Attempts to Choke | Strangulation

The Law

This offence is categorised as an offence against the persons, particularly defined and punished under Section 37 of Crimes Act 1900 (NSW) which states:

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

1. intentionally chokes, suffocates or strangles another person so as to render the other person unconscious, insensible or incapable of resistance, and
2. 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:

1. chokes, suffocates or strangles another person so as to render the other person unconscious, insensible or incapable of resistance, and
2. 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.

Jurisdiction / Case Law

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].

What must the prosecution prove?

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

The prosecution must prove the Accused’s guilt beyond reasonable doubt. That is a high standard of proof that the prosecution must achieve before someone can be convicted.

To establish Attempt 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:

1. attempted to choke, strangle or suffocate any person
2. (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 or Strangulation, what are your options?

National Criminal Lawyers (NCL) have been successful in defending several Attempt to Choke charges where the prosecution could not establish each of the elements to the required threshold of beyond reasonable doubt. We have also achieved several non-convictions for these charges for those who are found guilty or plead guilty.

It is for that reason that National Criminal Lawyers are the preferred specialist criminal solicitors in Sydney.

Our Senior Criminal Defence Lawyers, headed by Michael Moussa, one of Sydney’s Best Criminal Lawyers, will ensure that your case is closely examined to achieve the best of results.

NCL offer the following options for those who have been charged with Attempt to Choke, Suffocate or Strangle:

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 the 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.

Please contact us now for more information about your options.