If you have been charged with choking, suffocating or strangulation under section 37(1) of the Crimes Act, the prosecutor must prove that you:
Note:
There are two other offences relating to choking, suffocating or strangulation. One is more serious; one is less serious.
If police allege that you intentionally choked, suffocated or strangled the complainant without their consent, police may charge you with an offence under section 37(1A) of the Crimes Act. This offence is less serious because the prosecutor does not need to prove that your actions caused the complainant to become unconscious, insensible or incapable of resistance. It has a maximum penalty of 5 years imprisonment.
Alternatively, if police allege that you choked, suffocated or strangled the complainant with the intention of committing another serious offence, police may charge you with a more serious offense under section 37(2) of the Crimes Act. This offence has a maximum penalty of 25 years imprisonment.
This page only relates to an offence under section 37(1) of the Crimes Act.
What is choking, suffocation and strangulation?
These acts cover an conduct which stops another person from breathing. This can be done by your physical body (i.e. tightly wrapping your hands around someone’s throat) or using an object (i.e. tightening a rope around someone’s throat or covering someone’s head with a plastic bag).
This offence does not include choking, suffocation or strangulation which happens during a lawful activity to which both parties consent, such as wrestling or judo.
How does the court determine whether I intended to choke, suffocate or strangle the complainant?
This is a question for the magistrate or jury, who would consider all of the surrounding circumstances including what you did and said.
What does it mean to be unconscious, insensible or incapable of resistance?
Someone will be unconscious, insensible or incapable of resistance if they are unresponsive or have been overpowered such that they cannot resist the choking, suffocation or strangulation.
What does reckless mean?
In this context, being reckless means that you realised that the complainant may become unconscious, insensible or incapable of resistance by your actions, but continued regardless.
This will depend on a number of factors including, for example:
You may accept that you are guilty of choking, suffocating or strangling the complainant, but disagree with part of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the police facts.
The court will take into account the nature and seriousness of the assault and the surrounding circumstances.
The court will also take into account many other factors including your personal circumstances and criminal history.
If I plead guilty or am found guilty, will a conviction be recorded?
It is possible that the court may record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
It is important that a lawyer properly prepares and presents your case to minimise the risk of a conviction being recorded.
What does it mean to have a conviction recorded?
A conviction is an entry on your criminal record (also referred to as your antecedents). A conviction may pose a hurdle, or a bar, to current or future employment, travel, adoption, residency, applications for citizenship or your ability to attain or hold a certain licence.
Will I go to gaol for choking, suffocating or strangulation?
Although there are many sentencing alternatives, it is possible that you will go to gaol if you plead guilty or are found guilty.
The maximum penalty is 10 years imprisonment, however the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
If you have been charged with kidnapping, the prosecutor must prove that you:
If you have been charged with one of the more serious kidnapping offences, the prosecutor may also need to prove that you:
What is taking or detaining?
Somebody is taken if they accompany you, or if you have caused them to accompany someone else (i.e. pulling or pushing somebody into a vehicle).
A person is detained if you cause them to stay in a certain place and/or refuse to release them (i.e. locking somebody in a room).
What does consent mean?
Consent involves a conscious and voluntary agreement by the complainant to accompany you, or to stay in a certain place. Consent is not given if the complainant only agrees because of force or threats.
A child (in this context a person under 16 years of age) cannot consent to being taken or detained unless:
What does reckless mean?
In this context, being reckless means that you realised the complainant may not have consented to being taken or detained, but continued regardless.
What is an advantage?
An advantage does not need to be financial. It could include psychological or sexual gratification. The advantage does not need to have been achieved, but it must be proved that you had the intention of achieving an advantage by taking or detaining the complainant.
Whether you took or detained the complainant with the intention of obtaining an advantage is a question for the jury, who would consider all of the surrounding circumstances, including what you did and said.
What is a ransom?
A ransom is a demand to obtain a sum of money for the complainant’s release. It does not matter whether you in fact demanded money, or whether you were successful in obtaining any money. It only has to be proved that you intended to demand a ransom.
Whether you took or detained the complainant with the intention to hold the complainant to ransom is a question for the jury, who would consider all of the surrounding circumstances, including what you did and said.
What is a serious indictable offence?
A serious indictable offence is any offence which carries a maximum penalty of at least 5 years imprisonment. Common examples of serious indictable offences include intimidation and assault occasioning actual bodily harm.
What does ‘in company’ mean?
You will be ‘in company’ if other person(s) were present when you committed the offence, and those person(s) were either:
The prosecutor must also prove that there was an express or implied agreement between you and the other person(s) to take or detain the complainant.
What does actual bodily harm mean?
There must be some injury to the complainant. Actual bodily harm (ABH) includes things like bruises, scratches, or marks. The injury does not need to be permanent, but it must be more than transient.
The actual bodily harm must have been caused either at the time of, immediately before or immediately after the complainant was taken or detained.
This will depend on a number of factors including, for example:
If you have been charged with one of the more serious kidnapping offences, then you may agree that you took or detained the complainant, but say that you were not in company, or did not cause actual bodily harm to them (in which case you might still be guilty of kidnapping).
