Domestic violence has been heavily covered in the media over the last few years, with several governments across Australia launching initiatives to raise awareness and judges facing implicit public pressure to apply harsher sentencing for offenders. In 2016, Queensland introduced laws which made strangulation a stand-alone offence, in comparison to other states which had arguably not taken the act of strangulation as seriously. The Queensland Sentencing Advisory Council (QSAC) recently released research data on sentencing outcomes during the first two years of the new stand-alone offence being in operation.
In this article, we look at the sentencing outcomes, find out whether there is a typical offender profile and check in with leading experts such as John Robertson (QSAC Chair, retired Judge of the District Court of Queensland and author of the Thomson Reuters loose-leaf and online service Queensland Sentencing Manual) on whether the new laws have been a success.
Is there a“typical” strangulation offender profile?
In May 2019, the QSAC, chaired by John Robertson, released a Sentencing Spotlight on choking, suffocation or strangulation in a domestic setting (Spotlight). The Spotlight analysed strangulation cases finalised in Queensland courts from 1 July 2016 to 30 June 2018 and revealed that offenders were typically male (98.3% – of the 287 offenders sentenced, only five were women), aged 20 to 29 years (the average age of offenders was 31.8 years; the youngest offender was 15, the oldest 60 years old), non-Indigenous (21% identified as Aboriginal and Torres Strait Islander) and sentenced on a plea of guilty (99% of offenders with strangulation as their most serious offence (MSO) pleaded guilty). Almost half of the finalised proceedings involved a breach of a domestic violence order at 49%.
What were the sentencing outcomes for strangulation offences?
Over the two years analysed, 404 strangulation cases were sentenced, involving 287 offenders who committed a total of 482 offences. Choking, suffocation or strangulation in a domestic setting carries a maximum penalty of seven years’ imprisonment. More than 76% of offenders were jailed and received an average sentence of 1.9 years imprisonment. The longest sentence imposed was four years.
What statute applies to strangulation in a domestic setting in Queensland?
Effective 5 May 2016, s 315A of the Criminal Code (Qld) provides that a person commits a crime if the person unlawfully chokes, suffocates or strangles another person, without the other person’s consent and the person is in a domestic relationship with the other person, or the choking, suffocation or strangulation is associated domestic violence under the Domestic and Family Violence Protection Act 2012 (Qld) (the DFVP Act). Under s 13 of the DFVP Act, a “domestic relationship” includes an intimate personal relationship, a family relationship or an informal care relationship. “Associated domestic violence” is defined under s 9 and includes domestic violence towards a child of an aggrieved.
Why was the stand-alone offence introduced?
The provision was inserted into the Criminal Code by the Criminal Law (Domestic Violence) Amendment Act 2016 (Qld). The Attorney-General and Minister for Justice Yvette D’Ath introduced the Bill into Parliament following a recommendation of the Special Taskforce on Domestic and Family Violence in Queensland (the Taskforce). Chaired by the Honourable Quentin Bryce AD CVO, the Taskforce was established in September 2014 and charged with defining the domestic and family violence landscape in Queensland and with making recommendations to the Premier.
In February 2015, the Taskforce released its report Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland. The report identified that strangulation, choking or suffocation was a key predictor of domestic homicide, and a sign of escalating violence and increased risk to the victim. The report recommended that a separate stand-alone offence was required to recognise this specific behaviour.
This finding was backed by research undertaken in the US. Gael Strack, CEO of the US organisation Alliance for Hope, called strangulation “the last warning shot”.
Has the introduction of the strangulation offence been a success?
In March 2019, Damien Carrick interviewed both Heather Douglas, Deputy Dean (Research) at the TC Beirne School of Law at the University of Queensland, and Betty Taylor, CEO of the Queensland-based Red Rose Foundation who works to eliminate domestic or family violence related deaths, on Radio National’s Law Report and asked both experts whether they thought the stand-alone offence was a success.
Heather Douglas believes that the laws have been a success in that non-fatal strangulations are being prosecuted when they might have otherwise not been prosecuted at all or might have been prosecuted as assaults. She thinks that there needs to be research into whether incarceration protects victims long-term, especially where the victim and offender resume their relationship at the end of the offender’s sentence. She wonders if some women will shy away from reporting strangulation because they do not want their partners to be charged and subsequently imprisoned.
Betty Taylor does not share those concerns. She maintains that in her experience women in Queensland are relieved that strangulation is documented and treated seriously by the law.
In a release published by QSAC on 22 May 2019, Chair John Robertson said that the introduction of the stand-alone strangulation offence had led to higher sentences being imposed, pointing to two recent decisions of the Court of Appeal in September and October 2018 : R v MCW [2018] QCA 241 and R v MDB [2018] QCA 283.
““Violence of this kind is a known predictor of escalating violence and increased risk to the offender’s domestic partner, and clearly police and prosecutors are taking this very seriously, pursuing this new offence through the courts,” Robertson added.
Prior to the judgments being handed down, Judges of the District Court were guided by Court of Appeal decisions dealing with assault causing injury in a domestic setting, such as R v Kelley [2018] QCA 18. The judgments delivered in R v MCW [2018] QCA 241 and R v MDB [2018] QCA 283 provide that a s 315A offence is objectively more serious than the offence of assault occasioning bodily harm and that such an offence should attract a higher penalty.
Based on the legal commentary highlighted on the topic of strangulation sentencing outcomes, we see how the legal landscape is changing in this area, arguably for the better. As to whether tougher sentencing outcomes for domestic violence acts such as strangulation will reduce how frequently they occur, we can only hope statistics will start to improve over time.
