This speech was delivered on 28th May 2014 in the NSW Upper House. You can read the full debate online here.
Mr DAVID SHOEBRIDGE [5.37 p.m.]: On behalf of The Greens I speak to the Crimes Amendment (Strangulation) Bill 2014. This bill amends section 37 of the Crimes Act, which currently makes it an offence to attempt to choke, suffocate or strangle a person. Currently, the mental element required is that the person intended to commit an indictable offence. Schedule 1 item [1] repeals the current section 37 and replaces it with a new provision that contains two separate offences relating to choking, suffocation and strangulation. For the basic offence, a person is guilty if they intentionally choke, suffocate or strangle another person to render them unconscious or incapable of resistance and is reckless as to rendering them unconscious or incapable of resistance. The penalty for the basic offence is a maximum incarceration period of 10 years.
The aggravated offence is contained in new section 37 (2) and is made out if the person chokes, suffocates or strangles another person so as to render them unconscious, insensible or incapable of resistance and that they do so with the intention of committing another indictable offence. That aggravated offence carries a maximum penalty of 25 years imprisonment. As the Attorney General noted in his second reading speech, the background to the bill arises from concerns raised by the Director of Public Prosecutions [DPP] about the operation of current section 37, which was resulting many cases of strangulation being dealt with only as common assaults.
A common assault charge has a much lesser maximum sentence of only two years. They were being dealt with as the lesser offence of common assaults because of the difficulty of proving intention. This was despite the fact that many of the instances of strangulation that were proceeding as common assaults were clearly intended to intimidate the victim and some amounted to serious assaults that, in fact, rendered the victim unconscious. It was the level of offending that most ordinary people would have thought was a more serious offence than a standard common assault.
The Greens support the Crimes Amendment (Strangulation) Bill 2014 and note the work that has gone into updating this offence following feedback from the Director of Public Prosecutions. The Greens are concerned that there has not been full consultation with some of the usual stakeholders—such as the Law Society of New South Wales and the NSW Bar Association—and a broader discussion paper on the bill. However, we endorse the comments that the Attorney General made in his second reading speech regarding the high priority that needs to be given for the protection, in particular, of victims of domestic violence.
Research shows that strangulation is common in many domestic violence cases, to the extent that it is considered an indicator of the risk of further harm and an indicator of substantial escalation of violence in domestic settings. Strangulation is of itself a very serious form of violence. The bill has come about to address concerns that the current offence was not applicable in most cases of domestic violence because it required the intention to commit a separate indictable offence. It is also intended that though strangulation could properly be considered actual or grievous bodily harm, insofar as these offences rely on physical proof of the harm caused, they are difficult or indeed often impossible to prove in most strangulation cases. Often the suffocation prevents the victim from breathing but does not leave the kind of physical evidence that would allow a charge of grievous bodily harm to be maintained.
To consider strangulation as mere assault fails to recognise the seriousness of the offence and the impact it has on the victim. To allow victims who have been strangled, particularly in a domestic setting, to see the perpetrator charged and convicted only of common assault does not address the gravity of the offence. Particularly in the context of domestic violence, strangulation and choking are sadly very pervasive. Indeed, they reflect the exertion of power by the perpetrator as against the victim. In fact, strangulation is so much a characteristic of domestic violence that the United States of America has established a Training Institute on Strangulation Prevention, specifically tasked with “providing training and technical assistance to family violence professionals throughout the world on Domestic Violence and Sexual Assault Strangulation Crimes”. A paper from the training institute states:
- Strangulation is, in fact, one of the best predictors for the subsequent homicide of victims of domestic violence. One study showed that “the odds of becoming an attempted homicide increased by about seven-fold for women who had been strangled by their partner” (Journal of Emergency Medicine, 2008). Victims may have no visible injuries whatsoever, yet because of underlying brain damage due to the lack of oxygen during the strangulation assault, they may have serious internal injuries or die days, even weeks later.
The Greens note that under section 344A of the Crimes Act it will be an offence to attempt to commit any of the new offences under section 37. Whilst I note strong general support for the bill, I note also that my office has received a number of concerns from the Bar Association regarding this bill. The first concern is the aggravated offence does not specify that it must be committed “intentionally”, though the basic offence rather strangely does. The Greens accept the validity of that position of the Bar Association that if someone is to be convicted of an offence which carries a maximum sentence of 25 years, each of the elements must have been committed intentionally by the perpetrator. I foreshadow that during the Committee stage The Greens will move an amendment that inserts the requirement of intention.
Second, it is not explicit that the consent of the person being choked would be a defence to the basic offence. In discussions with the Government regarding the absence of a specific defence of consent, we have been advised that it intends the general common law to apply in this case where consent would be considered to be a defence to the more basic offence. I would hope that that matter is clarified by the Parliamentary Secretary in reply. However, it is because of that The Greens will be moving an amendment to put in place that specific defence. The third concern of the Bar Association is that the aggravated offence may be overly punitive applying to cases where the strangulation is committed with the intention to enable the commission of an indictable offence, but that indictable offence may be a relatively modest defence such as a further assault like a punch.
The Greens note the concerns of the Bar Association in that regard. However, given the strong evidence—particularly from the institute that I referred to earlier—as to the co-relation between strangling offences, serious domestic violence, escalation of violence, including escalation potentially to homicide, The Greens believe that the severity proposed for the aggravated offence is, in fact, warranted. It is with those comments and minor qualifications that The Greens indicate our support for the bill. We will discuss further the issue of intention during the Committee stage.