Suffocation & Strangulation and Persistent Family Violence (WA)

On 9 July 2020, the Family Violence Legislation Reform Act 2020 established two new offences under the Criminal Code. These were the offence of suffocation & strangulation and the offence of persistent family violence. This article outlines what is involved in each of these offences and the penalties that apply.

The offence of Suffocation & Strangulation

As set out under section 298 of the Criminal Code, a person commits a crime if the person unlawfully impedes another person’s normal breathing, blood circulation, or both, by manually, or by using another aid blocking (completely or partially) another person’s nose, mouth, or both or applying pressure on, or to, another person’s neck.

Alternate Charge

Should the court not be satisfied that all elements of the offence of suffocation & strangulation have been proven beyond a reasonable doubt, common assault pursuant to section 313 of the Criminal Code is a prescribed alternate offence.

Penalty

The statutory penalty as set out under the Criminal Code is 7 years imprisonment if committed in circumstances of aggravation, or, in any other case, 5 years imprisonment.

Should the matter be dealt with in the Magistrates Court (a court of summary jurisdiction), the statutory maximum penalty for suffocation and strangulation is 3 years imprisonment and a fine of $36,000 if committed in circumstances of aggravation, or, in any other case, 2 years imprisonment and a fine of $24,000.

Persistent Family Violence

Under 300 of the Criminal Code, a person commits a crime if the person persistently engages in family violence. In addition to this charge, an accused may be charged with a prescribed offence as an alternate. It was Parliament’s intention should the persistent charge be unsuccessful; the accused may still be convicted of a prescribed offence (see below for prescribed offences).

What is ‘Persistent Family Violence?’

A person persistently engages in family violence if the person does an act of family violence on 3 or more occasions each of which is on a different day over a period not exceeding 10 years.

The charge must specify the period during which it is alleged the acts of family violence were committed, however, the dates need not be specified. The court is not empowered to order a prosecutor to provide further particulars of the dates and circumstances of the offences.

What is an Act of Family Violence?

The term ‘act of family violence’ is defined under the Criminal Code and it refers to a number of prescribed offences already contained in the Criminal Code. This includes:

• Common Assault pursuant to section 313 of the Criminal Code;
• Assault Occasioning Bodily Harm pursuant to section 317 of the Criminal Code;
• Suffocation & strangulation pursuant to section 298 of the Criminal Code;
• Indecent Assault pursuant to section 323 of the Criminal Code;
• Criminal Damage pursuant to section 444 of the Criminal Code; and
• Breach of a Family Violence or Violence Restraining Order pursuant to section 61 of the Restraining Orders Act 1997 (WA).

How is the evidence assessed?

For a person to be convicted of this offence, the court need only be satisfied of the general nature and character of the acts of family violence, and not the particulars of those acts as opposed to how the court would deal with individual charges which requires all elements of the charge to be proven beyond a reasonable doubt. 

This means that each juror, or the trier of fact, must be satisfied beyond a reasonable doubt that the accused person committed an act of family violence on at least 3 separate occasions within the alleged period.

Penalty

The statutory penalty as set out under the Criminal Code is 14 years imprisonment.

Should the matter be dealt with in the Magistrates Court (a court of summary jurisdiction) the statutory penalty is imprisonment for 3 years and a fine of $36,000.

Double Jeopardy

Should a person be convicted or acquitted of a persistent family violence offence, the person cannot, in separate or subsequent proceedings, be found guilty of a prescribed offence constituted by an act that was subject of the evidence for the purposes of proceedings.

The legislation makes it clear that nothing in the Criminal Code, allows a person to be punished twice for the same act. This is consistent with the common law principle of double jeopardy which means that a person cannot be tried twice for the same offence.

Seek Legal Advice

If you require legal representation in relation a charge of suffocation & strangulation or in any other legal matter, contact Armstrong Legal.

The court considers offences all family violence offences serious and almost always imposes strict protective bail conditions until the accused is either acquitted or sentenced. Our criminal team will help you to navigate the court system and represent you at your hearings with a goal to achieve the best possible outcome for you.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.