Suffocation and Strangulation and Persistent Family Violence (WA)

In Western Australia, the Criminal Code Act contains an offence of suffocation and strangulation as well as an offence of persistent family violence. These offences were introduced in 2020, because of the recognition of a need to acknowledge patterns of abuse in family violence settings. The introduction of these specific criminal charges represents a significant step forward in addressing domestic violence and protecting vulnerable victims from escalating abuse patterns. This page outlines the offences of suffocation and strangulation, and persistent family violence in Western Australia.

What is strangulation?

Strangulation occurs when a person's ability to breath is restricted by pressure being applied outside their throat. Strangulation can cause death very rapidly. It can also lead to the death of a victim days or even weeks later due to blood clots, stroke or brain damage.

Victims of strangulation that occurs in a family violence context are statistically much more likely to become victims of fatal assaults. Research indicates that domestic violence victims who have been strangled are seven times more likely to become homicide victims. Non-fatal strangulation is considered a significant predictor of attempted homicide and represents one of the most lethal forms of domestic violence.

Medical consequences of strangulation

The medical implications of strangulation are severe and can be life-threatening. Even when strangulation doesn't result in immediate death, victims may experience ongoing health complications including difficulty swallowing, voice changes, memory problems, and neurological issues. These injuries often require immediate medical attention and ongoing treatment.

Suffocation and strangulation

Under section 298 of the Criminal Code Act, a person is guilty of a crime if they unlawfully impede another person's breathing, blood circulation, or both by manually or by using another aid:

• blocking the other person's nose, mouth or both; or
• applying pressure on or to another person's neck.

This offence is punishable by a maximum penalty of five years imprisonment, or seven years imprisonment if the offence occurs under circumstances of aggravation.

When a person is found guilty of this offence summarily (in the Magistrates Court or Children's Court) the maximum penalties that apply are as follows:

• For an aggravated offence, three years imprisonment or a fine of $36,000
• For any other offence, two years imprisonment or a fine of $24,000.

Elements of the offence

To prove a charge of suffocation and strangulation under Western Australian law, the prosecution must establish that the accused unlawfully impeded another person's ability to breathe or restricted their blood circulation. The impediment can be achieved through manual force or by using objects or aids to block breathing or apply pressure to the neck area.

Circumstances of aggravation

Circumstances of aggravation under the Criminal Code Act can include factors such as the relationship between the accused and victim, the vulnerability of the victim, or whether the offence occurred in the presence of children. These aggravating circumstances significantly increase the potential penalties and reflect the serious nature of such violent conduct.

Common assault

Under section 313 of the Criminal Code Act, a person is guilty of a simple offence if they unlawfully assault another person. A person who commits a simple assault is liable to a penalty of up to three years, or a fine of up to $36,000 if the assault is aggravated, or to imprisonment for up to 18 months or a fine of up to $18,000 under other circumstances.

A person who commits an assault consisting of strangulation may be charged with a common assault as an alternative charge to suffocation and strangulation. However, the specific suffocation and strangulation charge under section 298 carries more severe penalties, recognizing the particular danger and severity of this type of violent conduct.

Persistent family violence

Under section 300 of the Criminal Code Act, a person is guilty of a crime if they persistently engage in family violence. This is punishable by a maximum penalty of 14 years imprisonment. If a person is found guilty of this offence summarily, the maximum penalty that applies is three years imprisonment or a fine of $36,000.

A charge of persistent family violence must specify the date range during which the conduct is alleged to have occurred but need not specify the dates of individual instances of violent conduct. For a person to be found guilty of this offence, the court must be satisfied as to the general nature and character of the acts of violence. It need not be satisfied as to the particulars of the individual acts as it would have to do if the accused were charged with individual counts of assault.

A person who is found guilty of persistent family violence, may not (in the same, separate or subsequent proceedings) also be found guilty of a separate offence consisting of one of the same acts that make up the offence of persistent family violence.

Definition of family violence

Under Western Australian law, family violence encompasses various forms of abusive behavior between family members, including physical violence, sexual abuse, emotional or psychological abuse, economic abuse, threatening behavior, coercion, and any behavior that controls or dominates a family member and causes fear for their safety or wellbeing.

Evidence and prosecution considerations

Prosecuting suffocation, strangulation, and persistent family violence cases presents unique challenges in the Western Australian criminal justice system. These offences often occur in private settings with limited witnesses, making evidence collection crucial for successful prosecution.

Medical evidence

Medical evidence plays a vital role in proving strangulation and suffocation charges. Healthcare professionals are trained to identify and document signs of strangulation, including petechiae (small red spots), bruising patterns, and other physical indicators that may not be immediately visible to untrained observers.

Digital evidence and documentation

In persistent family violence cases, digital evidence such as text messages, emails, photographs, and social media communications can establish patterns of abusive behavior over time. This type of evidence helps prosecutors demonstrate the ongoing nature of the violence required for persistent family violence charges.

Legal defenses and court proceedings

Defendants facing charges of suffocation, strangulation, or persistent family violence in Western Australia may raise various legal defenses depending on the circumstances of their case. Understanding these potential defenses is important for both legal practitioners and those involved in such proceedings.

Self-defense and lawful justification

In some cases, defendants may claim they acted in self-defense or were protecting others from immediate harm. However, the courts carefully scrutinize such claims, particularly in family violence contexts where there may be a history of abuse or power imbalances between parties.

Disputed evidence and identification

Defense strategies may focus on challenging the reliability of evidence, questioning witness testimony, or disputing the identification of the alleged perpetrator. The burden remains on the prosecution to prove guilt beyond reasonable doubt for all elements of these serious criminal charges.

Frequently Asked Questions

What is the difference between suffocation and strangulation charges in WA?

Both suffocation and strangulation are covered under the same section 298 of the Criminal Code Act. Suffocation typically involves blocking the nose or mouth to restrict breathing, while strangulation involves applying pressure to the neck to restrict breathing or blood circulation. Both actions fall under the same criminal offence with identical penalties.

Can someone be charged with both persistent family violence and individual assault charges?

No, under Western Australian law, a person cannot be found guilty of both persistent family violence and separate charges for the same acts that comprise the persistent family violence offence. However, they may face charges for different acts that occurred outside the timeframe specified in the persistent family