In New South Wales there are three possible offences for the act of choking, suffocation and strangulation.
- Choking, suffocating or strangling without consent
To satisfy that you have committed an act of choking, suffocation and strangling under Section 37(1A) of the Crimes Act 1900, the prosecution must prove you:
- Intentionally –
- Choked, suffocated or strangled another person
- Without the other person’s consent
Did you intentionally choke, suffocate or strangle another person?
Intentionally choking means to ‘intentionally pressure to the neck so as to be capable of affecting the breath or the flow of blood to or from the head’ (Director of Public Prosecutions (NSW) v GS [2022] NSWCCA 65).
Intention is also an important element of this offence. Intention is the decision to bring about an act of a particular kind or particular result. The prosecution must prove that you made the decision to choke, suffocate or strangle another person for you to be guilty of this offence.
Was there consent?
If the act was consensual, a crime has not been committed under Section 37(1A). However, if the person does not freely and voluntarily agree to the action then consent has not been given.
Will you go to gaol for choking, suffocating or strangling without consent?
If you plead guilty or are found guilty of an offence under Section 37(1A), it is possible that you may go to gaol.
The maximum penalty this offence holds is 5 years imprisonment, but this sentence will vary depending on a variety of factors including when/if you pleaded guilty, your criminal history and the facts of the case.
- Choking, suffocating or strangling that renders that person unconscious
As it is not necessary in Section 37(1A) for the victim to be rendered unconscious, there is a separate offence under Section 37(1) that deals with this element.
To satisfy that you have committed an act of choking, suffocation and strangling under Section 37(1) of the Crimes Act 1900, the prosecution must prove you:
- Intentionally –
- Choked, suffocated or strangled another person,
- So as to render them unconscious, insensible or incapable of resistance, and
- Were reckless as to rendering the other person unconscious, insensible or incapable of resistance.
Was the person rendered unconscious, insensible or incapable of resistance?
For you to have rendered them insensible or unconscious you must have made them or caused them to be devoid of consciousness (unaware) or unresponsive and incapable of feeling. You may also render them incapable of resistance, meaning if you are inflicting force upon them that they are unable to withstand, you may also be guilty of an offence under Section 37(1).
Were your actions reckless?
The fault element of recklessness must be present for all elements of this offence to be satisfied. For your action to have been reckless you must have been:
- Aware of a substantial risk that exists or would exist (when choking, suffocating or strangling); and
- Having regards to the circumstances known to you, it was unjustifiable to take the risk
Will you go to gaol for choking, suffocating or strangling that renders someone unconscious, insensible or incapable of resistance?
If you plead guilty or are found guilty of an offence under Section 37(1), it is possible that you may go to gaol.
The maximum penalty this offence holds is 10 years imprisonment, but this sentence will vary depending on a variety of factors including when/if you pleaded guilty, your criminal history and the facts of the case.
- Choking, suffocating or strangling with the intent to commit another indictable offence
The third choking, suffocating or strangling offence (Section 37(2)) in NSW involves the intention to commit another indictable offence.
To satisfy that you have committed an act of choking, suffocation and strangling under Section 37(2) of the Crimes Act 1900, the prosecution must prove you:
- Choked, suffocated or strangled another person,
- So as to render them unconscious, insensible or incapable of resistance, and
- Did so with the intention to enable yourself to commit, or assist any other person to commit, another indictable offence
Choking, suffocating or strangling and rending one unconscious, insensible or incapable of resistance are satisfied in the same way laid out in Section 37(1A) and 37(1).
Did you choke, suffocate or strangle with the intention of committing another indictable offence?
If this offence was committed with the intention of committing an indictable offence, other than the offence against this section, you may be guilty under Section 37(2). An indictable offence is one that may be prosecuted on indictment. Such offences may include murder, manslaughter, assault and burglary. Additionally, you may also be found guilty of this offence if you intended to choke, suffocate or strange someone, to assist another person to commit an indictable offence.
Will you go to gaol for choking, suffocating or strangling with the intention to commit, or assist another to commit, another indictable offence?
If you plead guilty or are found guilty of an offence under Section 37(2), it is possible that you may go to gaol.
The maximum penalty this offence holds is 25 years imprisonment, but this sentence will vary depending on a variety of factors including when/if you pleaded guilty, your criminal history and the facts of the case.
WHAT SHOULD YOU DO IF YOU HAVE BEEN CHARGED WITH A CHOKING, SUFFOCATING OR STRANGLING OFFENCE?
If you have been charged with an offence of choking, suffocating or strangling you should seek legal advice. Please reach out to a lawyer at Hugo Law Group via email at info@hugolawgroup.com.au or on (02) 5104 9604 (Canberra) or (02) 9696 1361 (Sydney).
Should you or someone you know be charged with a criminal offence such as suffocation or strangling, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney NSW (02 9696 1361), to make an appointment to speak to one of our lawyers.
Angelica Gordon
