New law could lead to a cultural shift
Family violence has not always been viewed as a crime.
For decades, police would be called to "domestics", only to settle the peace and leave. But the introduction of the Family Violence Act in 2004 created a dramatic shift in how police could investigate abuse.
For former Tasmanian detective David Plumpton, the laws were one of the more significant changes in policing during his 41-year career.
"When I joined as a constable, family violence was referred to as a domestic, and detectives were never involved. When you would go to a domestic, your job was really to keep the peace, and try and get the parties talking, there was never any real investigation of a crime, it was seen as just a private matter involving a married couple," he said.
"Coppers would be in, and out, the lady didn't want to make a complaint, and all these excuses were used - he was sleeping it off, or things had settled down.
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"But it wasn't just a domestic, it was an assault, and later in my career when the new legislation came in, detectives were involved, you didn't need to have the victim make a statement, it was obvious what had occurred."
With the new laws also came a cultural shift, and a change in how people viewed family violence. It was no longer limited to physical abuse.
"When I joined there was never any discussion regarding emotional or financial abuse, and women stayed in violent relationships because of emotional or financial blackmail," Mr Plumpton said.
"That abuse has always been there, but now it is being named up for what it is."
While Tasmania was the only state to include emotional abuse as part of its family violence laws, Mr Plumpton said there was one area that could be improved, and that was how the justice system deals with victims strangled by their partners.
The Family Violence Reforms Bill 2016 saw a new criminal code charge introduced for assaulting a pregnant woman, which the state government said would "hold perpetrators of family violence to account".
But Tasmania remains the only state not to commit to this kind of standalone offence for non-fatal strangulation.
"We changed the law for assaults on pregnant women, we recognised the seriousness of it," Mr Plumpton said.
"So why can't we do that for choking? We need to do it now, and do it in a hurry.
"Think about someone being choked, you are looking into their face, it is not a one second thing where you punch someone and that is it, you are holding them down, you can see them struggling to breathe, and you know this can kill them.
"As a detective, of many years, when you investigated an assault, if there was an element of choking, it meant to you as the investigator that this was something more than an assault, this was an extremely serious matter and it should be a separate charge."
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In the 2019-20 financial year, there were 1550 family violence incidents reported in the North, and 5883 statewide.
During those incidents, nearly 50 per cent of offenders were taken into custody by police, 676 were affected by alcohol, and 339 had drugs in their system.
Nearly 1000 of those of those offenders had also breached police family violence orders, while another 956 had breached family violence orders.
The most recent Tasmania Police report in September revealed there had been 1436 family violence incidents and arguments in that month alone, 373 of which took place in the North.
"There have been all these changes, and every single one of them has made society safer, yet women are still being murdered by men," Mr Plumpton said.
"Yes there are male victims, but 99 per cent are women, and this is about stopping a crime in our community. The end result of family violence is death."
How Tasmania currently penalises the offence
Tasmanian Attorney-General Elise Archer has fallen short of promising a standalone offence for non-fatal strangulation in the state, but has reiterated her commitment of "strong and robust" laws for the offence.
In August 2019 Tasmanian coroner Olivia McTaggart recommended the government consider making "choking, suffocation or strangulation" an individual indictable offence.
The recommendation came after Tasmanian woman Jodi Eaton was murdered by Darren Dobson - a man who had at least five recorded instances of choking women he knew.
Less than two years before Ms Eaton was murdered Dobson was bailed on a charge of common assault he received for strangling his former partner.
While Ms Archer did not make a commitment to enacting the offence, the coroner's recommendations are currently being reviewed by the Sentencing Advisory Council - a body that provides advice to the Attorney-General on sentencing in Tasmania.
The Examiner reported on December 9 that the state government said there was no certainty the SAC would recommend a standalone offence.
Ms Archer said of the SAC review, "I want to be absolutely clear there are no perverse outcomes or unintended legal consequences".
Queensland was the first state in Australia to introduce a standalone offence for non-fatal strangulation.
Professor Heather Douglas provided integral submissions leading to strangulation becoming a standalone offence in Queensland and said it took about 18 months for the law to be enacted after the initial report.
