Choking, suffocation or strangulation in a domestic setting

A serious charge with serious consequences.

Have you neen charged with Choking, suffocation or strangulation in a domestic setting and are and looking for more information?

Being charged with Choking is a serious, the consequences for pleading guilty or going to trial and losing are sever. The charge has been written to capture acts of domestic violence, which by its nature often means there are no 3^rd party or independent witnesses to the alleged incident, the strength of the charge will likely be dependent on the credit of the complainant and any medical evidence that supports the complainant’s version.

Case law is still developing, when first introduced, a custodial sentence (with actual time) was all but certain, then the meaning of “choking” was limited but subsequently widened by the court’s interpretation of the legislation. There has also been recent authority to suggest a term of imprisonment is not the only sentence open to sentencing judge.

Murray Torcetti Lawyers prepare a Defence Assessment for all our clients. If you have been charged with Choking, suffocation or strangulation in a domestic setting, a Defence Assessment will take some of the uncertainty out of the situation and help you plan the best approach moving forward. More information about the Defence Assessment can be found here.

What does the Prosecution need to prove beyond resonable doubt?

Charges can be broken down it the ‘elements’ of the offence where the lawyers then examine the evidence the police may hold and your instructions to test the strength of the charge. The “elements” are the puzzle pieces of a charge. If all elements can be proven beyond reasonable doubt and no defences are raised successfully at a trial, you could be found guilty of the charge. Below are the elements of the charge.

Element 1 - A person

Element 2 - Unlawfully

Element 3 - Chokes, suffocates or strangles another person

The act of choking requires that the defendant hinders or restricts the breathing of the complainant. The act of choking does not require proof that breathing was completely stopped. The act of choking requires some detrimental effect on the breathing of the complainant. See R v HBZ [2020] QCA 73 the Court of Appeal said:

“[57] … In order to achieve the purpose of the introduction of this offence, ‘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 restriction of the breathing would encompass the stopping of the 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. …

[58] … There is no choking, if the perpetrator merely puts his or her hands to the neck of the victim. In order to amount to choking, there must be some pressure that results at least in the restriction of the victim’s breathing. …”

Element 4A - The person is in a domestic relationship with the other person

Element 4B - The choking, suffocation or strangulation is associated domestic violence under the Domestic and Family Violence Protection Act 2012

Some of the things your lawyer will be aware of

Where is the source of the charge at law?

What is the maximum penalty for the charge

What court will hear the charge?

All charges in Queensland start in the Magistrates Court in the geographical location the offences is alleged to have occurred. Some charges must go the District and Supreme Courts (for example, a charge of Murder will go to trial in the Supreme Court but will start in the Magistrates Court). Some charges like public nuisance must stay in the Magistrates Court. Sometimes either the defence or prosecution can choose where the charges are heard.

Choking, suffocation or strangulation in a domestic setting must be sent to the District Court.

Are there alternate charges? or Risk Factors?

What are some of the Defences to Choking, suffocation or strangulation in a domestic setting

Self-Defence – Section 271(1) of the Criminal Code

Like many other defences in criminal law the defence of self-defence is complicated and more nuanced than “they hit me first”. The defence has limitations on the force used in different circumstances. Your lawyer will need to review the facts, law and your instructions to determine if the defence is open to you and form a strategy to wield the defence in a way that best works in your unique case.

Compulsion – Duress s 31(1)(c) Criminal Code

In certain circumstances the law offers a defence if we are compelled to act to resist the violence of others. The Queensland Criminal Code calls this ‘compulsion’ and says, for present purposes, that a person is not criminally responsible for an act if that person does the act because it is reasonably necessary to resist a threat of actual and unlawful violence to themselves or property.

Like all defences. The law of defences is nuanced. Your lawyer will need to review the facts, law and your instructions to determine if the defence is open to you and form a strategy to wield the defence in a way that best works in your unique case.

Can the charge be 'Case Conferenced'?

For criminal charges in Queensland, your defence lawyer will review your charges, the possible evidence and your instructions to start negotiating the charges. The aim of case conferencing for defence lawyers is to place you in the most favorable position by resisting charges and facts that are not supported by evidence, law or contrary to your instructions.

Case Conferencing – Disclosure

At the start of your case, you are provided the police version of the facts but not the evidence relied upon. Your lawyer will seek the disclosure of materials to clarify the facts further or determine the strength of the case against you.

Example: After an incident at the local pub, you have been charged with assault occasioning bodily harm. The police facts note the incident was recorded on CCTV and have sought the CCTV be disclosed to see if the footage supports the police version (or have left out important facts supporting your version) and medical records.

