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. 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.
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.
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.
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.
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