Ms Archer has said that there are safeguards in the current Tasmanian law which can charge non-fatal strangulation under assault or persistent family violence laws. These assault charges range from less serious summary offences to indictable criminal code assaults.
Senior law lecturer at the University of Tasmania Dr Caroline Spiranovic said these existing offences can be as effective as what a standalone non-fatal strangulation offence may be in terms of sentencing.
"We have some options in terms of existing offences where if applicable the maximum penalty might be a lengthy term of imprisonment that is higher than what the maximum penalty might be for a standalone offence of non-fatal strangulation," she said.
In Queensland the offence reads, "choking, suffocating or strangulation in a domestic setting" and has a maximum penalty of seven years imprisonment. The legislation reads the same way in South Australia, and has the same maximum penalty.
Similarly in Western Australia, the most recent state to introduce the standalone offence, the legislation explicitly defines "suffocation and strangulation" in the Family Violence Legislation Reform Act passed in 2020.
New South Wales introduced a non-fatal strangulation amendment to existing legislation that eliminated the requirement for a victim to be rendered unconscious or unable to resist.
In Western Australia the crime is charged as a criminal code offence or summary offence. Criminal charges carry a minimum 5 year sentence and maximum seven year sentence. Summary offences carry a hefty financial penalty of $24,000 or more along with two or three year prison sentences.
Possible "perverse outcomes"
Professor Douglas reiterated that care must be taken when enacting a standalone offence for non-fatal strangulation because of the possibility of "unintended legal consequences".
One of those consequences could be making victims reluctant to report abuse for fear of a longer sentence for their abuser. She also noted a lack of nuance about what strangulation actually means.
Dr Spiranovic agreed that it was important to consider all elements, including sentencing, when creating new legislation.
"We want our laws and responses to non-fatal strangulation to recognise the seriousness of this act of violence, but introducing a standalone offence might not necessarily be the best way to achieve this or to guarantee the safety of victim survivors or prevent further instances of violence," she said.
In Queensland there were close to 500 charges laid in the first year of the offence being enacted into the law.
This was a trend that carried across national borders with 899 charges laid in the first year of the offence in New South Wales and 291 in the first six months in South Australia.
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How current sentences look
The nuance Professor Douglas discussed can make for a legal grey area when it comes to convictions. In Tasmania whether non-fatal strangulation it is regarded as a criminal or summary offence rests on various factors, as discussed in the Tasmanian Department of Public Prosecutions' Prosecution Policy and Guidelines.
These range from subjective decisions over the length of time of strangulation, to whether the victim became unconscious and whether there was an accompanying threat to kill.
On November 19 this year Joshua Blair Read was charged in the Hobart Supreme Court with persistent family violence and sentenced to three years imprisonment.
The charge encapsulated nine acts including an assault relating to strangulation.
The sentencing comments from Justice Michael Brett revealed that Read became enraged after going through the contents of the complainants phone before threatening to kill her before starting to strangle her.
"It is not clear how far you would have gone if you had not been disturbed by the complainant's housemate," Justice Brett said.
On July 31 last year a man was charged in the Hobart Supreme Court with persistent family violence. In sentencing Justice Stephen Escourt detailed four separate acts of strangulation that culminated in the charge.
Justice Escourt said the fourth time the complainant was strangled she began to suffer a seizure.
"Being choked caused excruciating pain in her throat. She felt as though she had dissociated from real life and believed she was going to die during the seizure," he wrote.
On September 2 that year Jordan Mark O'Brien pleaded guilty in the Hobart Supreme Court to two charges of assault, both instances of non-fatal strangulation.
He was 19 at the time of the charges and Justice Alan Blow said in his sentencing comments that he had no significant prior convictions.
Justice Blow also said, "you applied pressure to her throat to such an extent that you left bruises and grazes".
For the charges O'Brien received a $300 fine.
- The Examiner launched its family violence campaign - Fighting Back - last month. To read more, visit www.examiner.com.au.
- You can join the fight by voting to encourage the government to make the promise of a standalone offence here.
- For those seeking help, Family Violence Counselling and Support Service is available on 1800 608 122 from 9am to midnight weekdays, and 4pm to midnight on weekends and public holidays.
- Telephone and online counselling is available at 1800 RESPECT or by calling 1800 737 732.
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