New legislation will criminalise non-fatal strangulation under two stand-alone offences

The offence of non-fatal strangulation will carry a maximum penalty of 10 years’ jail under new legislation aimed at protecting vulnerable Victorians.

Family violence perpetrators who strangle their partners will now face up to 10 years behind bars under new laws aiming to protect vulnerable Victorians.

The Allan government will on Wednesday introduce legislation criminalising non-fatal strangulation under two new stand-alone offences.

The offence of non-fatal strangulation, where a perpetrator intentionally causes injury, will carry a maximum penalty of 10 years’ jail.

While a lesser offence of intentional non-fatal strangulation, which will not require proof of injury, will carry a maximum penalty of five years’ jail.

The offence of non-fatal strangulation will carry a maximum penalty of 10 years’ jail. Picture: iStock

Currently, someone who strangles their current or former partner, but does not kill them, can be charged with recklessly or intentionally causing injury or serious injury.

However, these offences require the prosecution to prove the person was injured.

The family of murdered Mornington Peninsula mum Joy Rowley had been pleading with the government to introduce these new offences for years following her tragic death in 2011.

The mum of three was smothered to death by James Mulhall in her Rye home eight months after he had choked her unconscious.

Mulhall moved into her home in January 2011 and though he believed they were partners after they were intimate once, Ms Rowley thought they were more like friends.

In February that year, he choked her and threatened to kill her with a knife, but police doubted they had enough evidence to convict him of assault.

Eight months later, he strangled her with his hands and a necktie, before fatally smothering her with a pillow.

He pleaded guilty to murder and was sentenced to 19 years ­behind bars.

Mum of three Joy Rowley was smothered to death inside her Rye home in 2011. Picture: Domestic Violence Victoria

Ms Rowley’s children say these new laws could have protected their mother, with police accepting there were multiple missed opportunities to potentially prevent her death.

Research shows a person who survives non-fatal strangulation by a current or former partner is seven times more likely to be seriously ­injured or murdered by them.

Coroner Sara Hinchey, who held an inquest into Ms Rowley’s death in 2018, said a stand-alone offence of strangulation would more effectively “hold perpetrators to account” who seek to exert power and control of their victims.

“Charges requiring (proof of injury) can be difficult to make out in the context of strangulation, given that there is often a lack of visible physical injury from strangulation,” Coroner Hinchey said.

If prosecutors are unable to prove injury, they may charge the perpetrator with unlawful assault, but that only carries a maximum penalty of three months’ imprisonment.

James Mulhall smothered Ms Rowley to death in Rye months after choking her unconscious.

Attorney-General Jaclyn Symes said the government had listened to the concerns of families affected by this violence when drafting the legislation.

“Non-fatal strangulation is rarely an isolated event,” she said.

“Instead it often reveals an ongoing and escalating pattern of coercive and controlling behaviour – especially when it occurs in family violence circumstances.”

However, the Andrews government first flagged it would make strangulation a stand-alone offence four years ago in 2019.

Police Minister Lisa Neville at the time said the government recognised the need for a new offence that “accurately reflects the trauma caused to victims”.

The legislation to be introduced on Wednesday will also create a consent defence, which will be available for the offence of intentional non-fatal strangulation.

“This will provide protection for people who have engaged in genuinely consensual non-fatal strangulation during sexual activity and no intentional injury has occurred,” a state government spokeswoman said.

New South Wales and Tasmania are among the states which have already criminalised non-fatal strangulation as a stand-alone offence.