A New Era for Strangulation

By John Munro

A new offence for the crime of strangulation or suffocation case into force in December 2018 after attracting the attention of the Law Commission. 

Prior to the new charge, strangulation was often under charged as more minor domestic offence, such as a male assault female charge with a two year maximum sentence, where there had been no signs of injury.  
In fact, strangulation always had the hallmarks of a serious violent offence regardless of visible signs of injury. 

Since then, there have been very few appeals in the senior courts of New Zealand.

Most notable are the two High Court cases of Ackland v Police and the case of T v Police. 

These two appeals have set the framework of sentencings to come and a worthy of some note.

In Ackland, the High Court discussed key culpability factors of offending from the Law Commission's report and set three bands of offending. The key culpability factors identified were:

• Strangulation in the context of a domestic or intimate relationship/vulnerability of victim;
• Threats, particularly threats to kill;
• Loss of consciousness;
• Multiple events;
• Other violence/injury;
• Significant impact on others; and
• Breach of protection order.

These factors were meant as a guide (capable of amendment) for the courts to assess the gravity of the offence. The three bands identified were:

• Lower range – 6 months to two years  - strangulation as an intentional result of pressure being applied to the throat for a brief period. Potentially without any of the above factors being present.
• Mid range - where a starting point of two to five years may be appropriate.
• Higher range - a starting point of five to seven years’ imprisonment - offending with a number of the factors being present

In T v Police, which followed Ackland, the High Court warned against applying a rigid banding approach with strangulation sentencings because it had:

“… potential to restrict an examination of the complexities of this form of offending…..”
".… it was necessary for the Courts to undertake a full evaluation of he circumstances of each case in a domestic context and be aware of and responsive to the impact of this offending on victims.”

It appears that Ackland can be used to set the board category of the offence within the maximum sentence and aggravating factors of the offending, but with flexibility and care not to loose sight of a full evaluation of circumstances and effect on the victim. 

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