Choke, strangle or suffocate

In the ACT, it is a criminal offence to choke, strangle, or suffocate another person. This offence is considered an act endangering a person’s health. 

The maximum penalty for this offence is 5 years’ imprisonment. If the offence is aggravated, the maximum penalty is increased to 7 years’ imprisonment. 

If the act of choking, strangling, or suffocating, results in the person being rendered insensible or unconscious, the offence is considered more serious and the maximum penalty is increased. This offence is considered an act endangering a person’s life and the maximum penalties are increased to reflect the added seriousness. 

The maximum penalty for this offence is 10 years’ imprisonment. If the offence is aggravated, the maximum penalty is increased to 13 years’ imprisonment. 

An offence is aggravated if the person who was choked was a pregnant person. 

What is choke, strangle or suffocate?

This offence is contained at sections 27 and 28 of the Crimes Act 1900 (ACT). It is a criminal offence for a person to apply pressure to any extent to another person’s neck. It is a very broad definition and can extend to include pushing someone in the neck. 

The definitions of choke, strangle and suffocate are defined in the Crimes Act. ‘Choke’ and ‘strangle’ are both defined as the application of pressure, to any extent, to the person’s neck. ‘Suffocate’ is separately defined as obstructing or interfering with, to any extent, a person’s respiratory system. 

The following acts constitute an offence of choke, strangle or suffocate: 

• Putting your hands around a person’s neck and applying pressure to restrict their breathing or movement;
• Pinning a person against a wall by their neck with your forearm; or 
• Holding a pillow, or your hand, over somebody’s mouth to stop them from yelling.

What must be proven?

For a person to be found guilty of an offence of choke, strangle or suffocate the prosecution must prove each of the following matters beyond a reasonable doubt:

• You intentionally and unlawfully;
• Applied pressure to a person’s neck; and 
• For the more serious offence: the pressure resulted in the person becoming insensible or unconscious. 

If the prosecution do not prove every single one of the above elements, you will be found not guilty. 

Which Court Will Hear the Matter?

For a choke, strangle or suffocate offence that carries a maximum penalty of 5 years’ imprisonment: 

This offence is indictable, which means that it can be dealt with in either the Magistrates Court or the Supreme Court. 

The prosecution can elect for your matter to remain in the Magistrates Court, where the maximum penalty is reduced two years’ imprisonment. If the prosecution does not elect summary jurisdiction, you can consent to the jurisdiction of the Magistrates Court which means that your matter will remain in the Magistrates Court. Alternatively, your matter will be committed to the Supreme Court and you will appear before a Judge and/or jury. 

For a choke, strangle or suffocate offence that carries a maximum penalty of 10 years’ imprisonment:

This offence is Strictly Indictable, which means that it must be finalised (either by way of a trial or sentence) in the Supreme Court. The matter will still start in the Magistrates Court and will then eventually be Committed to the Supreme Court.

Possible defences to choke, strangle, suffocate

The following defences may be available for a choke, strangle or suffocate charge:

• The person consented to the pressure, for example, during a massage;
• The act occurred during a contact sport activity, for example, a rugby tackled; 
• You were acting in self-defence; 
• You did not intend to apply any pressure to the person’s neck 

Common questions about choke, suffocate, or strangle

Will I receive a criminal conviction?

A conviction and criminal record for this offence is very likely. 

In the ACT, a court can impose any of the following penalties for a choke, strangle, or suffocate charge:

• Gaol sentence;
• Intensive Corrections Order (ICO); 
• Suspended Sentence; 
• Good Behaviour Order; 
• Fine;
• Non-conviction with Good Behaviour Order; or
• Non-conviction dismissal 

The consequences of a conviction can be serious depending on what you do for a living. Some jobs require you to have no criminal convictions and a conviction for choke, strangle, suffocate might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover, a conviction for an offence of violence can completely rule out certain career paths such as teaching, and a range of government employment options. Violent offences may also result in sentences that include imprisonment, even where an individual has no previous convictions. 

Will I go to Gaol for a choke, strangle, suffocate charge?

If you are found guilty of this offence, you may be sentenced to a term of full-time imprisonment, even if you have no prior criminal history. It depends on a range of facts, including your criminal history, the nature and circumstances of the offence, your subjective circumstances, among other things. In particular, if you are found guilty of the more serious offence of rendering a person unconscious, the risk of imprisonment is significantly increased. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.