Case Conferencing – Facts

You might wish to plead guilty to the offences, but the police materials are different to your version of the events. Defence lawyers propose amendments, additions or removal of facts so the matters do not need to go to hearing. From a defence perspective, the purpose of conferencing on the facts is to remove irrelevant information or facts that may result in a higher sentence.

Example: CCTV records you striking a person several times. The police facts state it was "5 punches", but the footage is unclear. Through case conferencing the facts were amended to “struck the victim a number of times” or “the complainant was struck twice”.

Case Conferencing – The Law

If the charges are not supported by the evidence the prosecution has, the lawyers suggest the charge be withdrawn or reduced to a lesser offence. If the law provides a mitigation or defence to your charges, your lawyer will conference with the prosecution to seek the charge be withdrawn.

Example: You have been charged with assault occasioning bodily harm, however the medical evidence does not support the charge. As a result of conferencing, the charge was amended to the less serious charge of common assault.

Case Conferencing – Charges

Charges are not set in stone after the police issue with the notice to appear or you are released on bail. Often the police will “over charge” and though the process of case conferencing more appropriate charges are agreed to.

Example: The charge of Choking, suffocation or strangulation in a domestic setting does not require the element of assault to be proven. However, in some cases a charge of common assault or even assault occasioning bodily harm might be a preferable charge. Wherever possible, your Murray Torcetti Lawyers will be negotiating with the prosecution for a lesser charge if you instruct us to take that approach.

What you can do to mitigate penalty if you are pleading guilty to Choking, suffocation, or strangulation in a domestic setting?

Demonstrate Employment

Demonstrating employment through a letter of employment assists the court to see you are productive and able to maintain responsibilities whilst being a member of the community. The letter could address your responsibilities, how long you have been employed and your attitude towards work.

Your Murray Torcetti Lawyer will review the letter of employment ahead of court to ensure all important points are addressed in the letter.

Letters of Reference

Character references assist the court by showing you have other parts to your character. You are more than a moment in time as read out by the prosecutor. You may be an active member of the community, provide support to a person in need or be able to demonstrate this was out of character.

Before the court date your Murray Torcetti Lawyer will review the references to ensure the letters achieve what is intended by the people who have taken the time and effort to assist you at your sentencing date.

Letters of Remorse

Attend Counselling

Offer compensation / Resitution

Before making any offers of compensation or restitution it is important to make you have been given legal advice. You may be admitting guilt where you have a defence. Or, if not done correctly you may be seen to be attempting to 'buy your way out of trouble' which will not go down well for you in court. However, genuine offers of compensation are one way to demonstrate genuine remorse for you behaviour to both the complainant and the courts.

Review of the Case Law

At the date of sentencing, both the Prosecution and Defence lawyers will offer to the court cases to support the sentence the are arguing is most appropriate. Your Murray Torcetti lawyers and counsel will be reviewing cases that are like your situation where the lowest possible sentence was imposed and seek to persuade the court why the defence cases are more appropriate than the prosecution cases.

Our Lawyers who defend this offence

Solicitor & Director

James Torcetti

Solicitor

Grant Young

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Brisbane Office

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07 5414 4209

Caboolture Office

4/13 King Street

Caboolture, Queensland

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T.M - 2021

I must say, when simply Listening is the hardest thing people find to do properly on this planet, Miles is fantastic. His ability to listen come from a fantastic Attitude overall. I was very very happy with all that this firm did for me. I have absolutely no hesitation to recommend these guys to any of my friends or colleagues. Thank you.

B.N - 2021

Mr James Torcetti, Legal Practice Director, had total control of my case and represented me each time we went to court. I didn't have to appear in court except for the first time and the main time, being the final outcome. James gave me confidence and my self respect back, with his high standard of ethics. James made me feel comfortable and went out of his way to do his best to keep on top of things referring to my case, for the best outcome. I was overjoyed with the outcome of my case as I was convinced I would be walking out the back door instead of the front door and James was very truthful with me and never sugarcoated my situation. James also gave me the opportunity to make weekly payments to pay off his account.
I highly recommend Mr James Torcetti, and would definitely use his services again, however I hope I don't have to.

M.C - 2021

Murray Torcetti Lawyers were engaged to assist with providing legal advice for a criminal case and to get the best possible outcome without prejudice or judgment. It has been a long hard haul for the family and we have had a successful outcome. This didn’t come easy for both parties, there were some challenges but all the way through we were kept informed of progress and potential outcomes and potential strategies to ensure the best result. They have been a brilliant to deal with (even when there was bad news), they have remained compassionate, professional and responsive at all times and for this my family is very grateful. Well done and thank you.