Attempts to Choke

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What is Attempts to Choke ?

As High Profile Lawyers we know that the offence of attempt to choke may be committed in various ways.

The offence is committed by any mere attempt to choke if coupled with any of the intentions required by the law. The acts of attempting to suffocate and strangle any person are also included in the offence of attempts to choke. Thus, attempting to choke, suffocate or strangle any person is one way of committing the offence.

Case law/Jurisdiction

This matter is strictly indictable which means that it can only be finalised in the District Court.

The nature and elements of the offence of Attempts to Choke were considered in In R v MW [2007] NSWCCA 291. Here it was recognised that there are “varying degrees of criminality in an offence contrary to s 37.” McClellan CJ at CL added at [43]:

“It must be remembered that the offence itself is defined as an “attempt to choke.” When that attempt results in the victim becoming unconscious the offence is one of considerable gravity”.  

Similarly, in R v HQ [2003] NSWCCA 336, it was held that choking the victim to the point where she lapsed into semi-consciousness constituted a serious form of the offence: at [42].

The Law

The law that is applicable in the offence of attempts to choke is the Crimes Act 1900(NSW). It is categorized as an offence against the persons and particularly defined and punished under Section 37 which states;.

(1) A person is guilty of an offence if the person:

(a) intentionally chokes, suffocates or strangles another person so as to render the other person unconscious, insensible or incapable of resistance, and

(b) is reckless as to rendering the other person unconscious, insensible or incapable of resistance.

Maximum penalty: imprisonment for 10 years.

(2) A person is guilty of an offence if the person:

(a) chokes, suffocates or strangles another person so as to render the other person unconscious, insensible or incapable of resistance, and

(b) does so with the intention of enabling himself or herself to commit, or assisting any other person to commit, another indictable offence.

(3) In this section:

“another indictable offence” means an indictable offence other than an offence against this section.

What must the prosecution prove?

Since Attempts to Choke offence is a criminal offence, the burden of proof lies on the Prosecution.

The prosecution must prove each of the elements in the charge beyond reasonable doubt.

That is a high standard of proof that the prosecution must achieve before someone can be convicted of Attempts to Choke.

As  the best criminal lawyers in Sydney we know that to establish Attempts to Choke, the prosecution must prove each of the following matters beyond reasonable doubt;

  • You, with the intention of enabling yourself or some other person to commit an indictable offence or assisting any person to commit an indictable offence.

Either:

  • (a) attempted to choke, strangle or suffocate any person.
  • (b)
  • (i) By any means calculated to choke, suffocate or strangle.
  • (ii) Attempted to render any person insensible, unconscious or incapable of resistance.
  • They will also need to prove that you were the person who committed the attempts to choke offence.

If you are charged with the offence of Attempts to Choke what are your options?

National Criminal Lawyers are the best Assault Lawyers in Sydney. We have been successful in defending a number of Attempts to Choke charges where the prosecution could not establish each of the elements of Attempts to Choke.

NCL offer the following options for those who have been charged with Attempts to Choke;

  1. We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended;
  2. NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
  3. Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
  4. Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.

Pleading Guilty

If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.

Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.

Our Lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work to get you the best result.

Maximum Penalties

The maximum penalty for the charge of attempts to choke (Section 37 of the Crimes Act) is twenty-five years imprisonment.

Please note these penalties are reserved for the worst kind of offending and are unlikely to be what you would receive.

Pleading Not Guilty

If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.

A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.

National Criminal Lawyers employ only the best criminal lawyers and we have defended numerous people charged with Attempts to Choke and are experts at these hearings.

Defences

Some of the possible defences available for those charged with Attempts to Choke can include;

  • If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue “Duress”;
  • If your actions were necessary to prevent a greater harm from occurring, you may have the defence of “Necessity”; Or
  • If you were defending yourself or another OR yours or another’s property you may have a Defence of  Self-Defence.

Statistics

The Courts are not bound by statistics however there must be reasonable consistency in sentences. A Magistrate or Judge should have regard to what has been done in other cases. In Green [2011] HCA 45, the plurity judgement of French CJ, Kiefel and Creennan JJ stated:

“Equal Justice” embodies the norm expressed in the terms “equality before the law”. It is an aspect of the rule of law.

For Attempts to Choke offenders 46% of persons who plead or were found guilty received full time imprisonment whereas 21% received a suspended sentence.

Possible Penalty's

In NSW, a court can impose any of the following penalties for a Attempts to Choke charge.

  • Prison sentence;
  • Home Detention;
  • Intensive correction order (previously periodic detention);
  • Suspended sentence;
  • Community service order (CSO);
  • Good behaviour bond;
  • Fine; and/or
  • Section 10.

However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:

  • Full time Imprisonment;
  • New ICO (ICO) with a home detention condition available;
  • New Community Correction Order (CCO);
  • Fine and/or
  • New Conditional release Order (CRO)

Case Studies

Our client was charged with attempts to choke following an altercation with his girlfriend. We represented our client in his hearing where we successfully raised doubt in the prosecution’s case. We argued that the girlfriend did not report the allegations without delay and took four days to see a medical doctor who could not find any marks where his girlfriend had said he had used an electrical cord to choke her. As there was doubt about whether our client had attempted or choked and due to the lack of medical evidence he was acquitted of his charges.

In a second case our client was involved in an argument with her flatmate over a blocked toilet. The flatmate started punching her, and in self-defence, our client put her hands around d her flatmates neck and hit the flatmate with her fist. During the altercation there was one other witness who attempted to separate the parties. The Magistrate heard from all sides before determining that our client had indeed acted in self-defence against the flatmate and therefore was not guilty of the choke and other assault charges. The charge was thus dismissed against her.

Why National Criminal Lawyers?

There are three reasons to choose National Criminal Lawyers:

1. We get the results

We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.

2. We give a Senior Defence Lawyer guarantee

No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.

3. National Criminal Lawyers are the best defenders of your rights

At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.

If you have been charged with any Attempts to Choke offence our Team at National Criminal Lawyers are well versed and specialists in having charges either withdrawn and otherwise achieving favourable outcomes.

Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.

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