The 2011 murder of Rye mother Joy Rowley by her former partner sparked a full coronial inquest into the police response to domestic violence.1 State coroner Judge Hinchey found that Ms Rowley had been the victim of a number of instances of non-fatal strangulation by her former partner which had been reported to Victoria Police in the lead up to her murder. Judge Hinchey recommended a number of changes to Victoria Police procedure, and noted that the introduction of a stand-alone offence of strangulation, suffocation, or choking in Victoria could significantly help to ensure that this conduct is denounced commensurately to the risk that it poses to victims of the conduct.
In late 2023, the Victorian Government passed the Crimes Amendment (Non-fatal Strangulation) Bill 2023 ("the Bill") to create two new criminal offences which specifically target the act of non-fatal strangulation in circumstances where the accused person is a family member of the alleged victim. It is expected that these laws will come into effect prior to 13 October 2024.
Background to Victoria's New Legislation
The Coronial Inquest into the death of Joy Rowley revealed that strangulation is a common form of violence reported by family violence victims in 25-60% of incidents. Of note to this instance, it was found that victims of non-fatal strangulation were between six and seven times more likely than other victims of family violence to be killed in a future instance of family violence, and strangulation was the cause of death in 15% of deaths attributed to family violence.
In the Explanatory Memorandum which accompanied the bill, the government detailed that the offences are intended to target offenders who use non-fatal strangulation "as a means of terror and control" and is an attempt to stamp out behaviour that may lead to an escalation of violence.2 Further, the fact that this offence specifically required the existence of a familial relationship ensures more accurate reporting of instances of family violence generally, and family violence involving this form of strangulation specifically.
Understanding Victoria's New Legislation
The Bill creates two new offences in where non-fatal strangulation occurs, and the alleged victim is a family member of the accused person:
- Non-Fatal Strangulation;3 and
- Non-Fatal Strangulation Causing Injury.4
The definition of "strangle" within the act is broad and non-exhaustive but covers, as a minimum:
- any application of pressure to the front or sides of a person's neck; or
- any obstruction of a person's respiratory system; or
- impeding a person's respiration.
An injury as defined by s15 of the Crimes Act 1958 includes both physical injury and harm to mental health. Physical injury includes unconsciousness, disfigurement, substantial pain, infection with a disease and impairment of bodily function; while harm to mental health includes psychological harm, but does not include emotions such as distress, grief, fear or anger unless such emotions result in psychological harm.
It will be interesting to observe how the Court interprets "injury" in matters where non-fatal strangulation is alleged, particularly with respect to finding injury through psychological harm. Our experience has shown that there are many instances where the act of strangulation does not leave a physical mark, and on that basis there are likely to be many cases which turn on the existence of psychological injury.
Penalties
The maximum penalty for non-fatal strangulation is 5 years imprisonment,5 and the maximum penalty for non-fatal strangulation causing injury has a maximum penalty of 10 years imprisonment.6
The two penalties set out in the act are identical to the charges of Assault (5 years maximum penalty) and Intentionally Cause Injury (10 years maximum penalty), which are the offences that would have been charged in these factual circumstances prior to the introduction of the new offences. Therefore, the parliament is specifically identifying new offences for this type of conduct but not introducing a higher maximum penalty.
The purpose of the new offences may be to identify the seriousness of the conduct in cases of recidivist offending where repeated instances of this offending may indicate to police and judicial officers that more severe intervention and/or sanction is appropriate.
Defences
As the legislation specifically requires that the offending be "without lawful excuse", common law defences are available, with the exception of the defence of consent to offences which cause injury. These defences include lawful arrest and conduct in the course of everyday life.
The act also specifically legislates certain statutory defences, including, self-defence, duress and sudden or extraordinary emergency.
The defence of "consent" is not available to instances of non-fatal strangulation which cause injury but is available to alleged offences of non-fatal strangulation where no injury is caused. While the common law definition of consent applies in most circumstances, where the offence is alleged to have been committed in the context of consensual sexual activity, the statutory consent defence found in s34AF applies. This is a full defence in circumstances where the alleged victim consented to said strangulation, or the accused person reasonably believed that the alleged victim consented to the strangulation.
Section 34AG of the Bill defines consent as "free and voluntary" and provides a series of circumstances which do not amount to consent, or which may not be considered when determining if a person is consenting.
Community Concerns about Family Violence
While the conduct that amounts to non-fatal strangulation has always been illegal and covered by pre-existing offences, the Victorian Government's decision to specifically legislate this offence is evidence of the increased community concern surrounding family violence, and an intention to impose strict sentences, especially for subsequent offences.
Footnotes
1 J Hinchey, State Coroner, FINDING INTO DEATH
WITH INQUEST, Joy Maree Rowley.
2 Explanatory Memorandum, Crimes Amendment
(Non-fatal Strangulation) Bill 2023 p4.
3 S 34AE Crimes Amendment (Non-fatal Strangulation)
Bill 2023.
4 S 34AD Crimes Amendment (Non-fatal Strangulation)
Bill 2023.
5 S 34AE Crimes Amendment (Non-fatal Strangulation)
Bill 2023.
6 S 34AE Crimes Amendment (Non-fatal Strangulation)
Bill 2023.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.