Strangulation and suffocation charges

Section 189A of the Crimes Act 1961 was inserted in December 2018. It captures conduct where a person intentionally or recklessly impedes another person's breathing or blood circulation by applying pressure to the throat or neck, or by blocking the nose or mouth.

The maximum penalty is seven years' imprisonment. It sits alongside, not instead of, the existing assault and injury offences — so the Crown can choose what fits the conduct.

The Law Commission's 2016 report set out the rationale. Two factors mark strangulation out from other forms of family violence. First, it is a powerful predictor of a future fatal attack — victims of family violence who have been strangled have seven times the risk of going on to be killed, compared with those who have suffered other forms of violence but not strangulation.

Second, strangulation characteristically leaves few marks or signs, sometimes even when life-threatening. That makes it hard to prosecute and easy to underestimate. Parliament wanted judges, in particular, to recognise the risk so that decisions about bail, protection orders and sentencing reflect the real danger involved.

When the Law Commission set the seven-year maximum, it described what the worst class of offending within scope looks like. Cases involving wounding or an intent to commit some other offence sit outside s189A — they get charged under existing serious violent offences.

The example given at paragraph 5.42 of the report is a perpetrator who breaches a protection order to enter the victim's home, strangles her on and off for several minutes leaving her struggling for breath, incontinent and unconscious, in circumstances where the victim believes she will die. The Commission identified the terror produced — and the resulting coercion and control — as the heart of the offending.

The leading authority on aggravating factors is Ackland v Police [2019] NZHC 312. Cooke J set out seven considerations that the courts weigh when assessing seriousness.

At the lower end, Cooke J described offending where strangulation is the intentional result of pressure being applied to the throat for a brief period, potentially without any of the seven aggravating factors present. His Honour indicated that such offending might attract a starting point of six months to two years' imprisonment.

From there, the starting point moves up sharply as aggravating factors stack. That is why the early forensic work — what really happened, what the relationship was, whether there was a protection order, whether the complainant lost consciousness — matters so much before any plea decision is made.