Attempts to Choke

The offence of choking, suffocating or strangling another person without the other person’s consent is an offence contained in Section 37 of the Crimes Act 1900 (NSW). This Section also contains separate offences for choking etc. to render someone unconscious and choking etc. to render unconscious with the intent of committing an Indictable Offence.

The maximum penalty for choking, suffocating or strangling without consent is 5 years imprisonment.

The maximum penalty for choking, suffocating or strangling that renders that person unconscious is 10 years imprisonment.

The maximum penalty for choking, suffocating or strangling with the intent to commit another indictable offence is 25 years imprisonment.

This article focuses on choking, suffocating or strangling another person without the other person’s consent under section 37(1A) of the Act.

What is Choking, Suffocating or Strangling without Consent?

A person who intentionally chokes, suffocates or strangles another person without the other person’s consent is guilty of the offence.

The terms choke, suffocate or strangle, are not defined in the Crimes Act.

In Director of Public Prosecutions (NSW) v GS [2022] NSWCCA 65, the Court found that 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’.

The ordinary meaning of ‘Suffocate’ is to “have or cause to have difficulty in breathing”.

‘Strangle’ means to “squeeze or constrict the neck”.

The Act defines a person to be consenting if the person freely and voluntarily agrees to the activity.

The following acts constitute choking, suffocating or strangling without consent:

You grab a person’s windpipe with your hand and squeeze causing them to gasp for air while they struggle to get free of your grip.
You hold a pillow over a person’s mouth in an attempt to block their airway before removing it to let them speak.
You tie a scarf around a person’s neck and pull it tight to restrict their ability to breathe without them consenting to it.

What must be proven?

For a person to be found guilty of choking, suffocating or strangling another person without the other person’s consent the prosecution must prove each of the following matters beyond a reasonable doubt:

you intentionally;
choked, suffocated or strangled another person; and
It was without the other person’s consent.

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

Which Court Will Hear the Matter?

This offence is a Table 1 offence, which means that it will be dealt with in the Local Court unless the Prosecution or accused elects to have the matter dealt with in the District Court. 

Possible Defences to Choking, Suffocating or Strangling without Consent

Duress
Necessity
Self-Defence
Consent
Self defence

Common Questions about Choking, Suffocating or Strangling without Consent

Will I receive a criminal conviction?

A conviction and criminal record for this offence is likely, in the Local Court, only 2.1% of offenders received a conditional release order without conviction.

In NSW, a court can impose any of the following penalties:

Do the Prosecution need to prove the other person was injured or lost consciousness?

None of the offences under section 37 require the victim to have suffered an injury.

If you have been charged with choking, suffocating or strangling under section 37(1) or 37(2), the Prosecution will also need to prove that you caused the other person to lose consciousness or otherwise insensible or incapable of resistance.

If I am charged with this offence and want to apply for bail, will it make my application difficult?

If the offence is considered to be a domestic violence offence, it will be captured by the show cause provisions in the Bail Act which is an additional hurdle that needs to be overcome before the Judge can apply the unacceptable risk test. For further information on this, please refer to our articles under the bail section of our website.

If you or someone you know has been charged with choking, suffocating or strangulating and you require legal advice or representation, please contact Armstrong Legal.