Choking, suffocation and strangulation are serious criminal offences in New South Wales that can result in significant penalties, including lengthy prison sentences. These offences are often charged in the context of domestic violence, but the law applies to any situation where a person intentionally chokes, suffocates or strangles another person without their consent.
If you have been charged with a choking, suffocation or strangulation offence, it's crucial to understand the legal definitions, what the prosecution needs to prove, the maximum penalties, and what defences may be available. This comprehensive guide will explain the key aspects of these offences under the Crimes Act 1900 (NSW) to help you navigate the legal process and make informed decisions about your case.
Understanding the Different Types of Offences
In New South Wales, there are three main offences related to choking, suffocation and strangulation under section 37 of the Crimes Act 1900.
Intentional Choking, Suffocation or Strangulation Without Consent
Section 37(1A) outlines the basic offence of intentionally choking, suffocating or strangling another person without their consent. A person is guilty of this offence if they:
- Intentionally choke, suffocate or strangle another person
- Do so without the other person's consent
The maximum penalty for this offence is imprisonment for 5 years.
Choking, Suffocation or Strangulation Rendering Victim Unconscious
Section 37(1) covers a more serious offence where the act of choking, suffocation or strangulation renders the victim unconscious, insensible or incapable of resistance. The key elements are:
- Intentionally choking, suffocating or strangling another person
- Rendering the other person unconscious, insensible or incapable of resistance
- Being reckless as to rendering the other person in such a state
This offence carries a maximum penalty of 10 years imprisonment.
Choking, Suffocation or Strangulation with Intent to Commit Another Indictable Offence
The most serious choking offence is outlined in section 37(2). It involves choking, suffocation or strangulation with the intention of committing another serious crime. The elements are:
- Choking, suffocating or strangling another person
- Rendering them unconscious, insensible or incapable of resistance
- Doing so with the intention of enabling themselves or assisting another person to commit another indictable offence
An indictable offence is a serious crime that may be dealt with on indictment by the District or Supreme Court. Examples include sexual assault, robbery and murder.
The maximum penalty for this aggravated offence is 25 years imprisonment, reflecting the severity of using choking, suffocation or strangulation to facilitate other serious criminal acts.
What Must Be Proved by the Prosecution
In order to secure a conviction for choking, suffocation or strangulation offences under section 37 of the Crimes Act 1900 (NSW), the prosecution must prove certain key elements beyond reasonable doubt. The specific elements vary depending on which subsection of the offence is being charged.
Proving Intentional Action
For all offences under section 37, the prosecution must demonstrate that the accused acted intentionally when choking, suffocating or strangling the victim. This means showing the actions were deliberate rather than accidental or unintentional.
Evidence of intentional choking, suffocation or strangulation may include:
- Witness testimony about the accused's actions and demeanour
- Medical evidence of injuries consistent with intentional choking or strangulation
- Admissions or statements made by the accused
The prosecution does not need to prove the accused intended to cause a specific level of harm, only that they intended to perform the act of choking, suffocation or strangulation.
Establishing Lack of Consent
Another crucial element for offences under section 37(1A) is proving the choking, suffocation or strangulation occurred without the victim's consent. Consent cannot be established if the victim was:
- Unconscious or asleep
- Significantly intoxicated by drugs or alcohol
- Intimidated, coerced or threatened
- Underage or in a position of vulnerability relative to the accused
The onus is on the prosecution to present evidence, such as victim testimony, to show consent was not freely and voluntarily given. Even if no physical resistance occurred, lack of consent can be established through evidence of fear, shock or verbal non-consent.
Demonstrating Recklessness or Intent (for more serious charges)
For charges under section 37(1), the prosecution must additionally prove the accused was reckless as to render the victim unconscious, insensible or incapable of resistance. This means they consciously disregarded the substantial risk of that outcome occurring.
Evidence of the force used, duration of the choking/strangulation, and the accused's conduct afterwards may help establish this reckless mental state.
For the most serious offence under section 37(2), the prosecution needs to prove the accused intended to choke/strangle the victim to enable themselves or another person to commit a separate indictable offence. Proving this ulterior intent often relies on circumstantial evidence showing the choking/strangulation facilitated another crime.
Ultimately, the strength of a choking/strangulation case depends on the specific evidence available to prove each element to the high criminal standard. Engaging experienced legal representation is vital for anyone facing or prosecuting these serious charges.
Penalties for Choking, Suffocation and Strangulation Offences
The penalties for choking, suffocation and strangulation offences in New South Wales vary depending on the specific circumstances of the offence. The Crimes Act 1900 (NSW) outlines three different offences with escalating maximum penalties.
Maximum Sentences
Under section 37(1A), intentionally choking, suffocating or strangling another person without their consent carries a maximum penalty of 5 years imprisonment.
The penalty increases to a maximum of 10 years imprisonment under section 37(1) if the offence renders the victim unconscious, insensible or incapable of resistance, and the offender is reckless as to this occurring.
The most serious offence, under section 37(2), involves intentionally choking, suffocating or strangling another person to enable the commission of another indictable offence. This carries a maximum penalty of 25 years imprisonment.
