Section 37 provides for three separate choking offences.
A person is guilty of an offence if the person intentionally chokes, suffocates or strangles another person without the other person’s consent.
The definition of ‘Choke’ is as follows:
- “Severe difficulty in breathing because of constricted or obstructed throat or a lack of air”
The definition of ‘Suffocate’ is as follows
- To “have or cause difficulty breathing”
The definition of ‘Strangle’ is as follows
- To “squeeze or constrict the neck”
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.
A person is guilty of an offence if the person 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.
An ‘indictable offence’ under Section 3 of Criminal Procedure Act 1986, is an offence that may be prosecuted on indictment (in the higher courts, i.e., District or Supreme Court). They include broad range of offences such as robbery, murder and serious sexual offences.
|Offence- Crimes Act 1900||Maximum Penalty|
|Intentionally choke, suffocate or strangle without consent- s37 (1A)||5 years imprisonment|
|Intentionally choke, suffocate or strangle so as to render them unconscious, insensible or incapable and is reckless as to rendering the other person unconscious, insensible or incapable of resistance- 37 (1)||10 years imprisonment|
|Choke, suffocate or strangle so as to render them unconscious, insensible or incapable of resistance and do so with intention of enabling himself/herself to commit another indictable offence-37 (2)||25 years imprisonment|
Your Options in Court
Pleading Not Guilty
For the to be established, the prosecution must prove two things beyond a reasonable doubt:
Defences to this charge
Self-defence– where you used unlawful violence to protect yourself, your property or another person.
Duress- Where you were threatened or coerced into using the unlawful violence.
Necessity- Where you used unlawful violence to prevent serious injury or danger.
Where such defence is raised, the onus shifts to the prosecution to negative the defence beyond reasonable doubt.
If the prosecution is unable to ‘negate’ the defence, then you will be found not guilty.
It is important that you speak to an experienced criminal defence lawyer who will be able to advise you of your options.
If you decide or have been advised to plead guilty to choking, suffocating or strangulation after receiving legal advice from an experienced criminal defence lawyer, it is crucial that your case is sufficiently prepared to maximise your chances at obtaining a lenient sentence.
Utilitarian Value or 25% discount on punishment
The discount for the utilitarian value of the plea of guilty will be determined largely by the timing of your plea entered. That means, the earlier you enter a plea of guilty, the greater discount you receive on your punishment and also the type of sentence you receive.
The utilitarian value of a delayed plea is less and consequently the discount is reduced.
Types of Penalties
Types of penalties the Judge can impose on you include any one of the following:
- Conditional Release Order
Our expert defence team at Criminal Lawyers Sydney may be able to negotiate the police ‘facts’ to reduce the seriousness of the offence.
Our team will guide you on obtaining materials which can be handed-up to the court during your sentencing – including a letter of apology, character references, and any documents from counsellors or health care professionals you have consulted.
These materials, together with persuasive verbal submissions by your lawyer in the courtroom, can help to ensure you receive the most lenient penalty that is possible in the circumstances.
If you have been charged with assault, call Criminal Lawyers Sydney anytime on (02) 91528619 to arrange a free first conference with one of our experienced assault lawyers who will review the allegations and advise you of your options and the best way forward.