Criminal Law and Pro-s1-full 5

Acknowledgments and context

• Speaker begins with an acknowledgment of the traditional custodians: Whadjuk Noongar people, paying respects to elders past, present, and emerging.

• Session focus: Part two (of the sequence) on violent offences against the person, specifically nonfatal strangulation (NFS), wounding, and acts or omissions causing bodily harm.

• NFS context: While NFS could fit in family violence discussions, it is treated separately here due to its seriousness and relevance to sentencing.

• Career-related aside: A casual digression about a judge (referred to as Bubba Gallo/Barbagello) seeking a new associate; advice about applying early for associates/ushers in the District Court; process varies by judge; CVs can be kept on file for pools.

• Judge Barbagallo/Barbagello: Primarily a criminal practitioner; previously Deputy Director of the ODPP; criminal specialist.

• Technical setup: Jump from section 298 to 301; note on skipping 300 (persistent family violence) to be discussed in a future family violence week; emphasis that only a selection of offenses will be covered in depth.

• Clarification on scope: Not all offences will be examined; students should note others exist but are not all tested on in the exam.

• Administrative note: The lecturer plans to use arrows to zoom out/in on slides if needed.

Nonfatal strangulation (NFS) – statutory basis and overview

• Section referenced: $298$ of the Criminal Code.

• Structure of the offence: A person commits NFS if they unlawfully impede another person’s normal breathing, blood circulation, or both by blocking the nose/mouth (completely or partially) or by applying pressure on or to the neck, using hands or other aids.

• Two pathways to conviction (two pathways within the offence):

  • Pathway A: Blocking the mouth/nose (suffocation/strangulation) appears in $298(A)$.

  • Pathway B: Applying pressure on the neck (strangulation in the neck).

• Related/alternative offence: $313$ (commonly referred to as common assault in the discussion).

• Notation used in class: The lecturer uses the shorthand “NFS” for convenience, not to minimize the offence, just to ease discussion.

• Penalties and modality (either-way offence):

  • Indictable maximums with aggravation: $7 ext{ years}$ imprisonment; otherwise $5 ext{ years}$ imprisonment.

  • Summary conviction penalties: with aggravation, maximum $3 ext{ years}$ imprisonment and a fine of $36{,}000 ext{ dollars}$; otherwise $2 ext{ years}$ imprisonment and a fine of $24{,}000 ext{ dollars}$.

• Circumstances of aggravation (cross-ref to $221$):

  • Being in a family relationship; breaching an order; children present; victim on or over the age of 60.

  • These aggravators are used to justify the harsher penalties in aggravating circumstances.

• Core elements of the offence (A and B):

  • Element A (mouth/nose): The accused blocked completely or partially the complainant’s mouth or nose (could be with the hand or with another object such as tissue, pillow, etc.).

  • Element B (neck): The accused applied pressure on or to the complainant’s neck.

  • Causation: The blocking impeded the complainant’s normal breathing.

  • Unlawfulness: The act was unlawful (unlawfulness is a key element; see discussion under the wounding section for how ‘unlawful’ is interpreted in the absence of a specific statutory definition).

• Unlawfulness and common-law meaning: Unlawfulness is a broader concept invoked when a section does not define it; for NFS, the code’s express words set the conduct, and unlawfulness is assessed in context (see wounding discussion for treatment of “unlawful”).

• Impeded breathing: Ordinary meaning; it is not required that breathing be completely blocked or that there be a clear mark; impeded breathing includes any interference with the normal breathing process.

• Consent: Consent is not a defence to NFS; lack of consent cannot be used to justify NFS; the risk and dangerousness of strangulation/suffocation override any consent given.

• Expert evidence: Often led in NFS cases to show what breathing impairment might look like in practice; not always strictly required but commonly used to illustrate the effects.

• Sentencing considerations for NFS:

  • Aggravating features include private/relationship context (family violence), trust-based relationships, and the private nature of the offence.

  • Judicial philosophy on sentencing: In Reid, Justice Whitby emphasized the condemnation of the community for such offences and noted that personal circumstances of the offender may carry less weight; general deterrence is a key consideration.

  • Government/legislative context: The second reading speech and Hansard extracts emphasize the serious, life-endangering nature of strangulation and its strong link to risk of homicide, especially in intimate-partner contexts.

  • Pregnancy risk: Highlighted as a significant risk factor in family violence contexts (noted as a future topic, e.g., family violence).

• Research and policy implications discussed:

  • The lecturer cites research showing that non-fatal strangulation in intimate-partner contexts strongly correlates with future homicide risk; figures cited include women who experience non-fatal strangulation are more than seven times as likely to be killed.

  • These data influence sentencing policy, bail considerations, and protective measures for victims of strangulation in intimate-partner settings.

• Practical courtroom notes:

  • Experts may be used to explain the physical indicators of impeded breathing, which may not always be obvious by appearance alone.

  • The context of a “private” violence setting can be treated as an aggravating factor under the relevant provocation and aggravation provisions.

Wounding – section 301; elements, unlawfulness, and related offences

• Core statutory basis: $301(1)$ and $301(2)$ (as discussed in the transcript) of the Criminal Code.

• Structure of the offence:

  • $301(1)$: Unlawfully wounds another person.

  • $301(2)$: Unlawfully wounds another or unlawfully and with intent to injure/annoy, causes any poison or noxious thing to be administered or taken by any person.

• Penalties and modality (indictable vs summary):

  • Indictable maximums: The offence carries a higher maximum penalty; the exact figure is discussed in relation to analogous offences and sentencing practice (the transcript emphasizes the seriousness and the range of penalties, including long sentences in aggravated contexts).

  • Summary penalties: Also exist but the transcript notes the need to check for the specific figure in practice; the Forrest case is used to illustrate how similar offences with an intent