New strangulation laws in WA

The new offence of ‘suffocation and strangulation’ was recently introduced into the Criminal Code under section 298. This new law makes it an offence to ‘unlawfully impede another person’s normal breathing, blood circulation, or both, by:

  • manually, or
  • by using any other aid –
  1. blocking (completely or partially) another person’s nose, mouth, or both; or
  2. applying pressure on, or to, another person’s neck’.

This new offence carries a maximum penalty of 5 years imprisonment. If the offence is aggravated, the maximum penalty is 7 years imprisonment.

This is a significant change as conduct amounting to strangulation would normally fall under the offence of ‘common assault’ prior to the change, which only carries a maximum penalty of 18 months imprisonment. This demonstrates that Parliament now takes the view that strangulation is a far more serious offence than it was previously considered. This is likely because of the risks to human life that strangulation entails, and also the coercive and controlling behavior revealed by the offence.

Proof of the new offence involves a relatively low threshold, given the broad definition of the offence. Impeding breathing by applying pressure to another person’s neck, or by blocking their nose, mouth or both, does not necessarily require a significant degree of force and can be momentary. Despite this, the offence still carries a hefty maximum penalty. The maximum penalty is on par with the offence of ‘assault occasioning bodily harm’, which often results in a term of immediate imprisonment. That offence requires the infliction of actual bodily harm, rather than momentary impeding of a person’s breathing.

A conviction for the new offence of strangulation also counts as a ‘strike’ for the purposes of the offence of committing persistent family violence in section 300 of the Criminal Code. It also is a ‘strike’ for the purposes of being declared a serial family violence offender under the Sentencing Act.

While sentencing standards are still emerging, in a recent case in which the firm acted, a client who placed a victim in a headlock until they were unable to breathe, received a sentence of 2 years 6 months imprisonment following a plea of guilty. In another recent appeal case, an offender received 4 years 6 months imprisonment for an incident involving choking a victim with a belt. This was charged under the more serious offence contrary to section 304(2) of the Criminal Code.

If you have been charged with the new offence of strangulation and require expert advice and representation, don’t hesitate to contact James Jackson Criminal Defence today.

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