Nonfatal Strangulation (Section 298) and related offences
Context and scope
This is the second part on violent offences against the person, focusing on nonfatal strangulation (NFS), wounding, and acts or omissions causing bodily harm.
NFS is often seen in family violence or intimate partner contexts, but the lecturer treats it as a distinct topic for sentencing implications.
There is also discussion of employment/ associates for judges (e.g., Judge Bubba Gallo) as a side note; not essential to the legal content but reflects judiciary context.
Note: The discussion emphasises not covering every offence, but a relevant selection for the week.
Statutory framework (WA Criminal Code)
Nonfatal strangulation is addressed primarily in s. 298 of the Criminal Code.
There are two pathways to conviction under s. 298:
s. 298(a): unlawfully impede another person’s normal breathing, blood circulation or both by blocking the mouth or nose (completely or partially) or by applying pressure to the neck; or
s. 298(b): an alternative offence of strangulation in the neck (often discussed as part of the same offence group).
An alternative offence is s. 313 (Common Assault).
Penalties (two-tier, with aggravation):
In circumstances of aggravation, maximum imprisonment is ; otherwise .
Summary conviction penalties: imprisonment and fine in aggravating cases; otherwise and .
The offence is an “either way” offence: it can be indictable in the District Court or the Supreme Court (if combined with other offences), or proceed summarily in the Magistrates Court.
Elements: s. 298(a) (mouth/nose blocking)
Identity: the accused is the person who committed the act.
The mouth or nose of the complainant was blocked completely or partially by the accused, using a hand or another object (e.g., tissue, pillow).
The blocking impeded the complainant’s normal breathing (causation).
Unlawfulness: the act was unlawful (see discussion under wounding regarding unlawfulness; relevant where the code is silent or where interpretive guidance is used).
The words of the section (s. 298(a)) focus on suffocation or strangulation through airway obstruction.
Elements: s. 298(b) (neck strangulation)
Identity of the accused; act causing strangulation or suffocation through pressure on the neck.
Impeded breathing or circulation as a result of neck pressure.
Unlawfulness (as above).
Important definitional points
Impeded breathing, per ordinary meaning: to obstruct or hinder the normal process of breathing. It does not require complete cessation of breathing or visible marks; expert evidence may be used to illustrate what is consistent with impeded breath in practice.
Consent is not a defence to NFS under s. 298; consent cannot justify suffocation or strangulation. This reflects Parliament’s assessment of the high risk and serious harm involved.
Because of the gravity and hidden nature of many NFS injuries, expert evidence is often led to explain typical or possible injuries even when external marks are limited.
The section’s title (suffocation and strangulation) reflects broader phrasing, but the core elements focus on airway obstruction and causation.
Aggravating features and sentencing context (NFS)
Aggravating factors commonly include: a relationship of trust or family relationship; acts behind closed doors; private domestic setting.
Reid (Supreme Court, Whitby J) emphasizes community condemnation to justify sentencing in offences of this kind, which can diminish the weight given to the offender’s personal circumstances and highlight general deterrence.
The second reading speech (Hansard) was cited to show Parliament’s concern that strangulation conveys power over a victim’s life and is a particularly dangerous form of violence in intimate relationships.
Research cited: strangulation/suffocation in intimate partner violence is a strong proxy indicator for future homicide risk (e.g., women experiencing NFS by an intimate partner are significantly more likely to be killed).
Pregnancy and related risk factors may further increase sentencing considerations in family violence contexts.
Wounding (Section 301) overview
s. 301(1): unlawfully wounds another person; s. 301(2): unlawfully and with intent to injure or annoy, or causes any poison/noxious thing to be administered or taken; both can carry aggravation.
Maximum penalties (non-aggravated vs aggravated):
aggravated, max ; otherwise .
Summary conviction penalties: (not explicitly restated here for 301, but generally provided in the same framework as other offences).
Wounding is an “either way” offence, with another layer of complexity due to the possible inclusion of intent and the nature of harm.
Unlawfulness in wounding: key points
The concept of unlawfulness for wounding is explained through Horton's discussion and the Divine/Regina authorities: unlawful means contrary to law and not excused.
Wounding does not have a statutory definition of “wound.” Divine and Regina define a wound as a break in the skin that penetrates below the epidermis but not through the full dermis; superficial scratches or grazes are not wounds (these may be assaults or AOBH instead).
Consent is not a defence to wounding; similar to NFS, the seriousness and risk factors influence sentencing rather than mere absence of consent.
The offence can be charged in various ways depending on the facts (e.g., use of a weapon or instrument, risk of greater harm).
The “intent to harm” concept (Section 304)
Two offences within s. 304:
s. 304(1): without the element of intent; the act unlawfully causes bodily harm or endangers life/health/safety.
s. 304(2): with intent to injure or annoy, or to cause any poison/noxious thing to be administered or taken, or to endanger life/health/safety; this carries a higher maximum penalty (up to ).
s. 304(3) defines “intent to harm” broadly, including acts to unlawfully cause bodily harm, unlawfully endanger life/health/safety, inducing others to deliver property or gain a pecuniary or other benefit, or stopping/compelling acts by someone who has a legal right to act. In short, intent to harm can encompass a wide set of states of mind and purposes.
