 

In Ackland v Police [2019] NZHC 312 His Honour Cook J at listed the seven considerations of a strangulation charge in terms of aggravating factors at 26.

1. Offending in an intimate or family relationship

2. Accompanied by threats to kill

3. Loss of consciousness

4. Multiple offending incidents

5. Other violence injury

6. Threats to others

7. Breach of a Protection Order.

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His Honour Cooke J further stated at 30 that “At the lower end would be offending involving strangulation as an intentional result of pressure being applied to the throat for a brief period, potentially without any of the above factors being present. Such offending might attract a starting point of six months to two years’ imprisonment”.

 

The offence of strangulation is a serious offence, please contact me on 0220685117 for further advice

 

PD@Blomfieldlegal.co.nz

 

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