Choking, Suffocation or Strangulation – s 37 of the Crimes Act.  (SI)

The maximum penalty depends upon the level to which the act occurred. In R v MW [2007] NSWCCA 291.

McClellan CJ held that are “varying degrees of criminality in an offence contrary to s 37.” Generally where a person is rendered unconsciousness, the gravity of the offence increases. The degrees of criminality are reflected in the legislation below:

• A person who intentionally chokes, suffocates or strangles another person without the other person’s consent is liable to a maximum penalty of 5 years imprisonment. s 37 (1A)
• Where the victim becomes unconscious, insensible or incapable of resistance, and is reckless to doing so, the maximum penalty is 10 years imprisonment. s 37 (1)
• Where the victim becomes unconscious, insensible or incapable of resistance; and the offender does this with the intention of committing, or assisting another person to commit another indictable offence, the maximum penalty is 25 years imprisonment. s 37 (2)

Please note that such penalties are reserved for the most serious cases only. 

This option is recommended only where you accept that you:

• Choked, suffocated or strangled another person.
• You did this intentionally.
• You did not have consent.

s 37(1), you also accept that :

• The victim became unconscious, insensible or incapable of resistance, and you were reckless to this.

s 37(2), you also accept that:

• The victim became unconscious, insensible or incapable of resistance, and you were reckless to this.
• The act was done with the intention of committing, or assisting another person to commit another indictable offence.

A plea of guilty at the first available opportunity entitles you to a maximum sentencing discount of 25 per cent. It demonstrates to the court that you have accepted responsibility for your actions.

What possible outcomes exist if found guilty?

• Conditional release order “CRO”
  • This is usually subject to a period of good behaviour.
  • If an offence is committed during the period of the order, a court may resentence you for the offence committed.
• Community Corrections Orders (“CCO”)
  • An example of a CCO is performing service within the community.
• Intensive Corrections Order (“ICO”)
  • This is where a term of imprisonment can be served in the community.
• Full-time imprisonment
  • Served in a correctional facility.

To prove the offence, the  Prosecution must establish beyond a reasonable doubt that:

• Choked, suffocated or strangled another person.
• You did this intentionally.
• You did not have consent.

s 37(1)

• that the victim became unconscious, insensible or incapable of resistance, and that you were reckless to this.

 s 37(2)

• that the victim became unconscious, insensible or incapable of resistance, and that you were reckless to this; and that
• the act was done with the intention of committing, or assisting another person to commit another indictable offence.

If the Prosecution cannot prove the relevant elements beyond reasonable doubt, then the court must find you not guilty.

Defences

• Self-defence
  • The law allows the use of reasonable force to protect your yourself, your property or someone else against physical injury or damage.
  • You must have honestly and reasonably believed that there was a threat to your safety, and that your actions were proportionate to the threat encountered.
  • The courts will consider the nature of the threat faced and the accused’s physique, age, and sex.
• Duress
  • Another person coerced or threatened you into participating in the act, or the circumstances warranted such an action.
• Necessity
  • To stop a greater harm or injury from occurring.
• There was no intention
  • This is where you had not formed an intention to commit the act.
  • Intoxication rendered you unable to form an intention.
• Mistaken identity or lack of involvement
  • You were not involved in the act.