Choking, Suffocation and Strangulation


In NSW, its is an offence to intentionally choke, suffocate or strangle another person without their consent. This offence is more serious if the victim is rendered unconscious, insensible or incapable of resistance. This offence carries a maximum penalty of 5 to 25 years imprisonment, depending on the particular type of offence involved.

In NSW, a court can impose any of the following penalties for this charge.

The Offence of Choking, Suffocation Or Strangulation:

The offence of choking, suffocation and strangulation is contained in section 37 of the Crimes Act 1900 which states:

(1A) A person is guilty of an offence if the person intentionally chokes, suffocates or strangles another person without the other person’s consent.

Maximum penalty: imprisonment for 5 years.

  • A person is guilty of an offence if the person:
    • intentionally chokes, suffocates or strangles another person so as to render the other person unconscious, insensible or incapable of resistance, and
    • is reckless as to rendering the other person unconscious, insensible or incapable of resistance.

Maximum penalty: imprisonment for 10 years.

  • A person is guilty of an offence if the person:
    • chokes, suffocates or strangles another person so as to render the other person unconscious, insensible or incapable of resistance, and
    • does so with the intention of enabling himself or herself to commit, or assisting any other person to commit, another indictable offence.

Maximum penalty: imprisonment for 25 years.

  • A person is guilty of an offence if the person:
    • chokes, suffocates or strangles another person so as to render the other person unconscious, insensible or incapable of resistance, and
    • does so with the intention of enabling himself or herself to commit, or assisting any other person to commit, another indictable offence.

Maximum penalty: imprisonment for 25 years.

  • In this section:
    • “another indictable offence” means an indictable offence other than an offence against this section.

What Actions Might Constitute an Offence of Choking, Suffocation Or Strangulation?

  • Holding a pillow, or hand over somebodys mouth to stop them from yelling;
  • Pinning a person by the neck with your forearm;
  • Choking someone;
  • Using a choke hold on someone during a fight.

What the Police Must Prove:

To convict you of choking, suffocation and strangulation, the prosecution must prove each of the following matters beyond a reasonable doubt:

For section 37(1),

  • That you, without consent:
    • Intentionally choked, suffocated or strangled another person; and

For section 37(2):

  • That you, without consent:
    • Intentionally choked, suffocated or strangled another person
    • Recklessly rendered that person unconscious, insensible or incapable of resistance.

For section 37(3):

  • That you, without consent:
    • Intentionally choked, suffocated or strangled another person and
    • Recklessly rendered that person unconscious, insensible or incapable of resistance and
    • Did so with the intention of enabling himself or herself to commit, or to assist any other person to commit and indictable offence.

Possible Defences for Choking, Suffocation Or Strangulation:

Possible defences to failing to keep a choking, suffocation and strangulation include but are not limited to:

Which Court Will Hear Your Matter?

Section 37(1) is a Table 1 offence and is to be dealt with by the Local Court, unless you or the prosecution elect for the matter to be heard in the District Court on indictment. The summary disposal of these offences in the Local Court carries a maximum penalty of two years imprisonment.

Section 37(2) and 37(3) are strictly indictable and can only be finalised in the District or Supreme Court.

Types of penalties:

Jail: This is the most serious penalty and involves full time detention in a correctional facility. Read more.

Home Detention: As a result of amended legislation this penalty was repealed on 24 September 2018 as a standalone order but may be imposed as a condition of an Intensive Corrections Order (ICO). Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring. Read more.

Intensive Corrections Order (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.

Suspended Sentence: As a result of amended legislation this penalty was repealed on 24 September 2018. This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.

Community Service Order (CSO): As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.

Good Behaviour Bond: As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.

Community Corrections Orders (CCO): A CCO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the Community Corrections Orders (CCO). Additional conditions may be imposed at the discretion of the court, both at the time of sentence and subsequently upon application by a community corrections officer, juvenile justice officer or the offender. Read more.

Fines: When deciding the amount of a fine the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Section 10A: A section 10A is a conviction, with no other penalty attached to it. Read more.

Conditional Release Order (CRO): A CRO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the CRO. Read more.

Section 10 avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.

 

 

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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