Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


R. v. Shramka, 2022 NZCA 299, July 7, 2022, at paragraph 42:

Drawing on Taueki, Nuku, Ackland and the legislative history reviewed earlier, we consider the relevant aggravating factors (relating to the offence) for strangulation to be these eight (which we list in logical chronological order):

(a) Premeditation: as noted in Taueki, the degree of premeditation and planning directly affects culpability.

(b) History of strangulation or prior very serious domestic violence: this factor is required to recognise the particular risk of strangulation as a precursor to a future fatal attack, and to recognise that there is a pronounced risk of fatality where strangulation is repeated. This factor is not meant to re-punish the defendant, but to recognise the increased risk of fatality for the victim.

(c) Vulnerability of the victim: as also noted in Taueki, this factor concerns the physical or psychological disparity between the offender and victim, enlarging the risk of injury and extending the psychological consequences for the victim.

(d) Home invasion/breach of protection order: we consider these two factors should be taken together, although the presence of both requires a more condign response. They recognise the right of the victim not to be harmed in her own dwelling place, whether or not reinforced by formal court protection order. Invasion of the sanctity of the home is an aggravating factor in all violent offending.

(e) Aggravated violence: repeated or extended strangulation, in particular where loss of consciousness arises, indicates, as Cooke J noted in Ackland, “a longer, purposeful period of strangulation warranting higher culpability”. To that we would add loss of control of bodily functions.

(f) Threats to kill: use of associated threats to kill is aggravating, given the coercive nature of the offending and the particular and enduring psychological consequences of strangulation, in which such threats have continued resonance.

(g) Enduring harm to the victim: enduring consequences (psychological or physical) are an aggravating factor, recognising the terror strangulation causes its victims.

(h) Harm to associated persons: as Cooke J noted in Ackland, “offending in the presence of children is aggravating, given the potential for physical or psychological harm to the children, and the potential longer-term adverse effect of the normalisation of such violence”.