Effective from 13th October 2024, the Crimes Act 1958 (Vic) will include two additional offences.
- The offence of non-fatal strangulation involves the intentional act by an individual to choke, strangle, or suffocate a family member. If convicted, this offence carries a maximum penalty of 5 years’ imprisonment.
- The offence of non-fatal strangulation intentionally causing injury involves the intentional act by an individual to choke, strangle, or suffocate a family member, resulting in injury. If convicted, this offence attracts a maximum penalty of 10 years’ imprisonment.
In cases where the involved parties are not family members, the accused may face charges under the existing offence of intentionally causing injury, in accordance with section 18 of the Crimes Act 1958 (Vic). This offence carries an identical maximum penalty to that of non-fatal strangulation intentionally causing injury. The introduction of a separate offence aims to improve the monitoring of risks associated with family violence.
The term “chokes, strangles, or suffocates” is non-exhaustively but comprehensively defined as follows:
- Applying pressure to the front or sides of a person’s neck.
- Obstructing any part of, or interfering with the operation of, a person’s respiratory system or accessory systems of respiration.
- Impeding a person’s respiration.
One of these actions is enough to satisfy the definition.
Defences
Non-Fatal Strangulation
The offence of non-fatal strangulation permits common law defences, including consent, lawful arrest and actions conducted in the course of everyday life. Additionally, statutory defences such as self-defence, duress, and response to sudden or extraordinary emergencies are available.
In the context of sexual activity, the defence of consent differs from the traditional common law approach. Common law allows the accused to argue they believed consent was given, without needing that belief to be reasonable. However, legislative amendments provide a different application of the defence of consent in relation to this offence, requiring affirmative consent in the context of sexual activity. This means both parties must freely and voluntarily indicate agreement. This change is to ensure uniformity across sexual offences, which are increasingly adopting affirmative consent within the legislative framework.
Non-Fatal Strangulation Intentionally Causing Injury
The offence of non-fatal strangulation intentionally causing injury includes almost all the same defences, barring that of consent, which is not an available defence.
Given the absence of consent as a defence, the legislation establishes a specific defence if the conduct occurs in the course of a procedure carried out in good faith for medical or body modification purposes. This provision safeguards genuine medical procedures or consensual body modifications from being captured by this offence.
The offence of non-fatal strangulation permits common law defences, including consent, lawful arrest and actions conducted in the course of everyday life. Additionally, statutory defences such as self-defence, duress, and response to sudden or extraordinary emergencies are available.
Why the Change
The Crimes Amendment (Non-fatal Strangulation) Bill 2023 (Vic) was prompted by community concerns and advocacy efforts. This legislative change aims to enhance Victoria’s response to family violence incidents involving strangulation or choking.
These amendments can be traced back to the Victorian Royal Commission into Family Violence in 2016, followed by the Family Violence Multi-Agency Risk Assessment and Management Framework. The framework highlighted the severity of strangulation and choking as significant risk factors commonly used by perpetrators.
The death of Joy Rowley in 2011 and the coronial inquest into her demise in 2018, brought this issue into the spotlight. Joy, aged 60, was found dead, with her former partner subsequently convicted for her murder. Prior to her death, multiple instances of domestic violence were reported, including at least one incident of strangulation.
These legislative amendments signify an acknowledgment of the increased risk faced by individuals who have been victims of such offences. Attorney-General Jaclyn Symes, when introducing the initial bill in October 2013, remarked that acts of non-fatal strangulation constitute “particularly damaging, heinous crime[s] that often lead to catastrophic outcomes.”
The introduction of these new, standalone offences is designed to highlight the ongoing and mounting danger encountered by victims of such offences. It aims to empower Victoria to address the issue of escalating family violence and provide victims with a dedicated avenue to report these specific experiences more effectively.
Further the specific offence listed among an accused’s criminal priors will reflect precise context of that past offence. This enhanced insight was previously unavailable without additional investigation.
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