On 17 April 2020, the Court of Appeal delivered the decision of R v HBZ  QCA 73. The key points to take away are:
- Choking is an act which hinders or restricts the breathing of the victim
- It does not require proof that breathing was completely stopped
- It may be a short act and does not require a lasting injury to be caused
- Any differences between choking, suffocation and strangulation have no practical relevance, as the test applies to section 315A generally
Section 315A of the Criminal Code 1899 (Qld) establishes a crime of ‘choking, suffocation or strangulation in a domestic setting’. The offence was inserted pursuant to the Criminal Law (Domestic Violence) Amendment Act 2016 (Qld).
Although carrying a maximum penalty of 7 years imprisonment, the offence must proceed on indictment. Assault is not an element of the offence, having the effect of obviating any of the typical defences to assault under the Criminal Code.
As choking, suffocation and strangulation are not defined in the Criminal Code, the offence has been subject to much debate since its inception. It has been frequently argued that a complete cessation of breath is required to prove the offence. This approach was taken by the ACT Supreme Court, applying that state’s equivalent offence in R v Green (No 3)  ACTSC 96. Green was successfully applied in the Queensland District Court and resulted in a directed acquittal in R v AJB  QDC 169. Until HBZ, the Queensland Court of Appeal had yet to weigh in.
The relevant facts in HBZ
In this case, the Appellant was the complainant’s on and off partner. As she was calling the police, the Appellant put his hand around her neck, knocked her onto the bed and pinned her to the bed with his hand, causing her to struggle to breathe and rendering her unable to speak.
The complainant also described feeling pains in her chest, having ‘black spots’ in her vision and being unable to breathe for about 70 seconds.
Consistent with the prosecution’s particulars, the trial judge’s directions to the jury referred to their need to be satisfied that the Appellant’s acts hindered or stopped the complainant’s breath.
The issue on appeal: statutory interpretation
The broader construction of choking, including mere hindrance of breathing, was narrower than as an applied in Green and AJB and was the subject of the appeal. However, the Court of Appeal did not take such a narrow interpretation.
As a starting point, Mullins JA referred to the ‘purposive approach’ in statutory interpretation in accordance with section 14A of the Acts Interpretation Act 1954 (Qld) (‘AIA’). Given the dispute over the construction of 315A and the lack of definitions in the Act, Her Honour also considered section 14B of the AIA which allows consideration of extrinsic material to interpret a provision of an Act. Her Honour referred to the explanatory notes of the amending Act and the relevant Taskforce’s rationale. The explanatory notes acknowledged that the 315A offence would potentially infringe upon the rights and liberties of individuals but explained that it would be justified in order to provide protection and deterrence.
The Appellant contended for a narrow construction in accordance with Green, noting that section 315A is a penal provision (an offence provision). Mullins JA held at  that while 14A cannot create or extend criminal liability, it does not preclude application of the purposive approach to penal provisions.
Her Honour referred to the High Court’s decision in R v A2 (2019) 93 ALJR 1106, where Kiefel CJ and Keane J stated at :
“A statutory offence provision is to be construed by reference to the ordinary rules of construction. The old rule, that statutes creating offences should be strictly construed, has lost much of its importance. It is nevertheless accepted that offence provisions may have serious consequences. This suggests the need for caution in accepting any ‘loose’ construction of an offence provision. The language of a penal provision should not be unduly stretched or extended. Any real ambiguity as to meaning is to be resolved in favour of an accused. An ambiguity which calls for such resolution is, however, one which persists after the application of the ordinary rules of construction.”
In other words, ambiguities in interpretation must be resolved in favour of the accused, but this default is only reached after application of statutory interpretation principles which may include reference to extrinsic material to resolve ambiguities.
Mullins JA noted that Green was decided prior to A2. In applying the High Court’s approach, Her Honour found that consideration of the purpose of section 315A in the context of extrinsic material did not result in any ambiguity. Her Honour held, at  to :
“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. Even if the restriction of the breathing, as a result of the action of choking the victim, is of short duration, without any lasting injury and does not result in a complete stoppage of the breath of the victim, that will be sufficient, as the offence is directed at deterring that type of conduct from occurring at all.
To the extent that the reasoning in Green justified the construction that choking means stopping the breath, because of the difficulty of administering an offence which is based on restricting the breath, that concern can be addressed in respect of s 315A by focusing on the act that amounts to the choking, strangling or suffocating of the victim. 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. As the evidence in this trial illustrated, there were overt signs in the consequences the complainant described of her struggle to breathe, her inability to speak, the black dots in her vision, the pain in her chest, and her feeling disoriented from which it could be inferred there was some restriction of her breathing, as a result of the appellant’s hand around her neck. The consequence of the restriction of the complainant’s breathing was not a separate element of the offence, but the evidence required to prove the act of choking.”
At first instance, the Appellant in HBZ was sentenced after trial to two years and six months imprisonment to be suspended after serving half of his sentence. Mullins JA considered that this sentence was manifestly excessive and reduced it to two years imprisonment with parole release, rather than a suspension, at the halfway point.
The Court of Appeal’s earlier decisions of MCW  QCA 241 and R v MBD  QCA 283 were distinguished based on those offenders’ more serious offending and prior histories. HBZ was 34 with no prior history.
In our view, HBZ also serves as a useful yardstick in sentencing for isolated choking offences for offenders with limited history and is largely consistent with the District Court’s various sentences for 315A.