You may accept that you are committed the offence you have been charged with, but disagree with part of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the police facts.
The court will take into account things such as the period of detention, the circumstances of the detention/taking, the characteristics of the person who was detained/taken and the purpose of the detention/taking.
The court will also take into account many other factors including your personal circumstances and criminal history.
If I plead guilty or am found guilty, will a conviction be recorded?
It is very likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
What does it mean to have a conviction recorded?
A conviction is an entry on your criminal record (also referred to as your antecedents). A conviction may pose a hurdle, or a bar, to current or future employment, travel, adoption, residency, applications for citizenship or your ability to attain or hold a certain licence.
Will I go to gaol for kidnapping?
Although there are many sentencing alternatives, it is very likely that you will go to gaol if you plead guilty or are found guilty.
The maximum penalty for kidnapping is 14 years imprisonment. The maximum penalties for aggravated and specially aggravated kidnapping are higher.
The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors. It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to gaol, or to persuade the court to reduce the length of the gaol sentence.
Could I be guilty of kidnapping a child if I am a relative or family friend?
This will depend if you had the child’s parents’ permission to take or detail the child and whether you intended to hold the child for an advantage, for ransom or to commit a serious indictable offence.
Could I be guilty of kidnapping if I did not actually obtain a ransom?
Yes. What is relevant is whether you intended to detain the complainant in order to demand and obtain a sum of money for the complainant’s release. It does not matter whether you in fact demanded money, or whether you succeeded in obtaining any money.
If you have been charged with child abduction, the prosecutor must prove that you:
What is taking or detaining?
Somebody is taken if they accompany you, or if you have caused them to accompany someone else (i.e. pulling or pushing somebody into a vehicle).
A person is detained if you cause them to stay in a certain place and/or refuse to release them (i.e. locking somebody in a room).
Who is a child?
In this context a child is a person under 12 years of age.
Who has lawful control of a child?
This includes person(s) who are legally responsible for the child at the time they were taken/detained such as parents, legal guardians, carers or school teachers.
This will depend on a number of factors including, for example:
You may accept that you abducted the child, but disagree with part of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the police facts.
The court will take into account things such as the period of detention and the circumstances of the detention/taking.
The court will also take into account many other factors including your personal circumstances and criminal history.
If I plead guilty or am found guilty, will a conviction be recorded?
It is very likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
What does it mean to have a conviction recorded?
A conviction is an entry on your criminal record (also referred to as your antecedents). A conviction may pose a hurdle, or a bar, to current or future employment, travel, adoption, residency, applications for citizenship or your ability to attain or hold a certain licence.
Will I go to gaol for child abduction?
Although there are many sentencing alternatives, it is very likely that you will go to gaol if you plead guilty or are found guilty.
The maximum penalty for child abduction is 10 years imprisonment. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to gaol, or to persuade the court to reduce the length of the gaol sentence.
Could I be guilty of child abduction if I am a relative or family friend of the child?
This will depend if you had the permission of the child’s parents to take or detain the child and whether you intended to remove or keep the child from the person(s) with lawful control over them.
If you have been charged with female genital mutilation, the prosecutor must prove that you excised, infibulated or otherwise mutilated the labia majora, labia minora or clitoris of a person.
A person cannot consent to female genital mutilation, however if the acts are carried out by a surgical operation that is necessary for the health of the person and is performed by a medical practitioner, no offence is committed.
What could amount to excising, infibulating and mutilating?
Any act which involves the injuring or removal of female genitals. This could involve the injuring or removal of the entire genital or simply a part of it.
What is the labia majora, labia minora and clitoris?
These are three of the external female genital organs and are the most visible parts of the vagina.
What are the possible defences?
This will depend on a number of factors including, for example:
You may accept that you are committed the offence you have been charged with, but disagree with part of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the police facts.
The court will take into account things such as the degree of physical injury caused, any ongoing physical or psychological injury, the age of the complainant and the relationship between you and the complainant.
The court will also take into account many other factors including your personal circumstances and criminal history.
If I plead guilty or am found guilty, will a conviction be recorded?
It is very likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
What does it mean to have a conviction recorded?
A conviction is an entry on your criminal record (also referred to as your antecedents). A conviction may pose a hurdle, or a bar, to current or future employment, travel, adoption, residency, applications for citizenship or your ability to attain or hold a certain licence.
Will I go to gaol for female genital mutilation?
Although there are many sentencing alternatives, it is very possible that you will go to gaol if you plead guilty or are found guilty.
The maximum penalty for female genital mutilation is 21 years imprisonment. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to gaol, or to persuade the court to reduce the length of the gaol sentence.
Could I be guilty of female genital mutilation if the complainant agreed or consented?
Yes. It is not a defence to female genital mutilation that the person consented to the acts.
Further advice:
This blog is intended to provide general information about matters that often come before the court and is not legal advice. For legal advice about this offence or any other criminal offence, please reach out to us and speak to one of our lawyers on (02) 9696 1361 (Sydney) or (02) 5104 9640 (Canberra) or by email at info@hugolawgroup.com.au
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