Despite the short time frame that this charge has been available, we have had countless clients who have been charged with what is commonly known as the “strangulation” charge.
This is a relatively serious charge, as reflected in the maximum penalties available discussed below.
What is strangulation?
A person who unlawfully impedes another person’s normal breathing, blood circulation, or both, by manually, or by using any other aid –
- blocking (completely or partially) another person’s nose, mouth, or both; or
- applying pressure on, or to, another person’s neck –
commits a crime and faces a maximum penalty of:
- 7 years imprisonment, if committed in circumstances of aggravation and the matter is dealt with on Indictment (in the District Court);
- 5 years imprisonment in other cases and the matter is dealt with on Indictment (in the District Court);
- 3 years imprisonment and a fine of $36,000 if committed in circumstances of aggravation and the matter is dealt with summarily (in the Magistrates Court);
- 2 years imprisonment and a fine of $24,000 in other cases and the matter is heard summarily (in the Magistrates Court).
This is a relatively new offence, having only been inserted into the Criminal Code as an offence in 2020.
The criminal trial
Last year, our client was charged with strangulation, by impeding the complainant’s normal breathing through pressure on their neck.
Earlier this year, the matter was heard in a two day trial in the Magistrates Court before a Magistrate.
We briefed experienced trial counsel for this matter to appear at the trial along with our lawyers Arina Mundy and Yasmin Mah.
The central issues at trial were – was the complainant’s normal breathing impeded through our client placing pressure on their neck, and if so, was there an honest and reasonable but mistaken belief that there was consent?
Defence that the Act did not occur
The prosecution is required to provide evidence, by way of a complainant or witness, that the act did in fact occur. They must firstly prove that the complainant’s normal breathing was impeded, and secondly, that it was impeded due to our client placing pressure on their neck. They must prove this beyond reasonable doubt.
Our client chose to give their version of events at trial and explained that the incident did not unfold in the way that the complainant alleged.
Defence of Mistake of Fact
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
For example, if the Magistrate believes that the accused person has done something believing that he or she had consent to do that thing, and that belief was honest and reasonable, then they must find the accused not guilty.
Similarly, if the defence of mistake of fact raises reasonable doubt as to what actually happened, then the Magistrate must find the accused not guilty.
The criminal trial’s outcome
Our client was found not guilty of the strangulation charge and acquitted. This meant that our client was released from their bail undertaking and conditions, and will not have a criminal conviction on their record.
We also made an application for costs, which was granted, so that our client could recoup what they had spent on legal fees.
If you have been charged with a strangulation charge, and would like legal advice as to any legal defences and prospects of success at trial, please contact Chambers Legal on (08) 9500 8915 or at [email protected].