Factors Affecting Sentencing
When determining an appropriate sentence for choking, suffocation or strangulation offences, the court will consider various aggravating and mitigating factors. These may include:
- The offender's criminal history
- The severity of the assault and injuries caused
- Whether the offence occurred in a domestic violence context
- The offender's plea and any remorse shown
- The impact on the victim
Choking, suffocation and strangulation are often charged in domestic violence situations. The courts recognise the serious risks associated with this type of offending and may impose harsher penalties to reflect the gravity of domestic abuse.
Seeking experienced legal representation is crucial for anyone facing choking charges, as the specific circumstances of the case can significantly impact the potential sentence. A skilled criminal lawyer can present mitigating factors and argue for leniency where appropriate.
Defences to Choking, Suffocation and Strangulation Charges
When facing charges of choking, suffocation or strangulation in New South Wales, there are several legal defences that may be applicable depending on the specific circumstances of the case. Understanding these defences is crucial for anyone accused of these offences.
Self-Defence
Self-defence can be argued if the accused used force to protect themselves or another person from the threat of unlawful violence. For this defence to succeed, the force used must have been reasonable and proportionate to the perceived threat.
For example, if the accused choked the complainant to stop them from physically attacking with a weapon, this may potentially be justified as self-defence. However, the force used cannot be excessive.
Duress
Duress may be a defence if the accused was forced or coerced by threats to commit the offence against their will. The threats must have been so serious that a person of ordinary firmness and strength of will could not have resisted them in the circumstances.
To illustrate, consider a situation where the accused was threatened with serious harm to their family unless they choked the complainant. If the threats were so grave that the accused genuinely believed they had no choice, duress may be argued.
Necessity
The defence of necessity is closely related to duress but involves circumstances of emergency rather than human threats. It may apply where the accused believed on reasonable grounds that choking, suffocating or strangling the complainant was necessary to avoid irreparable evil to themselves or another.
For instance, necessity might be argued if the accused strangled the complainant to stop them from detonating an explosive device that would have harmed many people. The court would consider whether the accused's actions were a reasonable response to the emergency situation.
It's important to note that raising any of these defences does not shift the burden of proof. The prosecution must still prove the offence beyond a reasonable doubt. However, the accused must first point to some evidence suggesting the defence applies. If that threshold is met, the prosecution must then disprove the defence beyond reasonable doubt.
These defences to choking, suffocation and strangulation charges are highly complex and fact-dependent. Anyone facing such serious allegations should seek expert legal advice to explore whether they may have a viable defence based on their individual circumstances.
Your Options When Facing Charges
If you are charged with a choking, suffocation or strangulation offence in New South Wales, it's crucial to understand your options and take immediate action to protect your rights. Seeking experienced legal representation should be your top priority.
Seeking Legal Representation
Engaging a skilled criminal defence lawyer is essential when facing choking, suffocation or strangulation charges. An experienced lawyer can:
- Explain the charges against you and the potential penalties
- Assess the strength of the prosecution's case
- Identify possible defences
- Advise you on whether to plead guilty or not guilty
- Represent you in court proceedings and advocate on your behalf
Your lawyer can guide you through the complex legal process, ensure your rights are protected, and work towards achieving the best possible outcome for your case.
Pleading Guilty vs. Not Guilty
One of the most important decisions you'll need to make when facing charges is whether to plead guilty or not guilty. This decision should be made in consultation with your lawyer, who can advise you on the strengths and weaknesses of the prosecution's case and the likely outcomes of each option.
If you choose to plead guilty, your lawyer can:
- Negotiate with prosecutors for reduced charges or a more lenient sentence
- Prepare a compelling plea in mitigation to present to the court, highlighting factors that may justify a lighter sentence
If you plead not guilty, your case will proceed to trial. Your lawyer will build a defence strategy, challenge the prosecution's evidence, and argue your case before a judge or jury.
Negotiating with Prosecutors
In some cases, your lawyer may be able to negotiate with prosecutors to have the charges reduced or dropped altogether. This is known as charge negotiation or plea bargaining.
Factors that may influence the success of negotiations include:
- The strength of the evidence against you
- Your prior criminal history (if any)
- The willingness of the alleged victim to testify
- Any mitigating circumstances surrounding the offence
Your lawyer can assess whether negotiation is a viable option in your case and advise you on the potential benefits and risks of this approach.
Conclusion
Choking, suffocation and strangulation offences are serious crimes in New South Wales that can result in significant legal consequences. Understanding the different types of offences, the elements that must be proven by the prosecution, and the potential penalties is crucial for anyone facing these charges.
It's important to remember that intentionally choking, suffocating or strangling another person without their consent is a crime, even if no serious injury occurs. More severe penalties apply when the victim is rendered unconscious, insensible or incapable of resistance, or when the act is done with the intention of committing another indictable offence.
If you are charged with a choking, suffocation or strangulation offence, seeking immediate legal advice from an experienced criminal defence lawyer is essential. They can help you understand your rights, explore potential defences, and guide you through the complex legal process. With the right legal support, you can work towards achieving the best possible outcome in your case.
.png)
.png)