Murray Torcetti Lawyers are criminal lawyers in Caboolture. We write our own case notes from recent criminal decisions for internal purposes.
However, unlike your annoying sibling, we don’t mind sharing.
Facts: After a trial, the defendant was convicted of a count of ‘choking’ under s 315A of the Criminal Code. An altercation occurred between the complainant the defendant after the complainant kicked the defendant out of the house. The defendant made his way back into the shared bedroom where the defendant went to grab the phone out of the complainant’s hands. The defendant put his hands around the complainant’s neck, the defendant pinned the complainant to the bed with his hands to stop her from speaking. She tried to speak, the words didn’t come out and she struggled to breathe.
The defendant used his hand so that it was in a “V” around her throat using his body weight as the force to stop her from speaking. The defendant was sentenced to 2 years and 6 months, suspended after serving 15 months for an operation period of three years.
The defendant argued choking which has not been defined in the Criminal Code and the Court of Appeal should take a narrow construction.
Finding:
After spending considerable time evaluating and interpreting what the meaning of choking is, Mullins JA, with whom McMurdo JA and Boddice J agreed held at [57]:
“…chokes must be construed as the act of the perpetrator that hinders or restricts the breathing of the victim and does not require proof that breathing was completely stopped, although the hindering or restricting of the breathing would encompass the stopping of breathing. The act of choking will not be proved, unless there is some detrimental effect on the breathing of the victim, because otherwise it would not constitute the act of choking.”
The sentence was varied to 2 years imprisonment with a parole release at the halfway point
Notes for practice:
- Choking has been examined; the interpretation has now been established by the Court of Appeal.
- A comparative case for choking for the relatively new charge.
It is worth noting Judge Coker in the recent matter of R v AJB [2019] QDC 169 had interpreted “choking” to mean a cessation of breath. At paragraph 22 page 9, Judge Coker interpreted element as being “The consistent theme in terms of “choke”, “suffocate”, and “strangle” involve a stopping of breath, not a restriction in the ability to breathe.”
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