The offence of choking, suffocation and strangulation in New South Wales

In December 2018, the NSW Parliament passed the Crimes Legislation Amendment Bill which inserted a new section 37(1A) into the Crimes Act 1900.

Unlike the existing section 37, subsection (1A) does not require the prosecution to prove that the defendant's actions were intended to render the complainant unconscious, insensible or incapable of resistance.

The new subsection has significantly broadened the situations where acts of choking can amounts to a discrete criminal offence.

Reasoning behind the new law

According to a Parliamentary Research Paper of September 2018:

"Non-lethal strangulation is a significant form of domestic violence offending designed to exert physical and psychological control over victims. Non-lethal strangulation may also act as indicator of future violence, including homicide."

The authors of the paper noted that:

"[S]trangulation offences "were not being charged under the NSW offence of strangulation, but rather were being charged as common assault or assault occasioning actual bodily harm offences".

They further noted that 600 people were charged under section 37 between 2014 and 2018, and less than half of those prosecutions resulted in convictions.

The authors expressed the view that:

• The requirement to prove the defendant's state of mind is a significant impediment to successfully prosecuting the offence of choking,
• The two year maximum prison sentence applicable to the offence of common assault does not adequately reflect the seriousness of the act of choking, nor does it send a sufficiently strong message to the community that the conduct is socially unacceptable, nor act as a strong enough deterrent to would-be offenders,
• The offence of assault occasioning actual bodily harm – which attracts a five year maximum penalty – is not always applicable to the act of choking because it generally requires the infliction of physical injuries that are "more than transient or trifling", which are not always occasioned during acts of choking, suffocation or strangulation, and
• The seriousness and prevalence of domestic violence offences in NSW, as well as the fact choking is a common feature of such offences, demands a discrete offence that is not difficult to establish.

The offence of choking, suffocation and strangulation in NSW

As a result of various inquiries and papers, section 37(1A) of the Crimes Act 1900 (NSW) ('the Act') was inserted into the Crimes Act 1900.

The offence prescribes a maximum prison term of five years for any person who " intentionally chokes, suffocates or strangles another person without the other person's consent".

The Act does not define the terms choke, suffocate or strangle, so the ordinary meaning of those words apply.

'Choke' has been defined as "severe difficulty in breathing because of a constricted or obstructed throat or a lack of air".

'Suffocate' means to "have or cause to have difficulty in breathing".

And 'strangle' means to "squeeze or constrict the neck".

Other acts of choking

Under section 37(1) of the Act, the maximum penalty increases to 10 years in prison where a person:

• Intentionally chokes, suffocates or strangles another so as to render them unconscious, insensible or incapable of resistance, and
• Is reckless as to rendering the other person unconscious, insensible or incapable of resistance.

And section 37(2) prescribes a maximum penalty of 25 years in prison for any person who:

• chokes, suffocates or strangles another so as to render them 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' is one that can be finalised in a higher court, such as the District or Supreme Court.

It includes a broad range of offences such as detain for advantage (kidnapping), larceny (stealing) and a most sexual offences.

Impact of the new law

Statistics suggest that 899 people have already been prosecuted under the new offence, which is around one-and-a-half times as many as had been prosecuted under section 37 over the entirety of the previous four years.

Criticism

The obvious criticism of section 37(1A) is that it is so broad that it captures situations well beyond the domestic violence situations envisaged by parliament, encompassing almost act of a person putting their hands or arms around the neck of, or hand on the mouth of, another person without that person's express or implied consent.

There is an argument that this has the potential to make a mockery of the law, especially if law enforcement officers apply the law in its literal sense.

Defences to choking, suffocation and strangulation

A range of defences are available for offences under section 37 of the Crimes Act, including:

• Self-defence
• Duress, and
• Necessity

Where evidence of any such defence is raised, the onus then shifts to the prosecution to prove beyond reasonable doubt that it does not apply.

If the prosecution is unable to 'negative' the defence, the defendant is entitled to an acquittal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.