Charged with choking, suffocation or strangulation?
Section 37 of the Crimes Act 1900 (NSW) creates several offences involving choking, suffocating or strangling another person. ED Legal provides advice and court representation for these serious charges across Sydney and NSW.
The exact subsection matters. Police may allege non-consensual choking, choking that rendered a person unconscious, insensible or incapable of resistance, or choking carried out to facilitate another indictable offence.
Request a free initial consultation
How we can help you
We can review statements, photographs, medical records, body-worn video, messages and other evidence and compare that material with your account. We will identify the precise section 37 offence alleged and the elements the prosecution must prove.
We can advise before a police interview, prepare a defended case, make representations where appropriate and deal with related domestic violence, AVO and bail issues.
Before a police interview or court date
If police are investigating a choking or strangulation allegation, obtain legal advice before deciding whether to participate in an interview. These charges can be serious even where there is limited visible injury.
Preserve relevant messages, photographs, medical material and recordings. Keep your Court Attendance Notice, bail papers and any AVO, and do not contact a complainant contrary to an order or condition.
Understanding section 37
Section 37 contains three distinct offences with different elements and maximum penalties. The prosecution case must be assessed against the exact subsection on the charge rather than treating every allegation of choking or strangulation in the same way.
Intentional choking without consent
Section 37(1A) applies where a person intentionally chokes, suffocates or strangles another person without that person's consent. The maximum penalty is 5 years imprisonment.
Rendering a person unconscious or incapable of resistance
Section 37(1) applies where the accused intentionally chokes, suffocates or strangles another person so as to render them unconscious, insensible or incapable of resistance, while reckless as to causing that state. The maximum penalty is 10 years imprisonment.
Choking to facilitate another indictable offence
Section 37(2) applies where choking, suffocation or strangulation renders a person unconscious, insensible or incapable of resistance and is done with the intention of enabling the accused, or assisting another person, to commit another indictable offence. The maximum penalty is 25 years imprisonment.
Defending a choking or strangulation charge
A defence may involve disputing the alleged act, identity, consent where legally relevant, whether the alleged conduct caused the state required by the subsection, or the prosecution case on intention or recklessness.
Self-defence may also arise in an appropriate case. The sequence of events, the threat perceived and whether the response was reasonable require careful assessment.
Medical evidence should be read together with the rest of the prosecution case. The presence or absence of visible injury does not by itself decide whether the offence is proved.
Where the allegation arises in a domestic relationship, the criminal charge and any ADVO or bail condition must be considered separately and together.
Deciding how to respond at court
Get advice before entering a plea. If the charge is disputed, we can prepare the case for hearing or trial and consider whether representations should be made about the charge or facts.
If you intend to plead guilty, we can review the factual basis and prepare relevant material addressing the circumstances of the offence and your personal position.
Bail and AVO conditions
Choking and strangulation allegations can lead to arrest, bail conditions and an ADVO. Conditions affecting contact, residence or family arrangements must be followed unless changed by a court.
Tell us immediately if you or a family member is in custody or if restrictive conditions require urgent advice.
Sentencing and seriousness
Sentencing depends on the subsection, duration and circumstances of the conduct, any injury, whether another offence was facilitated, prior history and personal circumstances. The statutory maximums range from 5 years to 25 years imprisonment depending on the offence charged.
Preparing to speak with a lawyer
Tell us the exact wording or subsection of the charge, the court and next date, and whether there is an AVO or bail condition. Have any Court Attendance Notice, police facts, medical material and relevant messages available where possible.
For advice about a choking, suffocation or strangulation charge, contact ED Legal for a free initial consultation. You can also review our Domestic Violence and Assault pages.
Sources
Disclaimer: This information is general in nature and is not legal advice. It is intended as a guide only. You should obtain formal legal advice about your specific circumstances.
