Strangulation law: Eight factors that will count towards a stiffer jail sentence for domestic abusers

A stand-alone law against strangulation was introduced in 2018 after a review of the domestic violence legislation. Photo / Getty Images

A man who choked his ex-partner on a bed until she nearly passed out has complained that his sentence of two years and three months in prison is unfair.

Daniel Wayne Shramka grabbed his victim by the neck with one hand, squeezing tightly, for almost 30 seconds before she was able to break free by kicking out at him.

When she tried to roll away, he punched her hard in the back of her head.

When she reached for her phone on the floor to call 111, he punched her in the face.

Shramka's case has now become the first under a new law against strangulation to be taken to the Court of Appeal.

He argued that his sentence of 27 months in jail was "manifestly excessive", even though his victim was left with scratches and red marks to her neck, a swollen eye, lacerations on her cheek and bruising to the back of the head.

Three appeal court judges disagreed, finding the case contained four out of eight on a list of aggravating factors and setting benchmarks for how the courts are likely to deal with strangulation cases in future.

"(The woman) continues to be scared, struggles to sleep, needs to have a light on during the night, and remains in a state of constant nervous anxiety," the Court of Appeal judgment said.

Shramka attacked his former partner in June 2019 - just six months after the new law against strangulation and impairing breathing came into effect in December 2018. It carries a maximum penalty of seven years in jail.

He's one of 1300 people convicted under the law in its first three years on the statute books.

When the law was enacted, MPs acknowledged that strangulation was a common marker of abusive and coercive relationships, and a precursor to more serious offending, including homicide.

Noting that the case was the first time the Court of Appeal had considered the new law, the three appeal judges not only disagreed that Shramka's sentence was excessive, but published guidelines for sentencing judges in future.

These included a list of eight aggravating factors to be taken into account:

• Premeditation,

• A history of strangulation or very serious domestic violence,

• Vulnerability of the victim,

• Home invasion or breach of a protection order,

• Aggravated violence, or repeated or extended strangulation, in particular where the victim loses consciousness,

• Threatening to kill,

• Enduring harm – physical or psychological,

• Harm to "associated persons", particularly in the presence of children.

The appeal judges also set three bands of seriousness for strangulation, with suggested starting points for the jail terms in each.

These were a highest level, with five and a half to six years as a starting point; a moderate band, attracting three to four years; and a lower level with a two-year starting point and the possibility of home detention.

For the highest level, the court suggested an example in which six of the eight aggravating factors were present.

It said that Shramka's case fell into the band of moderate seriousness, involving four of the eight aggravating factors: his victim's vulnerability, a breach of protection order, aggravated violence, and enduring psychological harm to the victim.

The appeal judges applied a starting point of four years in prison for Shramka, with a 30 per cent discount for his "dysfunctional" upbringing and efforts at rehabilitation, and a further six months off for 19 months he had spent on restricted, electronically-monitored bail.

The introduction of the strangulation law in 2018 followed a Law Commission report that found that 71 per cent of homicide victims in a domestic violence setting had been strangled previously in the relationship, and that victims of strangulation were more likely to be killed by their partners later.

"Victims of family violence who have been strangled have seven times the risk of going on to be killed than those who have suffered other forms of violence but not strangulation," the Law Commission report said.

"People who make decisions about the victim or the perpetrator (particularly judges) need to understand that risk so that they make decisions that will help to keep the victim safe."

In the 2021 calendar year, 1023 people were charged with strangulation and 492 were convicted of it.

Of those, 187 were sentenced to imprisonment, 130 to home detention, and the rest to lesser community-based sentences such as community detention, intensive supervision and community work.

Family harm - do you need help?

If you're in danger now phone the police on 111 or ask neighbours or friends to ring for you.

Where to go for help or more information:

• Shine, free national helpline available 24/7 - 0508 744 633 www.2shine.org.nz
• Women's Refuge: Free national crisis line operates 24/7 - 0800 refuge or 0800 733 843 www.womensrefuge.org.nz
• Shakti: Providing specialist cultural services for African, Asian and middle eastern women and their children. Crisis line 24/7 0800 742 584
• It's Not Ok: Information line 0800 456 450 www.areyouok.org.nz