The absence of an admissions statement does not preclude intent from being inferred: juries may draw inferences about intent from surrounding circumstances and evidence. Judges give inferences directions to guide this process.
The court notes that motive is immaterial to criminal responsibility in many contexts (except where expressly declared as an element of the offence).
Proving intent and the role of evidence (illustrative example)
A common judge’s illustrative approach to infer state of mind via surrounding circumstances:
Example scenario 1: Buying sausages at a supermarket with no accompanying statement; cannot infer intent.
Example scenario 2: If the person says, “I’m making hot dogs tonight,” alongside additional items consistent with that plan (onions, tomato sauce, hot dog buns), the totality of evidence supports the inference of intent.
This demonstrates how direct evidence (admissions) and circumstantial evidence (conduct and surrounding circumstances) are combined to infer intent.
Case-law and sentencing guidance for 304(1) vs 304(2)
Forrest v State of WA (appeal concerning Counts 304A and 304-1B on the same indictment):
Count 1 alleged intent to harm with bodily harm; Count 2 alleged unlawful act endangering the life/health/safety of another.
The court held that s. 304(2) requires intent to harm, and it suffices that the life/health/safety is or is likely to be endangered by the act, even without actual bodily harm.
Sentencing details from Forrest illustrate how the maximum penalties and the sentencing framework operate when both 304(1) and 304(2) charges are laid on the same indictment.
Quirk (precedent cited in Forrest): confirms that s. 304(2) can apply even if no actual bodily harm occurred, focusing on the risk endangering life/health/safety.
Forrest emphasizes three components in assessing seriousness under 304(2):
The nature and seriousness of the offender’s intent to harm,
The nature and seriousness of the bodily harm caused (if any),
The potential and actual risk to the victim’s life/health/safety, including the likelihood of serious harm.
Where injury occurs, it factors into aggravation; the absence of actual injury does not remove the seriousness if significant risk existed.
Forrest’s practical sentencing example: a five-year term for 304(2) with concurrent penalties for other counts can yield a total effective sentence of five years in certain scenarios; this shows the difference between the “intent to harm” offence and the actual harm caused.
Practical implications and considerations for exam or practice
The structure of 304(1) vs 304(2) demonstrates the distinction between harm caused and harm endangered by the act, with the latter carrying potentially higher penalties due to the risk element.
The breadth of s. 304(2) means prosecutors may charge broadly; defence arguments often focus on the specific intent and the actual risk/harms caused.
The sentencing approach emphasises: (i) the gravity of the intent, (ii) the actual or potential harm, and (iii) the context/culpability (including aggravating factors).
The interplay with NFS: the risk profile of strangulation includes a high risk of homicide; this informs deterrence and community condemnation as sentencing considerations.
Summary of key points to remember
NFS under s. 298 involves mouth/nose blocking (s. 298(a)) or neck strangulation (s. 298(b)); can proceed as an either-way offence; common assault under s. 313 is an alternative route.
Penalties depend on aggravation; aggravation includes family relationships, orders breached, children present, or victim aged 60+.
Impeded breathing is enough for NFS; consent is not a defence; expert evidence often supports the diagnosis of impeded breathing.
Wounding under s. 301 involves unlawfully wounding or unlawfully harming, with or without intent; the definition of a wound is a skin break penetrating below the epidermis but not necessarily full dermal depth; consent to wounds is not a defence; this offence often interacts with other offenses (GBH) in terms of charges and penalties.
Unlawfulness and the broad concept of intent to harm (s. 304(2)) are central to distinguishing offences and their penalties; intent can be inferred from surrounding circumstances; the maximum penalties reflect Parliament’s assessment of the seriousness of endangering life/health/safety.
Case law (Reid; Forrest; Quirk) emphasises deterrence, community condemnation, and the importance of risk assessment in sentencing for offences involving violence and harm.
Quick reference to statutes and concepts (for quick study)
Nonfatal strangulation:
Mouth/nose blocking or neck pressure (NFS): and
Common Assault:
Wounding: with subsections (1) and (2)
Intention/motive: (without intent) and (with intent); (definition and scope of “intent to harm”)
Aggravation:
Maximum penalties (illustrative): (aggravated NFS), (non-aggravated NFS); (summary for NFS in aggravation) and ; (fine);
(max for 304(2));Notation: all years and fines are cited as monetary or time maxima in the WA regime.
Endnote: practical exam tip
When reviewing facts, distinguish between harm actually caused (bodily harm) and harm endangered (risk to life/health/safety). This distinction will guide whether the charge should be framed as 304(1) vs 304(2), and how to argue aggravating vs non-aggravating sentencing factors. Include consideration of the context (family violence, private setting, relationships of trust) and potential mitigating factors (which may be less influential in cases of strangulation due to the seriousness of risk).